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    28 USC APPENDIX - RULES OF EVIDENCE Rule 301                 01/24/94
 
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    TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS
 
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    Rule 301. Presumptions in General in Civil Actions and Proceedings
 
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      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.
 
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    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1931.)
 
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               NOTES OF ADVISORY COMMITTEE ON PROPOSED 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 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 Sec.
    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.
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