Rule 303  Presumptions imposing burden of
producing evidence.  (a)  General rule.  A presumption established to
implement no public policy other than to facilitate the determination of the
particular action in which the presumption is applied imposes on the party
against whom it is directed the burden of producing evidence.



(b)  Effect.  The effect of a presumption
imposing the burden of producing evidence is to require the trier of fact to
assume the existence of the presumed fact unless and until evidence is
introduced which would support a finding of its nonexistence, in which case no
instruction on presumption shall be given and the trier of fact shall determine
the existence or nonexistence of the presumed fact from the evidence and
without regard to the presumption.  Nothing in this rule shall be construed to
prevent the drawing of any inferences.



(c)  Presumptions.  The following presumptions,
and all other presumptions established by law that fall within the criteria of
subsection (a) of this rule, are presumptions imposing the burden of producing
evidence:



(1)  Money delivered by one to another.  Money
delivered by one to another is presumed to have been due to the latter.



(2)  Thing delivered by one to another.  A thing
delivered by one to another is presumed to have belonged to the latter.



(3)  Obligation delivered up to the debtor.  An
obligation delivered up to the debtor is presumed to have been paid.



(4)  Obligation possessed by creditor.  An obligation
possessed by a creditor is presumed not to have been paid.



(5)  Payment of earlier rent or installments.  The
payment of earlier rent or installments is presumed from a receipt for later
rent or installments.



(6)  Things possessed.  The things which a person
possesses are presumed to be owned by the person.



(7)  Exercise of act of ownership.  A person who
exercises acts of ownership over property is presumed to be the owner of it.



(8)  Judgment determines, sets forth rights of
parties.  A judgment, when not conclusive, is presumed to correctly determine
or set forth the rights of the parties, but there is no presumption that the
facts essential to the judgment have been correctly determined.



(9)  Writing.  A writing is presumed to have been
truly dated.



(10)  Letter properly addressed and mailed.  A letter
correctly addressed and properly mailed is presumed to have been received in
the ordinary course of mail.



(11)  Trustee's conveyance to a particular person.  A
trustee or other person, whose duty it was to convey real property to a
particular person, is presumed to have actually conveyed to the person when
such presumption is necessary to perfect title of such person or the person's
successor in interest.



(12)  Ancient document affecting real or personal
property interest.  A deed or will or other writing purporting to create,
terminate, or affect an interest in real or personal property is presumed
authentic if:



(A)  It is at least twenty years old;



(B)  It is in such condition as to create no
reasonable suspicion concerning its authenticity;



(C)  It was kept, or if found was found, in a
place where such writing, if authentic, would be likely to be kept or found;
and



(D)  Persons having an interest in the matter
have been generally acting as if it were authentic.



(13)  Book purporting to be published by public
authority.  A book purporting to be printed or published by public authority is
presumed to have been so printed or published.



(14)  Book purporting to contain reports of adjudged
cases.  A book purporting to contain reports of cases adjudged in the tribunals
of the state or nation where the book is published is presumed to contain
correct reports of such cases.



(15)  Continuation of a fact, condition, or state.  A
fact, condition, or state of things is presumed to continue.



(16)  Paid bills.  A bill for goods or services that
has been paid is presumed to be authentic and to embody fair and reasonable
charges for the itemized goods or services. [L 1980, c 164, pt of §1; gen ch
1985; am L 2001, c 142, §2]



 



RULE 303 COMMENTARY



 



  The criteria established by this rule are modeled
upon, and accord generally with, those of Cal. Evid. Code §§630-646, with
modifications appropriate to the rules of law of this jurisdiction.



  Subsection (a):  This provision establishes the general
criteria for determination of those presumptions that impose on the adverse
party only the burden of producing evidence.  Although it is arguable that any
assumption which gains the status of a legal presumption finds some support in
policy, even if no more than the policy of procedural convenience, such
considerations do not meet the standards of "public policy" within
the intent of this subsection and Rule 304(a).  A "public policy"
should be (1) compelling, and (2) extrinsic to the action in which the
presumption is offered.  The catalogue of presumptions in subsection (c) of
this rule, while not exhaustive, is determinative for these presumptions and is
illustrative of the class of presumptions appropriately governed by this rule.



