Intro to the Federal Rules of Evidence - 75

B. PRESUMPTIONS (ART. III)

1. Burden of Proof
a. Burden of production
i) Definition
A party’s duty to come forward with some evidence that A exists.

ii) Consequence of failure
The court will decide the issue against him as a matter of law.

b. Burden of persuasion
i) Definition
If at the close of the evidence the jury cannot decide whether A existed, the jury must find against on that issue.

ii) Consequence of failure
A person with burden of persuasion will lose on that issue.

2. Presumptions (FRE 301)
a. Definition
It is a rule that requires that a particular inference be drawn from an ascertained set of facts.

It is a form of substitute proof because proof of presumed fact is rendered unnecessary once evidence has been introduced of the basic fact that gives rise to the presumption.

b. Comparison
i) Rebuttable presumption
A burden of proof of the non-existence of the presumed fact. (if .., must.., unless..).

FRE 301 governs only rebuttable presumptions.

ii) Conclusive/irrebuttable presumption (if…, must ….)
They are actually substantive rules of law and thus beyond the scope of the FRE.

iii) Inference
A presumption is mandatory. In contrast, an inference is permissible. For example, the doctrine of res ipsa loquitur involves an inference of negligence, but not a conclusion of negligence.


c. Effect of presumptions
i) Shift of burden of production only
The burden of production is shifted on the party against whom it is directed.

But the burden of persuasion remains intact.

ii) Rebutting a presumption
A presumption is overcome when the adversary produces some evidence contradicting the presumed fact.

3. Choice of Law (FRE 302)
Under the Erie doctrine, State law relating the effect of a presumption applies.