Rule 304 Presumptions imposing burden of proof. (a) General rule. A presumption established to implement a public policy other than, or in addition to, facilitating the determination of the particular action in which the presumption is applied imposes on the party against whom it is directed the burden of proof.

(b) Effect. The effect of a presumption imposing the burden of proof is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced sufficient to convince the trier of fact of the nonexistence of the presumed fact. Except as otherwise provided by law or by these rules, proof by a preponderance of the evidence is necessary and sufficient to rebut a presumption established under this rule.

(c) Presumptions. The following presumptions, and all other presumptions established by law that fall within the criteria of subsection (a) of this rule, are presumptions imposing the burden of proof.

(1) Owner of legal title is owner of beneficial title. The owner of the legal title to property is presumed to be the owner of the full beneficial title. This presumption may be rebutted only by clear and convincing proof.

(2) Official duty regularly performed; lawful arrest. It is presumed that official duty has been regularly performed. This presumption does not apply on an issue as to the lawfulness of an arrest if it is found or otherwise established that the arrest was made without a warrant.

(3) Intention of ordinary consequences of voluntary act. A person is presumed to intend the ordinary consequences of the person's voluntary act.

(4) Doing of an unlawful act. An unlawful intent is presumed from the doing of an unlawful act.

(5) Any court, any judge acting as such. Any court of this State or the United States, or any court of general jurisdiction in any other state or nation, or any judge of such a court, acting as such, is presumed to have acted in the lawful exercise of its jurisdiction. This presumption applies only when the act of the court or judge is under collateral attack.

(6) Ceremonial marriage. A ceremonial marriage is presumed to be valid.

(7) Death. A person who is absent for a continuous period of five years, during which the person has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead. [L 1980, c 164, pt of 1; gen ch 1985]




The criteria established by this rule are modeled upon, and accord generally with, those of Cal. Evid. Code 660-669, with modifications appropriate to the rules of law of this jurisdiction.

Subsection (a): This provision is analogous in purpose to Rule 303(a) supra. It establishes the general criteria for determination of those presumptions that impose on the adverse party the burden of proof. The standard of determination of "public policy" in this subsection is identical with that discussed in the comment to Rule 303(a). The catalogue of presumptions in subsection (c) of this rule, although not exhaustive, is determinative for the presumptions listed and is illustrative of the class of presumptions governed by this rule.

Subsection (b): This provision is analogous to Rule 303(b) supra. Its purpose is to define the effect of the presumptions governed by this rule. Since the effect is to shift the ultimate burden of proof, the general requirement is proof by "a preponderance of the evidence." Despite disagreement by some authorities, the most reasonable meaning of this requirement, and the interpretation given it in most jurisdictions, is "proof which leads the jury to find that the existence of the contested fact is more probable than its nonexistence," McCormick 339.

Subsection (c): The presumptions in this list parallel the traditional common law presumptions incorporated in Cal. Evid. Code 662-668, with some modifications.

Although presumption (1) apparently has not been litigated at the appellate level in Hawaii, it is a traditional common law presumption supported by a public policy so compelling as to require clear and convincing proof to overcome it.

Presumption (2), that official duty has been regularly performed, has been affirmed by the Hawaii Supreme Court, e.g., DeMello v. Wilson, 28 H. 298 (1925); Nichols v. Wah Chong Sun, 28 H. 395 (1925); State v. Hawaiian Dredging Co., 48 H. 152, 397 P.2d 593 (1964); State v. Midkiff, 49 H. 456, 421 P.2d 550 (1966). The qualification barring extension of the presumption to the lawfulness of arrests or searches conducted without warrants is implicit in search and seizure law, e.g., State v. Barnes, 58 H. 333, 335, 568 P.2d 1207, 1209 (1977): "[A]n arrest without a warrant will be upheld only where there was probable cause for the arrest." In State v. Kaluna, 55 H. 361, 363, 520 P.2d 51, 55 (1974), the court declared:

[S]ince it was conducted without a warrant, the search carries an initial presumption of unreasonableness.... To overcome this presumption, the State must show that the facts or the case justified the police in searching without a warrant and that the search itself was no broader than necessary to satisfy the need which legitimitized departure from the warrant requirement in the first place.

Presumption (3) finds support in a long line of Hawaii Supreme Court decisions. In Lord v. Lord, 35 H. 26, 39 (1939), the court said: "Where a person does an act he is presumed in doing so to have intended the natural consequences thereof." See also Yuen v. French, 29 H. 625 (1927); Territory v. Palai, 23 H. 133 (1916). However, consistent with the statutory requirement that every element of a crime charged must be proved, Hawaii Rev. Stat. 701-114 (1976), and that state of mind, when designated by the statute, is an element of the crime, Hawaii Rev. Stat. 702-204 (1976), intent may not be established by presumption in criminal actions.

Presumption (5) accords with Hawaii Supreme Court decision. In In Re Kawahara Yasutaro, 15 H. 667, 670 (1904), the court said: "The presumption is in favor of the regularity of the proceedings of courts of record and the burden is placed on one alleging errors therein to show it affirmatively." In a later decision, State v. Villados, 55 H. 394, 397, 520 P.2d 427, 430 (1974), the court addressed the aspect of presumptive jurisdiction:

[C]ircuit courts are courts of general jurisdiction in this State, and therefore the presumption is in favor of retention rather than divestiture of jurisdiction.... [B]efore a party can claim that an act or statute has the effect of divesting jurisdiction which has regularly and fully vested, the law in favor of such divestment must be clear and unambiguous.

Presumption (6) is established by Hawaii Supreme Court decision. In Estate of Ah Leong, 34 H. 161, 165 (1937), the court said:

[T]he contention is that upon proof of the celebration of a ceremonial marriage...followed by an actual living together publicly...the law will presume, in the absence of countervailing proof, that all of the prerequisites to a valid marriage...were complied with.

The rule of law supporting this contention has been so often judicially announced that it may be considered firmly established.

See also Hawaii Rev. Stat. 572-13(c) (1976), providing that a certified copy of a certificate of marriage is prima facie evidence of the fact of marriage.

Presumption (7) accords with Hawaii Rev. Stat. 560:1-107(3), and modifies the traditional common law presumption of death after a seven-year period of absence.


Case Notes


Jury instruction that deceased presumed to have exercised due care was superfluous, where defendant had burden of proving deceased was negligent. 6 H. App. 516, 730 P.2d 342.


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