Rule 301 Definitions. The following definitions apply under this article:

(1) "Presumption" is (A) a rebuttable assumption of fact, (B) that the law requires to be made, (C) from another fact or group of facts found or otherwise established in the action.

(2) The following are not presumptions under this article:

(A) Conclusive presumption. The trier of fact is compelled by law to accept an assumption of fact as conclusive, regardless of the strength of the opposing evidence; or

(B) Inference. The trier of fact may logically and reasonably make an assumption from another fact or group of facts found or otherwise established in the action, but is not required to do so; or

(C) Pre-evidentiary assumption. The trier of fact is compelled by law to accept the assumption as either rebuttable or conclusive without regard to any other fact determination.

(3) "Burden of producing evidence" means the obligation of a party to introduce evidence of the existence or nonexistence of a relevant fact sufficient to avoid an adverse peremptory finding on that fact.

(4) "Burden of proof" means the obligation of a party to establish by evidence a requisite degree of belief concerning a relevant fact in the mind of the trier of fact. The burden of proof may require a party to establish the existence or nonexistence of a fact by a preponderance of the evidence or by clear and convincing proof. [L 1980, c 164, pt of 1]




The meaning and scope of "presumption" have historically been subject to considerable uncertainty. One authority observes, "'presumption' is the slipperiest member of the family of legal terms, except its first cousin, 'burden of proof,'" McCormick 342. One commentator has pointed out at least eight different meanings attributed to the term by the courts, Laughlin, In Support of the Thayer Theory of Presumption, 52 Mich. L. Rev. 195 (1953). The purpose of this rule is to define presumptions and related terms. As the first sentence of the rule points out, the definitions of related terms, such as that of "burden of proof," apply only "under this article." The scheme embodied in this article is pragmatic, and the definitions are operational. The model for this entire article is Cal. Evid. Code 600-669.

Paragraph (1): This definition accords generally with Cal. Evid. Code 600(a), with one major addition. The California code provisions distinguish between "conclusive presumptions" and "rebuttable presumptions"; therefore, the qualification of rebuttability is not incorporated into the California definition. This rule treats conclusive presumptions as nonpresumptions, see comment relating to paragraph (2)(C) infra.

The essential characteristics of a presumption under this rule are: (1) it is rebuttable; (2) it is an assumption; (3) it is legally required to be made; and (4) it derives from a fact or facts found or established in the action. These requirements are conjunctive; in the absence of any one of them, no presumption results within the intent of these rules. This accords generally with the views of leading authorities, see, e.g., McCormick 342. The definition is intended to be read in connection with the operational language of Rules 303(b) and 304(b) infra. That the law "requires" the presumption to be drawn means that, upon establishment of the basic facts (i.e., "another fact or group of facts"), the presumption is mandatory unless contradictory evidence is adduced. The quantum of contradictory evidence necessary to rebut a presumption varies according to the nature of the presumption, see Rules 303(b) and 304(b) infra.

Support for this definition may be found in Hawaii Rev. Stat. 490:1-201(31) (1976), which defines the term in its application to statutes within the compass of the Uniform Commercial Code:

"Presumption" or "presumed" means that the trier of fact must find the existence of the fact presumed unless and until evidence is introduced which would support a finding of its nonexistence.

Operationally, the Rule 301(1) definition applies only in civil cases, see Rules 302, 303, and 304 infra, and against the prosecution in criminal cases, see Rule 306(b). Presumptions against the accused in criminal cases are defined and governed exclusively by Rule 306(a).

Judicial attempts at defining the term, although not inconsistent with this rule, suffer from over-inclusiveness. In The King v. Gibson, 6 H. 310, 313 (1882), the court observed, "A presumption of law dispenses with direct proof of the thing presumed from certain facts." A later decision, In Re Title of Kioloku, 25 H. 357, 365 (1920), essayed a more detailed definition:

A presumption may be defined as the probable inference which common sense, enlightened by human knowledge and experience, draws from the connection, relation and coincidence of facts and circumstances with each other. When a fact shown in evidence necessarily accompanies the fact in issue it gives rise to a strong presumption as to the existence of the fact to be proved. But if on the other hand the fact shown in evidence only usually accompanies the fact in issue it gives rise merely to a probable presumption of the existence of the fact to be proved.

The distinction drawn by the court between a "strong presumption" and a "probable presumption" appears to correspond to a limited extent with the distinction in this rule between a "presumption" and an "inference," except that the essential, operative difference between the terms as employed here--that presumptions, unless rebutted, must be drawn whereas inferences may be drawn-- is missing in the court's definition. This distinction was recognized in another early case: "[A]ssuming that the defendant adduced sufficient evidence to raise a presumption that the fire was caused by the order of the board of health, the burden or duty was then cast on the plaintiffs to introduce evidence to rebut that presumption...." Kwong Lee Yuen & Co. v. Alliance Co., 16 H. 674, 684 (1905).

