ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS

Rule 301. Presumptions in General Civil Actions and Proceedings-Notes

NOTES TO RULE 301

HISTORY: (Jan. 2, 1975, P.L. 93-595, § 1, 88 Stat. 1931.)

Notes of Advisory Committee on Rules.

This rule governs presumptions generally. See Rule 302 for presumptions controlled
by state law and Rule 303 [deleted] for those against an accused in a criminal case.

Presumptions governed by this rule are given the effect of placing upon the opposing
party the burden of establishing the nonexistence of the presumed fact, once the
party invoking the presumption establishes the basic facts giving rise to it. The same
considerations of fairness, policy, and probability which dictate the allocation of the
burden of the various elements of a case as between the prima facie case of a
plaintiff and affirmative defenses also underlie the creation of presumptions. These
considerations are not satisfied by giving a lesser effect to presumptions. Morgan and
Maguire, Looking Backward and Forward at Evidence, 50 Harv.L.Rev. 909, 913
(1937); Morgan, Instructing the Jury upon Presumptions and Burdon of Proof, 47
Harv.L.Rev. 59, 82 1933); Cleary, Presuming and Pleading: An Essay on Juristic
Immaturity, 12 Stan.L.Rev. 5 (1959).

The so-called "bursting bubble" theory, under which a presumption vanishes upon the
introduction of evidence which would support a finding of the nonexistence of the
presumed fact, even though not believed, is rejected as according presumptions too
"slight and evanescent" an effect. Morgan and Maguire, supra, at p. 913.

In the opinion of the Advisory Committee, no constitutional infirmity attends this
view of presumptions. In Mobile, J. & K.C.R. Co. v. Turnipseed, 219 U.S. 35, 31 S.Ct.
136, 55 L.Ed. 78 (1910), the Court upheld a Mississippi statute which provided that in
actions against railroads proof of injury inflicted by the running of trains should be
prima facie evidence of negligence by the railroad. The injury in the case had
resulted from a derailment. The opinion made the points (1) that the only effect of
the statute was to impose on the railroad the duty of producing some evidence to the
contrary, (2) that an inference may be supplied by law if there is a rational
connection between the fact proved and the fact presumed, as long as the opposite
party is not precluded from presenting his evidence to the contrary, and (3) that
considerations of public policy arising from the character of the business justified the
application in question. Nineteen years later, in Western & Atlantic R. Co. v.
Henderson, 279 U.S. 639, 49 S.Ct. 445, 73 L.Ed. 884 (1929), the Court overturned a
Georgia statute making railroads liable for damages done by trains, unless the
railroad made it appear that reasonable care had been used, the presumption being
against the railroad. The declaration alleged the death of plaintiff's husband from a
grade crossing collision, due to specified acts of negligence by defendant. The jury
were instructed that proof of the injury raised a presumption of negligence; the
burden shifted to the railroad to prove ordinary care; and unless it did so, they
should find for plaintiff. The instruction was held erroneous in an opinion stating (1)
that there was no rational connection between the mere fact of collision and
negligence on the part of anyone, and (2) that the statute was different from that in
Turnipseed in imposing a burden upon the railroad. The reader is left in a state of
some confusion. Is the difference between a derailment and a grade crossing collision
of no significance? Would the Turnipseed presumption have been bad if it had
imposed a burden of persuasion on defendant, although that would in nowise have
impaired its "rational connection"? If Henderson forbids imposing a burden of
persuasion on defendants, what happens to affirmative defenses?

Two factors serve to explain Henderson. The first was that it was common ground
that negligence was indispensable to liability. Plaintiff thought so, drafted her
complaint accordingly, and relied upon the presumption. But how in logic could the
same presumption establish her alternative grounds of negligence that the engineer
was so blind he could not see decedent's truck and that he failed to stop after he saw
it? Second, take away the basic assumption of no liability without fault, as
Turnipseed intimated might be done ("considerations of public policy arising out of
the character of the business"), and the structure of the decision in Henderson fails.
No question of logic would have arisen if the statute had simply said: a prima facie
case of liability is made by proof of injury by a train; lack of negligence is an
affirmative defense, to be pleaded and proved as other affirmative defenses. The
problem would be one of economic due process only. While it seems likely that the
Supreme Court of 1929 would have voted that due process was denied, that result
today would be unlikely. See, for example, the shift in the direction of absolute
liability in the consumer cases. Prosser, The Assault upon the Citadel (Strict Liability
to the Consumer), 69 Yale L.J. 1099 (1960).

