Rule 302  Presumptions in civil proceedings. 
(a)  General rule.  In all civil proceedings not otherwise provided for by
statute or by these rules, a presumption imposes on the party against whom it
is directed either (1) the burden of producing evidence, or (2) the burden of
proof.



(b)  Inconsistent presumptions.  If two
presumptions are mutually inconsistent, the presumption applies that is founded
upon weightier considerations of policy and logic.  If considerations of policy
and logic are of equal weight neither presumption applies.



(c)  Applicability of federal law.  In all
civil proceedings, the effect of a presumption respecting a fact which is an
element of a claim or defense as to which federal law supplies the rule of
decision is determined in accordance with federal law. [L 1980, c 164, pt of
§1]



 



RULE 302 COMMENTARY



 



  Disagreement over the nature, scope, and effect of
legal presumptions has gone on for decades.  The position most widely adopted
in American jurisdictions is the Thayer view, sometimes termed the
"bursting bubble" theory, McCormick §345.  The sole effect of a legal
presumption, in this view, is to impose upon the party against whom it is
directed the requirement of producing evidence adequate to sustain a finding of
its nonexistence.  If this requirement is met, the presumption disappears.  See
W. Thayer, Preliminary Treatise on Evidence, 313-352 (1898).  This theory is
endorsed by Wigmore, see 9 J. Wigmore, A Treatise on the Anglo-American System
of Evidence in Trials at Common Law §2491(2) (3d ed. 1940) [hereinafter cited
as Wigmore], with slight modifications, id. at §2498a, and is reflected in Fed.
R. Evid. 301.



  A contrary hypothesis, espoused by E. Morgan, Some Problems
of Proof, 81 (1956), and McCormick §345, is that a presumption should have the
more stringent effect of shifting the burden of proof to the party against whom
it is directed.  This position asserts that a presumption usually reflects an
important social or legal policy, which "may need an extra boost in order
to insure that that policy is not overlooked," McCormick, id.  Under this
view, the presumption does not vanish from the case upon presentation of
evidence to rebut it.  If the party against whom the presumption is directed
fails to meet his burden of convincing the trier of fact of the nonexistence of
the presumed fact by at least a preponderance of the evidence, the presumption
is firmly established.  This view is reflected in Uniform Rule of Evidence 301.



  Although both positions are reasonable, each is limited. 
Many legal presumptions are based on serious and compelling policy grounds and,
consistent with the views of Morgan and McCormick, should serve to shift the
burden of proof to the adverse party.  Others, however, reflect no public
policy beyond facilitating the determination of the action in which they are
introduced.  Presumptions of this class derive their force from "a general
declaration, the character and operation [of] which common experience has
assigned them," Thayer, Preliminary Treatise on Evidence, §326 (1898).



  A third approach to the classification of presumptions is
reflected in Cal. Evid. Code §§600-669 and is based on a synthesis suggested by
Bohlen, The Effect of Rebuttable Presumptions of Law Upon the Burden of Proof,
68 U. Pa. L. Rev. 307 (1920).  Under this approach, the Thayer view applies to
presumptions unsupported by extrinsic policy considerations, the Morgan view to
those that implement social policies.  This article, which incorporates the
Bohlen view of presumptions, is modeled generally upon the classification
scheme adopted in the Cal. Evid. Code.



  Subsection (a):  This subsection establishes the two general
categories within which all legal presumptions arising in civil actions must be
encompassed.  Rules 303(a) and 304(a) establish the criteria for determination
of the category to which any presumption should be assigned.



  Subsection (b):  Although infrequent, the introduction of
conflicting or inconsistent presumptions into the same action does occur. 
McCormick §345 points out:



A conflict between presumptions may
arise as follows:  W, asserting that she is the widow of H, claims her share of
his property, and proves that on a certain day she and H were married.  The
adversary then proves that three or four years before her marriage to H, the
alleged widow married another man.  W's proof gives her the benefit of the
presumption of the validity of a marriage.  The adversary's proof gives rise to
the general presumption of the continuance of a status or condition once proved
to exist, and a specific presumption of the continuance of a marriage
relationship.



  Under the general classification scheme of this article, and
the specific provision of this subsection, such a dilemma is simple to
reconcile.  The presumption of validity of a marriage is supported by
compelling policy considerations, see Rule 304(c)(6) infra, while the
presumption of continuance of a status or condition has no support other than
that of probability and procedural convenience, see Rule 303(c)(15) infra. 
Therefore, the presumption of validity of a marriage would apply, and the
contrary presumption would be extinguished.



  In a holding consistent with this provision, the Hawaii
Supreme Court, in In Re Soriano, 35 H. 756 (1940), held that the presumption of
validity of a second marriage and the innocence of the parties to it prevails
over the presumption of the continued existence of a former marriage.  The rule
is consistent also with Hawaii Rev. Stat. §584-4(b) (1976), governing
presumption of paternity and providing that in the event of conflicting
presumptions with respect to paternity the one supported by "weightier
considerations of policy and logic will prevail."  Presumptions of equal
weight simply cancel each other out.  In such circumstances neither presumption
is directed to the trier of fact.  See, e.g., City of Montpelier v. Town of
Calais, 114 Vt. 5, 39 A.2d 350 (1944), in which conflicting presumptions of
regularity of official acts were held to be mutually cancelling.



  Subsection (c):  This provision is identical with Uniform
Rule of Evidence 302.  The applicable federal law in this context is Fed. R.
Evid. 301, which provides:



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.



The effect of this single-theory rule is further elaborated in
the legislative reports that accompany Fed. R. Evid. 301.