ARTICLE
III.



PRESUMPTIONS



 



Rule 301  Definitions.  The following
definitions apply under this article:



(1)  "Presumption" is (A) a rebuttable
assumption of fact, (B) that the law requires to be made, (C) from another fact
or group of facts found or otherwise established in the action.



(2)  The following are not presumptions under this
article:



(A)  Conclusive presumption.  The trier of fact
is compelled by law to accept an assumption of fact as conclusive, regardless
of the strength of the opposing evidence; or



(B)  Inference.  The trier of fact may
logically and reasonably make an assumption from another fact or group of facts
found or otherwise established in the action, but is not required to do so; or



(C)  Pre-evidentiary assumption.  The trier of
fact is compelled by law to accept the assumption as either rebuttable or
conclusive without regard to any other fact determination.



(3)  "Burden of producing evidence" means
the obligation of a party to introduce evidence of the existence or
nonexistence of a relevant fact sufficient to avoid an adverse peremptory
finding on that fact.



(4)  "Burden of proof" means the obligation
of a party to establish by evidence a requisite degree of belief concerning a
relevant fact in the mind of the trier of fact.  The burden of proof may
require a party to establish the existence or nonexistence of a fact by a
preponderance of the evidence or by clear and convincing proof. [L 1980, c 164,
pt of §1]



 



RULE 301 COMMENTARY



 



  The meaning and scope of "presumption" have
historically been subject to considerable uncertainty.  One authority observes,
"'presumption' is the slipperiest member of the family of legal terms,
except its first cousin, 'burden of proof,'" McCormick §342.  One
commentator has pointed out at least eight different meanings attributed to the
term by the courts, Laughlin, In Support of the Thayer Theory of Presumption,
52 Mich. L. Rev. 195 (1953).  The purpose of this rule is to define
presumptions and related terms.  As the first sentence of the rule points out,
the definitions of related terms, such as that of "burden of proof,"
apply only "under this article."  The scheme embodied in this article
is pragmatic, and the definitions are operational.  The model for this entire
article is Cal. Evid. Code §§600-669.



  Paragraph (1):  This definition accords generally with Cal.
Evid. Code §600(a), with one major addition.  The California code provisions
distinguish between "conclusive presumptions" and "rebuttable
presumptions"; therefore, the qualification of rebuttability is not
incorporated into the California definition.  This rule treats conclusive
presumptions as nonpresumptions, see comment relating to paragraph (2)(C)
infra.



  The essential characteristics of a presumption under this
rule are:  (1) it is rebuttable; (2) it is an assumption; (3) it is legally
required to be made; and (4) it derives from a fact or facts found or
established in the action.  These requirements are conjunctive; in the absence
of any one of them, no presumption results within the intent of these rules. 
This accords generally with the views of leading authorities, see, e.g.,
McCormick §342.  The definition is intended to be read in connection with the
operational language of Rules 303(b) and 304(b) infra.  That the law "requires"
the presumption to be drawn means that, upon establishment of the basic facts
(i.e., "another fact or group of facts"), the presumption is
mandatory unless contradictory evidence is adduced.  The quantum of
contradictory evidence necessary to rebut a presumption varies according to the
nature of the presumption, see Rules 303(b) and 304(b) infra.



  Support for this definition may be found in Hawaii Rev. Stat.
§490:1-201(31) (1976), which defines the term in its application to statutes
within the compass of the Uniform Commercial Code:



"Presumption"
or "presumed" means that the trier of fact must find the existence of
the fact presumed unless and until evidence is introduced which would support a
finding of its nonexistence.



Operationally, the Rule 301(1) definition applies only in civil
cases, see Rules 302, 303, and 304 infra, and against the prosecution in
criminal cases, see Rule 306(b).  Presumptions against the accused in criminal
cases are defined and governed exclusively by Rule 306(a).



  Judicial attempts at defining the term, although not
inconsistent with this rule, suffer from over-inclusiveness.  In The King v.
Gibson, 6 H. 310, 313 (1882), the court observed, "A presumption of law
dispenses with direct proof of the thing presumed from certain facts."  A
later decision, In Re Title of Kioloku, 25 H. 357, 365 (1920), essayed a more
detailed definition:



A presumption
may be defined as the probable inference which common sense, enlightened by
human knowledge and experience, draws from the connection, relation and
coincidence of facts and circumstances with each other.  When a fact shown in
evidence necessarily accompanies the fact in issue it gives rise to a strong
presumption as to the existence of the fact to be proved.  But if on the other
hand the fact shown in evidence only usually accompanies the fact in issue it
gives rise merely to a probable presumption of the existence of the fact to be
proved.