Any doubt as to the constitutional permissibility of a presumption imposing a burden
of persuasion of the non-existence of the presumed fact in civil cases is laid at rest by
Dick v. New York Life Ins. Co., 359 U.S. 437, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959).
The Court unhesitatingly applied the North Dakota rule that the presumption against
suicide imposed on defendant the burden of proving that the death of insured, under
an accidental death clause, was due to suicide. "

Proof of coverage and of death by gunshot wound shifts the burden to the insurer to
establish that the death of the insured was due to his suicide." 359 U.S. at 443, 79
S.Ct. at 925. "

In a case like this one, North Dakota presumes that death was accidental and places
on the insurer the burden of proving that death resulted from suicide." Id. at 446, 79
S.Ct. at 927.

The rational connection requirement survives in criminal cases, Tot v. United States,
319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), because the Court has been
unwilling to extend into that area the greater-includes-the-lesser theory of Ferry v.
Ramsey, 277 U.S. 88, 48 S.Ct. 443, 72 L.Ed. 796 (1928). In that case the Court
sustained a Kansas statute under which bank directors were personally liable for
deposits made with their assent and with knowledge of insolvency, and the fact of
insolvency was prima facie evidence of assent and knowledge of insolvency. Mr.
Justice Holmes pointed out that the state legislature could have made the directors
personally liable to depositors in every case. Since the statute imposed a less
stringent liability, "the thing to be considered is the result reached, not the possibly
inartificial or clumsy way of reaching it." Id. at 94, 48 S.Ct. at 444. Mr. Justice
Sutherland dissented: though the state could have created an absolute liability, it did
not purport to do so; a rational connection was necessary, but lacking, between the
liability created and the prima facie evidence of it; the result might be different if the
basis of the presumption were being open for business.

The Sutherland view has prevailed in criminal cases by virtue of the higher standard
of notice there required. The fiction that everyone is presumed to know the law is
applied to the substantive law of crimes as an alternative to complete
unenforceability. But the need does not extend to criminal evidence and procedure,
and the fiction does not encompass them. "Rational connection" is not fictional or
artificial, and so it is reasonable to suppose that Gainey should have known that his
presence at the site of an illicit still could convict him of being connected with
(carrying on) the business, United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13
L.Ed.2d 658 (1965), but not that Romano should have known that his presence at a
still could convict him of possessing it, United States v. Romano, 382 U.S. 136, 86
S.Ct. 279, 15 L.Ed.2d 210 (1965).

In his dissent in Gainey, Mr. Justice Black put it more artistically:

It might be argued, although the Court does not so argue or hold, that Congress if it
wished could make presence at a still a crime in itself, and so Congress should be
free to create crimes which are called 'possession' and 'carrying on an illegal
distillery business' but which are defined in such a way that unexplained presence is
sufficient and indisputable evidence in all cases to support conviction for those
offenses. See Ferry v. Ramsey, 277 U.S. 88, 48 S.Ct. 443, 72 L.Ed. 796. Assuming
for the sake of argument that Congress could make unexplained presence a criminal
act, and ignoring also the refusal of this Court in other cases to uphold a statutory
presumption on such a theory, see Heiner v. Donnan, 285 U.S. 312, 52 S.Ct. 358, 76
L.Ed. 772, there is no indication here that Congress intended to adopt such a
misleading method of draftsmanship, nor in my judgement could the statutory
provisions if so construed escape condemnation for vagueness, under the principles
applied in Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888, and
many other cases.

380 U.S. at 84, n. 12, 85 S.Ct. at 766.

AND THE MAJORITY OPINION IN ROMANO AGREED WITH HIM:

It may be, of course, that Congress has the power to make presence at an illegal still
a punishable crime, but we find no clear indication that it intended to so exercise this
power. The crime remains possession, not presence, and with all due deference to
the judgement of Congress, the former may not constitutionally be inferred from the
latter.

382 U.S. at 144, 86 S.Ct. at 284.

The rule does not spell out the procedural aspects of its application. Questions as to
when the evidence warrants submission of a presumption and what instructions are
proper under varying states of fact are believed to present no particular difficulties.

Notes of Committee on the Judiciary, House Report No. 93-650.

