Burden of proof

Effect of presumptions and other substitutes for evidence

In general, a presumption or other substitute for evidence shifts the burden of evidence, but not the burden of proof.

While it is often loosely said that a presumption shifts the burden of proof, and, in certain cases, it has been held that a presumption may in fact shift the burden of proof or the burden of persuasion, some cases distinguishing between the concepts of burden of proof and the burden of production, or using the phrases in their precise meanings, hold that the position of the burden of proof or persuasion is not affected by a presumption, but that a presumption shifts the burden of going forward with the evidence, or the burden of production of evidence. The other party, who asserts the contrary of the presumption, will have the burden of rebutting the presumption. If a presumption is not rebutted, the party with the burden of proof prevails on that issue by virtue of the presumption. Otherwise, where evidence contradicting the presumption has been offered, the presumption disappears and is not weighed or treated as evidence.

A presumption is a guide for the courts in fixing the burden of producing proof. When a presumption shifts the burden of proof, the presumption may remain in effect even after evidence rebutting the presumption has been introduced. The jury must decide if the evidence is sufficient to overcome the presumption. These presumptions are expressions of social policy, such as the validity of marriage, sanity in civil cases, legitimacy of a child born in wedlock, and the correctness of judgments.

The position prescribed by the Federal Rules of Evidence is that in all civil actions and proceedings not otherwise provided for by Act of Congress or by the 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 non persuasion, which remains throughout the trial upon the party on whom it was originally cast.

The Uniform Rules of Evidence provide that the term “presumption” means that when a basic fact is found to exist, the presumed fact is assumed to exist until the nonexistence of the presumed fact is determined as provided for in the Uniform Rules governing the effect of presumptions in civil cases.

Some courts recognize different types of presumptions, some of which have the effect of placing on the disfavored party the burden of persuading the fact finder that the facts are contrary to the presumed facts by varying degrees of proof. For example, where the evidence necessary to prove a prima facie case is missing due to the actions of the opposing party, one type of presumption shifts the burden of proof to ensure that a jury decides the issue of negligence, and thus, the presumption supplies an essential element of the case, negligence, and shifts to the defendant the burden of proving non-negligence.