The distinction drawn by the court between a "strong
presumption" and a "probable presumption" appears to correspond
to a limited extent with the distinction in this rule between a
"presumption" and an "inference," except that the
essential, operative difference between the terms as employed here--that
presumptions, unless rebutted, must be drawn whereas inferences may be drawn--
is missing in the court's definition.  This distinction was recognized in
another early case:  "[A]ssuming that the defendant adduced sufficient
evidence to raise a presumption that the fire was caused by the order of the board
of health, the burden or duty was then cast on the plaintiffs to introduce
evidence to rebut that presumption...."  Kwong Lee Yuen & Co. v.
Alliance Co., 16 H. 674, 684 (1905).



  Paragraph (2):  McCormick observes, "There are rules of
law that are often incorrectly called presumptions that should be specifically
distinguished from presumptions," McCormick §342.  This paragraph is
intended to establish these distinctions.  Conclusive presumptions, also termed
"irrebuttable presumptions," may be established by statute, see,
e.g., Hawaii Rev. Stat. §76-51 (1976), or by common law.  The court in In Re
Application of Sherretz, 40 H. 366, 371 (1953), noted:  "The words
'conclusive presumption' give rise to a legal presumption of law that may not
be rebutted.  In other words it is a legal conclusion."  The legal effect
of this characteristic of conclusiveness is to establish the presumed fact as
true, irrespective of the actual truth or falsity of the assumption. 
Conclusive presumptions thus resemble substantive legal rules, and are
therefore not treated in these evidence rules.



  Although superficially similar to a presumption, an
"inference" has several important distinguishing characteristics. 
First and most important, it is an assumption that is permissible but never
compelled.  In Soichi Fukuoka v. Dodo, 43 H. 337, 340 (1959), the court pointed
out:  "There are many classes or kinds of evidence, among which is the
permissible deduction the trier of facts may reasonably draw from other
established facts before the court, which deduction is usually characterized in
the law of evidence as an inference."  Another important distinction
characterizing an inference is that it does not operate to shift the burden of
proof or of producing evidence, see McCormick §342.  Therefore, under Rule 1102
infra, inferences are not usually the subject of judicial comment, whereas
presumptions must necessarily be explained by the court to the jury.



  The Hawaii Supreme Court has also distinguished between
presumptions and such doctrinal or standardized inferences as res ipsa
loquitur, classified as a presumption by many other jurisdictions, see, e.g.,
Cal. Evid. Code §646.  Although an early court decision, Morgan v. Yamada, 26
H. 17, 24 (1921), defined the doctrine of res ipsa loquitur as a
"rebuttable presumption" imposing on the party against whom it is
directed the burden of introducing "evidence to meet and offset its
effect," accord, Ciacci v. Wooley, 33 H. 247 (1934), later decisions are
more exact.  In Cozine v. Hawaiian Catamaran, Ltd., 49 H. 77, 87, 412 P.2d 669,
678 (1966), the court stated: "[A]n instruction covering the doctrine of
res ipsa loquitur should permit, but not compel, an inference of
negligence."  See also Winter v. Scherman, 57 H. 279, 554 P.2d 1137 (1976),
which defines the doctrine as merely a rebuttable inference which enables a
plaintiff to put his case before the jury.



  Pre-evidentiary assumptions, in contrast to conclusive
presumptions, are subject to rebuttal.  However, these assumptions are
assignments of preliminary burden of proof or of production of evidence on the
basis of rules of substantive law, not of facts found or established in the
action.  The most characteristic examples of such assumptions are the
"presumption" of innocence, established in Hawaii by statute, see
Hawaii Rev. Stat. §701-114(2) (1976), and the "presumption" of
sanity, see, e.g., Territory v. Adiarte, 37 H. 463 (1947).  Neither assumption
has an inferential basis; neither depends for its establishment on the
introduction of facts in the action.



  The law establishes pre-evidentiary assumptions for a variety
of reasons.  The "presumption" of innocence safeguards the
constitutional right of due process.  The "presumption" of sanity is
founded in part on policy.  As the court noted in Adiarte, id. at 470:



If that legal
presumption did not exist, the government would be under the necessity of
adducing affirmative evidence of sanity in every case, thereby seriously
hampering the enforcement of the laws....  Consequently, to relieve the
prosecution of that necessity, the law presumes that everyone charged with
crime was sane at the time of its commission....  However, this presumption is
a rule of evidence and nothing else.  It is...subject to being negatived by
slight evidence to the contrary which may be adduced either by the prosecution
or defense.



Reasons of law or policy underlie other such pre-evidentiary
assumptions, e.g., the assumption of knowledge of the law, Kapena v.
Kaleleonalani, 6 H. 579 (1885); and the assumption that parties to a contract
are competent to contract, Soares v. Freitas, 38 H. 64 (1948).



  Paragraphs (3) and (4):  These provisions accord generally
with Cal. Evid. Code §§110 and 115, upon which they were modeled.  The two
definitions serve to contrast the burden of going forward with the evidence
(see Rule 303 infra) and the burden of proof (see Rule 304 infra).  The
distinction is especially useful as it enables the division of presumptions
into the two classes established by Rules 303 and 304.  The definitions,
accordingly, are limited in their application to this article.