Rule 302 Presumptions in civil proceedings. (a) General rule. In all civil proceedings not otherwise provided for by statute or by these rules, a presumption imposes on the party against whom it is directed either (1) the burden of producing evidence, or (2) the burden of proof.

(b) Inconsistent presumptions. If two presumptions are mutually inconsistent, the presumption applies that is founded upon weightier considerations of policy and logic. If considerations of policy and logic are of equal weight neither presumption applies.

(c) Applicability of federal law. In all civil proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which federal law supplies the rule of decision is determined in accordance with federal law. [L 1980, c 164, pt of 1]




Disagreement over the nature, scope, and effect of legal presumptions has gone on for decades. The position most widely adopted in American jurisdictions is the Thayer view, sometimes termed the "bursting bubble" theory, McCormick 345. The sole effect of a legal presumption, in this view, is to impose upon the party against whom it is directed the requirement of producing evidence adequate to sustain a finding of its nonexistence. If this requirement is met, the presumption disappears. See W. Thayer, Preliminary Treatise on Evidence, 313-352 (1898). This theory is endorsed by Wigmore, see 9 J. Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law 2491(2) (3d ed. 1940) [hereinafter cited as Wigmore], with slight modifications, id. at 2498a, and is reflected in Fed. R. Evid. 301.

A contrary hypothesis, espoused by E. Morgan, Some Problems of Proof, 81 (1956), and McCormick 345, is that a presumption should have the more stringent effect of shifting the burden of proof to the party against whom it is directed. This position asserts that a presumption usually reflects an important social or legal policy, which "may need an extra boost in order to insure that that policy is not overlooked," McCormick, id. Under this view, the presumption does not vanish from the case upon presentation of evidence to rebut it. If the party against whom the presumption is directed fails to meet his burden of convincing the trier of fact of the nonexistence of the presumed fact by at least a preponderance of the evidence, the presumption is firmly established. This view is reflected in Uniform Rule of Evidence 301.

Although both positions are reasonable, each is limited. Many legal presumptions are based on serious and compelling policy grounds and, consistent with the views of Morgan and McCormick, should serve to shift the burden of proof to the adverse party. Others, however, reflect no public policy beyond facilitating the determination of the action in which they are introduced. Presumptions of this class derive their force from "a general declaration, the character and operation [of] which common experience has assigned them," Thayer, Preliminary Treatise on Evidence, 326 (1898).

A third approach to the classification of presumptions is reflected in Cal. Evid. Code 600-669 and is based on a synthesis suggested by Bohlen, The Effect of Rebuttable Presumptions of Law Upon the Burden of Proof, 68 U. Pa. L. Rev. 307 (1920). Under this approach, the Thayer view applies to presumptions unsupported by extrinsic policy considerations, the Morgan view to those that implement social policies. This article, which incorporates the Bohlen view of presumptions, is modeled generally upon the classification scheme adopted in the Cal. Evid. Code.

Subsection (a): This subsection establishes the two general categories within which all legal presumptions arising in civil actions must be encompassed. Rules 303(a) and 304(a) establish the criteria for determination of the category to which any presumption should be assigned.

Subsection (b): Although infrequent, the introduction of conflicting or inconsistent presumptions into the same action does occur. McCormick 345 points out:

A conflict between presumptions may arise as follows: W, asserting that she is the widow of H, claims her share of his property, and proves that on a certain day she and H were married. The adversary then proves that three or four years before her marriage to H, the alleged widow married another man. W's proof gives her the benefit of the presumption of the validity of a marriage. The adversary's proof gives rise to the general presumption of the continuance of a status or condition once proved to exist, and a specific presumption of the continuance of a marriage relationship.

Under the general classification scheme of this article, and the specific provision of this subsection, such a dilemma is simple to reconcile. The presumption of validity of a marriage is supported by compelling policy considerations, see Rule 304(c)(6) infra, while the presumption of continuance of a status or condition has no support other than that of probability and procedural convenience, see Rule 303(c)(15) infra. Therefore, the presumption of validity of a marriage would apply, and the contrary presumption would be extinguished.

In a holding consistent with this provision, the Hawaii Supreme Court, in In Re Soriano, 35 H. 756 (1940), held that the presumption of validity of a second marriage and the innocence of the parties to it prevails over the presumption of the continued existence of a former marriage. The rule is consistent also with Hawaii Rev. Stat. 584-4(b) (1976), governing presumption of paternity and providing that in the event of conflicting presumptions with respect to paternity the one supported by "weightier considerations of policy and logic will prevail." Presumptions of equal weight simply cancel each other out. In such circumstances neither presumption is directed to the trier of fact. See, e.g., City of Montpelier v. Town of Calais, 114 Vt. 5, 39 A.2d 350 (1944), in which conflicting presumptions of regularity of official acts were held to be mutually cancelling.

Subsection (c): This provision is identical with Uniform Rule of Evidence 302. The applicable federal law in this context is Fed. R. Evid. 301, which provides:

In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.

The effect of this single-theory rule is further elaborated in the legislative reports that accompany Fed. R. Evid. 301.



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