See also: AUTHENTICATION–Presumption of Genuineness; CHAIN OF CUSTODY; CHARACTER–In General: Presumption of Good Character; CHILDREN–Competency to Testify: Presumption; COMPETENCE; CORPORATIONS; COURT RECORDS;
FRAUD–Presumption; INSANITY; INTENT; INTOXICATION
KNOWLEDGE–Presumption; LAW; MAILING; MARRIAGE; NEGLIGENCE; PHYSICAL CONDITION
REAL PROPERTY–Presumptions as to Work on Real Property; RES IPSA LOQUITUR
SAFETY  § 1.  Presumption of Reasonable Safety; UNDUE INFLUENCE; WITNESSES–Presumption of Credibility
WITNESSES–Failure to Produce or Examine.

A presumption is a rule providing that when certain facts are in evidence, a certain conclusion must be drawn in the absence of any contrary evidence.  A presumption thereby places the burden of going forward with evidence on the matter to the other side.{footnote}FRE 301.{/footnote} 

Where the initial fact which might give rise to a presumption is disputed, the trier of fact must be instructed to first make a determination as to the intitial fact. 

Effect of Presumption

Unless the presumption is conclusive (see below), a presumption shifts the burden to the party against whom it operates to produce evidence to rebut the presumption.{footnote}FRE 301; Clay v. Traders Bank, 708 F.2d 1347 (8th Cir. 1983)(presumption of insolvency 90 days before bankruptcy).{/footnote}  To defeat the presumption, the rebuttal evidence must be sufficient to raise a genuine issue of fact.{footnote}Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 (1981)(Title VII).{/footnote}

Effect of Rebuttal Evidence

The "Bursting Bubble" Theory.  The majority rule is that once the other side has rebutted the presumption sufficiently to support a finding contrary to the presumption, the presumption disappears (the "bursting bubble" theory).{footnote}Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976); Franciscan Sisters Health Care Corp. v. Dean, 95 Ill. 2d 452, 448 N.E.2d 872 (1983).{/footnote}  Some states provide that the presumption remains "evidence" in the case which may be considered by the jury in making its determination.{footnote}Mutual Life Ins. Co. v. Maddox, 128 So. 383 (Ala. 1930).{/footnote}  Some commentators argue that the presumption should have the effect of requiring the other party to rebut the presumption by a preponderance of the evidence in order to prevail on the question.{footnote}Morgan, ‘____.{/footnote}  Another approach, adopted by California, is to follow the latter rule as to presumptions grounded in public policy, but to follow the "bursting bubble" theory to other presumptions.{footnote}Cal. § 660 et seq. {/footnote}  The federal rules are not entirely clear on this point, resulting in several approaches being taken by federal courts.{footnote}Following "bursting bubble" approach: American Cas. Co. of Reading, Penn. v. Nordic Leasing, Inc., 42 F.3d 725 (2d Cir. 1994)(mailbox rule); In re Yoder Co., 758 F.2d 1114 (6th Cir. 1985); Legille v. Dann, 544 F.2d 1 (D.C. Cir. 1976); Shakespeare Co. v. Silstar Corp. of America, 906 F. Supp. 997 (D.S.C. 1995).
 

See also United States v. Jessup, 757 F.2d 378 (1st Cir. 1985)(presumed risk of flight for drug offenders; court should consider legislature’s presumption when weighing evidence).

Check A.C. Aukerman Co. v. R.I. Chaides Const. Co., 960 F.2d 1020 (Fed. Cir. 1992).{/footnote}

Burden of Proof.  If the presumption has been sufficiently rebutted, the presumption does not effect the burden of proof, which generally remains with the party who originally bore it.{footnote}FRE 301; Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 (1981)(Title VII); United States v. Jessup, 757 F.2d 378 (1st Cir. 1985)(risk of flight for drug offender); Clay v. Traders Bank,  708 F.2d 1347 (8th Cir. 1983)(presumption of insolvency 90 days before bankruptcy); Patti v. Schweiker, 669 F.2d 582 (9th Cir. 1982)(social security benefits); Presbyterian/St. Luke’s Medical Center v. NLRB, 653 F.2d 450 (10th Cir. 1981); Panduit Corp. v. All States Plastic Mfg. Co., 744 F.2d 1564 (Fed. Cir. 1984)(attorney disqualification); United States v. Freitas, 602 F. Supp. 1283 (N.D. Cal. 1985)(presumption of dangerousness when fixing bail).

But see City of Boston v. S.S. Texaco Texas, 773 F.2d 1396 (1st Cir. 1985)(Rule 301 held not to change admiralty rule that where one vessel collides with an anchored vessel or a navigational device, there is not only presumption of negligence on part of pilot vessel but also shift of burden of proof); James v. RIver Parishes Co., 686 F.2d 1129 (5th Cir. 1982).{/footnote}

Conclusive Presumptions

Where a presumption is conclusive, no contrary evidence may be received.  Conclusive presumptions are generally regarded as substantive rules of law rather than procedural rules of evidence. 