Paragraph (2): McCormick observes, "There are rules of law that are often incorrectly called presumptions that should be specifically distinguished from presumptions," McCormick 342. This paragraph is intended to establish these distinctions. Conclusive presumptions, also termed "irrebuttable presumptions," may be established by statute, see, e.g., Hawaii Rev. Stat. 76-51 (1976), or by common law. The court in In Re Application of Sherretz, 40 H. 366, 371 (1953), noted: "The words 'conclusive presumption' give rise to a legal presumption of law that may not be rebutted. In other words it is a legal conclusion." The legal effect of this characteristic of conclusiveness is to establish the presumed fact as true, irrespective of the actual truth or falsity of the assumption. Conclusive presumptions thus resemble substantive legal rules, and are therefore not treated in these evidence rules.

Although superficially similar to a presumption, an "inference" has several important distinguishing characteristics. First and most important, it is an assumption that is permissible but never compelled. In Soichi Fukuoka v. Dodo, 43 H. 337, 340 (1959), the court pointed out: "There are many classes or kinds of evidence, among which is the permissible deduction the trier of facts may reasonably draw from other established facts before the court, which deduction is usually characterized in the law of evidence as an inference." Another important distinction characterizing an inference is that it does not operate to shift the burden of proof or of producing evidence, see McCormick 342. Therefore, under Rule 1102 infra, inferences are not usually the subject of judicial comment, whereas presumptions must necessarily be explained by the court to the jury.

The Hawaii Supreme Court has also distinguished between presumptions and such doctrinal or standardized inferences as res ipsa loquitur, classified as a presumption by many other jurisdictions, see, e.g., Cal. Evid. Code 646. Although an early court decision, Morgan v. Yamada, 26 H. 17, 24 (1921), defined the doctrine of res ipsa loquitur as a "rebuttable presumption" imposing on the party against whom it is directed the burden of introducing "evidence to meet and offset its effect," accord, Ciacci v. Wooley, 33 H. 247 (1934), later decisions are more exact. In Cozine v. Hawaiian Catamaran, Ltd., 49 H. 77, 87, 412 P.2d 669, 678 (1966), the court stated: "[A]n instruction covering the doctrine of res ipsa loquitur should permit, but not compel, an inference of negligence." See also Winter v. Scherman, 57 H. 279, 554 P.2d 1137 (1976), which defines the doctrine as merely a rebuttable inference which enables a plaintiff to put his case before the jury.

Pre-evidentiary assumptions, in contrast to conclusive presumptions, are subject to rebuttal. However, these assumptions are assignments of preliminary burden of proof or of production of evidence on the basis of rules of substantive law, not of facts found or established in the action. The most characteristic examples of such assumptions are the "presumption" of innocence, established in Hawaii by statute, see Hawaii Rev. Stat. 701-114(2) (1976), and the "presumption" of sanity, see, e.g., Territory v. Adiarte, 37 H. 463 (1947). Neither assumption has an inferential basis; neither depends for its establishment on the introduction of facts in the action.

The law establishes pre-evidentiary assumptions for a variety of reasons. The "presumption" of innocence safeguards the constitutional right of due process. The "presumption" of sanity is founded in part on policy. As the court noted in Adiarte, id. at 470:

If that legal presumption did not exist, the government would be under the necessity of adducing affirmative evidence of sanity in every case, thereby seriously hampering the enforcement of the laws.... Consequently, to relieve the prosecution of that necessity, the law presumes that everyone charged with crime was sane at the time of its commission.... However, this presumption is a rule of evidence and nothing else. It is ... subject to being negatived by slight evidence to the contrary which may be adduced either by the prosecution or defense.

Reasons of law or policy underlie other such pre-evidentiary assumptions, e.g., the assumption of knowledge of the law, Kapena v. Kaleleonalani, 6 H. 579 (1885); and the assumption that parties to a contract are competent to contract, Soares v. Freitas, 38 H. 64 (1948).

Paragraphs (3) and (4): These provisions accord generally with Cal. Evid. Code 110 and 115, upon which they were modeled. The two definitions serve to contrast the burden of going forward with the evidence (see Rule 303 infra) and the burden of proof (see Rule 304 infra). The distinction is especially useful as it enables the division of presumptions into the two classes established by Rules 303 and 304. The definitions, accordingly, are limited in their application to this article.



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