  Subsection (b):  The purpose of the definition of the term
"burden of producing evidence" in Rule 301(3) supra, is to clarify
the nature of the burden in terms of the obligation imposed on the party
against whom it is directed.  The purpose of the present provision, in
contrast, is to define the effect of a Rule 303 presumption.  The degree of
proof necessary to support a finding of nonexistence should be, as McCormick
suggests, more than a "scintilla," McCormick §338.  "To amount
to more than a mere scintilla the evidence must be of a character sufficiently
substantial, in view of all the circumstances of the case, to warrant the
jury...in finding from it the fact to establish which the evidence was
introduced."  Holstein v. Benedict, 22 H. 441, 445 (1915).  One federal
court suggested that it should be "evidence of such quality and weight
that reasonable and fair-minded men in the exercise of impartial judgment might
reach different conclusions," Boeing Co. v. Shipman, 411 F.2d 365, 374
(5th Cir. 1969).



  The last sentence of this subsection is applicable in
circumstances in which the burden has been met and the presumption overcome. 
Although the trier of fact is barred from treating the presumption as
established, the facts in evidence which initially created the presumption,
balanced against the evidence offered to rebut it, may give rise to a
permissible inference, and nothing in this rule should be construed to bar such
an inference.



  Subsection (c):  Although the list of presumptions in this
subsection closely parallels the traditional common law presumptions
incorporated in Cal. Evid. Code §§631-646, several changes have been effected
consistent with Hawaii law.  The California provision treating the doctrine of
res ipsa loquitur as a presumption, Cal. Evid. Code §646, is omitted, consistent
with the Hawaii Supreme Court determination that the doctrine is not a
presumption but a permissible inference, see commentary to Rule 301(2) supra. 
Presumption (15), "Continuation of a fact, condition, or state," is
based upon Hawaii Supreme Court decisions.



  Presumption (10) finds support in Territory v. Alohikea, 24
H. 570, 571 (1918):  "[T]he mailing of a letter, postage prepaid, raises a
presumption of receipt by the addressee."  In Ahlo v. Tai Lung, 9 H. 272
(1893), the court declined to extend the presumption of receipt of a letter to
include a presumption that it had been answered.



  Presumption (12), establishing the criteria for the
presumption of authenticity of ancient documents, is addressed in detail by the
court in Hulihee v. Heirs of Hueu, 57 H. 312, 315, 555 P.2d 495, 498 (1976).



The customary minimum requirements are
that the document must have been in existence for a period of not less than
thirty years, that when originally discovered it must have been in some place
where it would be natural to find a genuine document of its tenor and it must
be unsuspicious in appearance.  In the case of deeds of land, a fourth
requirement is often stated, to the effect that the party claiming under the
instrument or his predecessors must have been in occupation of the land since
the time of the document's purported execution or some other circumstance
giving an equivalent inference of genuineness must appear in addition to the
required age, custody, and appearance.



Under the present rule, the age criterion has been changed to
20 years to comport with Rule 901(b)(8) of these rules and Fed. R. Evid.
901(b)(8).



  The criteria for establishing the presumption of authenticity
of an ancient document in this rule and the requirements for authentication of
an ancient document in Rule 901(b)(8) are similar but not redundant because
each serves a discrete evidentiary function.  Rule 901(b)(8) is a preliminary
admissibility requirement; an ancient document must qualify under the criteria
established by that provision before it can even be introduced into evidence. 
Having surmounted the initial hurdle of admissibility, the document may be
offered to the trier of fact as presumptively authentic on the basis of the
same criteria, on the condition that the adverse party does not offer evidence
in rebuttal sufficient to meet the burden of producing evidence.  Should he
succeed in doing so, the document remains in evidence, but the party upon whose
behalf it has been introduced is not entitled to an instruction on the presumption
of its authenticity.



  Presumption (15) finds support in a series of Hawaii Supreme
Court decisions.  In Carey v. Hawaiian Lumber Mills, 21 H. 506, 511 (1913), the
court said:  "It is a rule of evidence that where the existence of a fact,
condition or state of things is once established, the law presumes that such
fact, condition, or state of things continues to exist as before, until the
contrary is shown, or a different presumption is raised."  See also
Drummond v. Makaena, 30 H. 116 (1927).  In subsequent decisions, the court
reaffirmed this general rule with qualification.  The presumption can be
invoked only for conditions or things which by their nature are continuous
rather than transitory, Henry Waterhouse Trust Co. v. Rawlins, 33 H. 876 (1936);
and it can be overcome by a contrary presumption, Tropic Builders, Ltd. v.
Naval Ammunition Depot, 48 H. 306, 402 P.2d 440 (1965).



 



RULE 303 SUPPLEMENTAL COMMENTARY



 



  The Act 142, Session Laws 2001 amendment provided that a paid
bill for goods or services is presumed to be authentic and to embody fair and
reasonable charges for the itemized goods or services.



 



Case Notes



 



  Error to instruct jury that deceased presumed to have
exercised due care, where there was evidence deceased was negligent.  6 H. App.
516, 730 P.2d 342.