Source of Law

While most states have both statutory and common law presumptions, some only allow presumptions created by statute.  In diversity actions and other federal suits where state law governs a claim or defense, the applicable state law governs as to what presumptions are allowed and the effect of those presumptions.{footnote}FRE 302; Dick v. New York Life Ins. Co., 359 U.S. 437, 3 L.Ed.2d 935, 79 S.Ct. 921 (1959); Melville v. American Home Assurance Co., 443 F. Supp. 1064 (E.D. Pa. 1977), rev’d on other grounds, 584 F.2d 1306 (3d Cir. 1978)(diversity action){/footnote}

Rational Connection Required

Statutory presumptions will be observed by courts so long as a rational connection appears between the intitial fact which has been proved and the conclusion to be presumed.{footnote}Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976)(upholding presumprion that coal miners suffering from black lung disease entitled to benefits); Mobile, J. & K.C.R. Co. v. Turnipseed, 219 U.S. 35 (1910)(presumption that injury caused by train resulted from negligence of railroad upheld).{/footnote}  A conclusive presumption is unjustified where it yields incorrect results most of the time.{footnote}Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), rehearing denied 501 U.S. 1277, 112 S.Ct. 27, 115 L.Ed.2d 1109.{/footnote}  In criminal cases, due process requires that it be more likely than not that the presumed fact will as a general matter follow from the proved fact.{footnote}Leary v. United States, 395 U.S. 6 (1969)(presumption that person possessing marijuana knows it was illegally imported struck down).  Check County Court of Ulster County v. Allen, 442 U.S. 140 (1979).{/footnote}

Conflicting Presumptions

Where both parties are able to cite evidence giving rise to contradictory presumption in their favor on the same issue, the court will apply the presumption which is grounded on the weightier of policy concerns and better logic.  If both are equally well-founded, neither presumption will be recognized.{footnote}Uniform Rules of Evidence. R. 15; Legille v. Dann, 544 F.2d 1 (D.C. Cir. 1976).{/footnote}

Criminal Cases

Mandatory presumptions which require that the jury find a certain element of an offense to be satisfied unless the defendant comes forward with evidence to rebut the presumption violate the defendant’s right to Due Process by shifting the burden of proof, and are not permitted in criminal cases.{footnote} [3348]Carella v. California, __U.S.__, 105 L.Ed.2d 218, 109 S.Ct. 2419 (1989) (per curiam) (presumption of embezzlement from failure to return rental car); Rose v. Clark, 478 U.S. 570, 584 (1986); Sandstrom v. Montana, 442 U.S. 510, 520-24 (1979); Patterson v. New York, 432 U.S. 197, 215 (1977); United States v. Johnson, 805 F.2d 1518 (11th Cir. 1986).  {/footnote}y  A permissive inference does not violate due process because the prosecution still
has the burden of persuading the jury that the suggested conclusion should be
inferred based on the predicate facts proven.{footnote} [3349]Ulster County Court v. Allen, 442 U.S. 140, 157‑163 (1979).{/footnote}

In criminal cases, a presumption cannot be relied upon to convict where the defendant introduced sufficient evidence to create a reasonable doubt as to his guilt.{footnote}Check United States v. Gainey, 380 U.S. 63 (1965).{/footnote}  Nor may the jury be instructed as to even a permissive presumption where the presumed fact is not supported by the evidence.{footnote}Check Francis v. Franklin, 471 U.S. 307, 85 L.Ed.2d 344, 105 S.Ct. 1965 (1985).  Check United States v. Roberts, 844 F.2d 537 (8th Cir. 1988).{/footnote}

Administrative Proceedings

It has been held that FRE 301, which governs presumptions, is inapplicable to agency decisions.{footnote} [3352] American Coal Co. v. Benefits Review Bd., 738 F.2d 387 (10th Cir. 1984)(labor benefits).

But see Sinatra v. Heckler, 566 F. Supp. 1354 (E.D.N.Y. 1983)(FRE 301 persuasive authority for proper handling of Social Security Administration presumptions).{/footnote}

Various Subjects of Presumptions

Actions of Government Officials.  Government officials are presumed to perform their duties properly{footnote}Mullins v. U.S. Dept. of Energy, 50 F.3d 990 (Fed. Cir. 1995), rehearing denied, en banc suggestion declined.{/footnote} and in good faith.{footnote}Bridge v. U.S. Parole Comm’n, 981 F.2d 97 (3d Cir. 1992); Mullins v. U.S. Dept. of Energy, 50 F.3d 990 (Fed. Cir. 1995), rehearing denied, en banc suggestion declined.{/footnote}  This presumption has generally been described as strong, albeit rebuttable.{footnote}Blaze Const., Inc. v. United States, 27 Fed. Cl. 646 (Fed. Cl. 1993).

See also Fisher v. United States, 860 F.Supp. 680 (D. Ariz. 1994)(must be clear evidence to the contrary); Szpunar-Lojasiewicz v. I.R.S., 876 F. Supp. 465 (W.D.N.Y. 1994)(must be clear and convincing evidence to contrary).{/footnote}