Rule 301 as submitted by the Supreme Court provided that in all cases a
presumption imposes on the party against whom it is directed the burden of proving
that the nonexistence of the presumed fact is more probable than its existence. The
Committee limited the scope of Rule 301 to "civil actions and proceedings" to
effectuate its decision not to deal with the question of presumptions in criminal cases.
(See note on [proposed] Rule 303 in discussion of Rules deleted). With respect to the
weight to be given a presumption in a civil case, the Committee agreed with the
judgement implicit in the Court's version that the so called "bursting bubble" theory
of presumptions, whereby a presumption vanished upon the appearance of any
contradicting evidence by the other party, gives to presumptions too slight an effect.
On the other hand, the Committee believed that the Rule proposed by the Court,
whereby a presumption permanently alters the burden of persuasion, no matter how
much contradicting evidence is introduced--a view shared by only a few courts--lends
too great a force to presumptions. Accordingly, the Committee amended the Rule to
adopt an intermediate position under which a presumption does not vanish upon the
introduction of contradicting evidence, and does not change the burden of
persuasion; instead it is merely deemed sufficient evidence of the fact presumed, to
be considered by the jury or other finder of fact.

Notes of Committee on the Judiciary, Senate Report No. 93-1277.

The rule governs presumptions in civil cases generally. Rule 302 provides for
presumptions in cases controlled by State law.

As submitted by the Supreme Court, presumptions governed by this rule were given
the effect of placing upon the opposing party the burden of establishing the
non-existence of the presumed fact, once the party invoking the presumption
established the basic facts giving rise to it.

Instead of imposing a burden of persuasion on the party against whom the
presumption is directed, the House adopted a provision which shifted the burden of
going forward with the evidence. They further provided that "even though met with
contradicting evidence, a presumption is sufficient evidence of the fact presumed, to
be considered by the trier of fact." The effect of the amendment is that presumptions
are to be treated as evidence.

The committee feels the House amendment is ill-advised. As the joint committees
(the Standing Committee on Practice and Procedure of the Judicial Conference and
the Advisory Committee on the Rules of Evidence) stated: "Presumptions are not
evidence, but ways of dealing with evidence." This treatment requires juries to
perform the task of considering "as evidence" facts upon which they have no direct
evidence and which may confuse them in performance of their duties. California had
a rule much like that contained in the House amendment. It was sharply criticized by
Justice Traynor in Speck v. Sarver [20 Cal. 2d 585, 128 P. 2d 16, 21 (1942)] and was
repealed after 93 troublesome years [Cal. Ev. Code 1965 § 600].

Professor McCormick gives a concise and compelling critique of the presumption as
evidence rule:

. . . . .

Another solution, formerly more popular than now, is to instruct the jury that the
presumption is "evidence", to be weighed and considered with the testimony in the
case. This avoids the danger that the jury may infer that the presumption is
conclusive, but it probably means little to the jury and certainly runs counter to
accepted theories of the nature of evidence.

[McCormick, Evidence, 669 (1954); Id. 825 (2d ed. 1972)].

For these reasons the committee has deleted that provision of the House-passed rule
that treats presumptions as evidence. The effect of the rule as adopted by the
committee is to make clear that while evidence of facts giving rise to a presumption
shifts the burden of coming forward with evidence to rebut or meet the presumption,
it does not shift the burden of persuasion on the existence of the presumed facts. The
burden or persuasion remains on the party to whom it is allocated under the rules
governing the allocation in the first instance.

The court may instruct the jury that they may infer the existence of the presumed
fact from proof of the basic facts giving rise to the presumption. However, it would
be inappropriate under this rule to instruct the jury that the inference they are to
draw is conclusive.

Notes of Conference Committee, House Report No. 93-1597.

The House bill provides that a presumption in civil actions and proceedings shifts to
the party against whom it is directed the burden of going forward with evidence to
meet or rebut it. Even though evidence contradicting the presumption is offered, a
presumption is considered sufficient evidence of the presumed fact to be considered
by the jury. The Senate amendment provides that a presumption shifts to the party
against whom it is directed the burden of going forward with evidence to meet or
rebut the presumption, but it does not shift to that party the burden of persuasion on
the existence of the presumed fact.

Under the Senate amendment, a presumption is sufficient to get a party past an
adverse party's motion to dismiss made at the end of his case-in-chief. If the
adverse party offers no evidence contradicting the presumed fact, the court will
instruct the jury that if it finds the basic facts, it may presume the existence of the
presumed fact. If the adverse party does offer evidence contradicting the presumed
fact, the court cannot instruct the jury that it may presume the existence of the
presumed fact from proof of the basic facts. The court may, however, instruct the
jury that it may infer the existence of the presumed fact from proof of the basic
facts.

The Conference adopts the Senate amendment.


Rule 301. Presumptions in General Civil Actions and Proceedings
Rule 302. Applicability of State Law in Civil Actions and Proceedings
Notes: Rule 301. Presumptions in General Civil Actions and Proceedings
Federal Rules of Evidence: Primary Sources On The Net
Federal Rules of Evidence: Primary Sources On The Net
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Rule 301 Purpose and Construction-LII Site