Note by Federal Judicial Center
The bill passed by the House substituted
a substantially different rule in place of
that prescribed by the Supreme Court. The
Senate bill substituted yet a further version,
which was accepted by the House, was enacted
by the Congress, and is the rule shown above.
...
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 socalled "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.