Two senses of burden of Proof exist. One is the burden of Production and the other is known as the burden of going forward with the evidence. Sometimes it’s called the burden of persuasion (or risk of non-persuasion). The one bearing the burden of production but fails to meet it loses without going to the jury. The party that bears the burden of persuasion may get to the jury but will lose if he fails to meet this burden

Substantive law determines which party bears the burden of persuasion as to an issue. In Civil Cases the plaintiff (Plain) has the burden of persuasion as to the elements of its claim, while the defendant (Def) bears the burden of persuasion as to any defenses raised. In a defamation action the Plain has to prove the defamatory statement was made by Def. Def seeks to assert truth as a defense, and has the burden of establishing the truth of the statement.

PRESUMPTIONS IN CIVIL CASES. Normally the jury has discretion in deciding what inferences should arise from the evidence. A presumption, (pres) however, is a procedural device which requires the jury to draw a particular conclusion from certain proved basic facts.

Basic and Presumed Facts The proved fact from which the prescribed conclusion must be drawn is called the basic fact. The prescribed conclusion is called the presumed fact, which must be inferred if the basic fact is proved.

Example: The law presumes that a letter that was properly addressed and mailed, will be received in due course by the addressee. But, even absent this presumption, the jury could permissibly infer receipt of a letter from evidence of proper mailing. The presumption, however, requires the jury to find that the letter was received if they believe the letter was properly addressed and mailed. (This may be rebutted.) The facts of “proper addressing” and “proper mailing” are the basic facts which must be proved, “receipt of the letter” is the presumed fact which must be inferred if the basic facts are proved.

HOW PRESUMPTIONS WORK IN GENERAL. In dealing with presumptions, it’s important to distinguish between the treatment of basic facts and presumed facts.

a. Basic Facts. Presumptions come into play only if the proponent proves the basic facts. If no dispute about the basic facts exist, the presumption is triggered. If there is a dispute about the basic facts, the presumption comes into play only if the jury finds that the basic facts exist. The opponent of a presumption may always try to show that the basic facts don’t exist.

b. Effect of Triggering the Presumption. If the basic facts are found to exist, the presumption is triggered. The effect of the presumption differs, however, depending on whether it is an irrebuttable (or conclusive presumption) or a rebuttable presumption. If a conclusive presumption is triggered, its opponent may not attempt to disprove the presumed fact. With a rebuttable presumption, the opponent may try to disprove the presumed fact as well as the basic facts.

1. A conclusive presumption is really a substantive rule of law masquerading as a rule of evidence. It operates only if the fact finder is convinced of the existence of the basic facts. Thus, the opposing party may always challenge the existence of the basic facts.

REBUTTABLE PRESUMPTIONS Most presumptions (pres) are rebuttable. If the basic facts of a rebuttable pres are proved, the jury is required to find the presumed fact unless the opponent of the pres rebuts it. How much evidence one must produce to negate the effect of the pres depends on the jurisdiction’s approach to rebuttable pres. Two basic approaches to rebuttable pres exist.

a. Presumption Shifts burden of Persuasion. One view of rebut pres called the Morgan-McCormickapproach is that they shift the burden of persuasion. If the proponent triggers the pres by establishing the basic facts, the jury must find that the presumed fact exists unless the opponent persuades it that the presumed fact does not exist. That’s the effect of this type of pres; it places the burden on the opponent, of persuading the jury that the presumed fact does not exist.

Example. If Plain is trying to prove that Def received a letter, Plain testifies that she properly addressed and mailed the letter. Def cross-examines Plain about her testimony. Later Def testifies that he never received the letter. The judge should instruct the jury that if they find that Plain addressed and mailed the letter to Def, they MUST find that Def received it UNLESS Def convinced them by a preponderance of the evidence that he did not receive it.

This Presumption Version Furthers Public policy. By shifting the burden of persuasion to the opponent of the presumed fact, the Morgan-McCormick pres makes it more likely that the presumed fact will be found. This reflects a view that presumptions should be used to promote public policy by increasing the likelihood that juries will reach certain outcomes.

b. Presumption Shifts Production Burden: The Bursting Bubble Approach. Under this approach (Thayer-Wigmore) the pres acts merely to shift the burden of production to the opponent. In other words, the opponent of the pres may negate its effect merely by producing evidence that would allow a juror to find that the presumed fact does not exist. If the opponent does this, the pres disappears from the case. (the bubble bursts). This pres has a practical effect only if the opponent of the pres fails to produce evidence to rebut the presumed fact.

Example: Plain is trying to prove that Def received a particular letter. Plain testifies that she properly addressed and mailed the letter to Def. Def cross-examines Plain about her testimony. Later, Def testifies that he never received the letter. Under the bursting bubble approach, the judge should not give the jury an instruction. By testifying that he did not receive the letter, Def has produced sufficient evidence for the jury to find that the presumed fact (receipt of the letter) does not exist. Thus he has met his production burden and eliminated the presumption from the case. Remember, Def does not have to persuade the judge or jury that he did not receive the letter in order to negate the presumption; he need only produce evidence of non-receipt.

Presumption is Gone, But Logical Inference Remains Although the procedural effect of the pres may be overcome, any logical inference that flows from the basic facts remains. Thus if the jury believes that the letter was properly addressed and mailed, it may still infer that Def received it. The difference is the judge gives no jury instruction which is intended to cause the jury to reach a certain outcome.

Presumption Only a Procedural Convenience. The “bursting bubble approach“ to presumptions reflects a view that they are merely procedural conveniences designed to expedite litigation and (sometimes) to force the party with greater access to the evidence to come forward with it. Under this view, therefore, they should be given little weight.

c. Determining Which View to Apply. FRE 301 adopts the weaker form of presumption, shifting only the burden of production and not burden of persuasion to the opponent of the presumption. Keep in mind that the bursting bubble (FRE) approach views presumptions merely as a procedural convenience, whereas the Morgan-McCormick approach views presumptions as a means of advancing public policy.

SUMMARY OF PRESUMPTIONS IN CIVIL CASES and CRIMES
In dealing with presumptions, it is important to focus on three things,: a. the type of presumption involved; b. whether the basic facts have been contested; and c. whether evidence has been introduced that disputes the existence of the presumed facts.

The Constitution requires the state to prove each element of the crime beyond a reasonable doubt. This limits the ability of the state to use a presumption to prove an element of a crime. See Sandstrom v. Montana.