Federal Rules of Evidence/Presumptions in Civil Actions

Article III of the Federal Rules of Evidence deals with presumptions and burdens of proof. It applies to civil actions—cases arising under non-criminal laws, such as contract, property and tort.

Rule 301. Presumptions in General Civil Actions and Proceedings

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 term "burden of proof" is often used in legal discourse, but for a technical analysis of the law, it is too vague. There are actually two forms of the burden of proof, commonly referred to as the burden of going forward and the burden of persuasion. Both of these burdens are addressed by Rule 301.

Burden of going forward

At any given time, one party is obligated to produce evidence regarding a claim or defense. This is the burden of going forward. When a presumption of fact is triggered, the other side has the burden to prove the non-existence of that fact. Yet the committee notes and house judiciary report for Rule 301 rejects a bursting bubble approach to the burden. That is, even if a party introduces adequate evidence contrary to the presumed fact, the presumption does not simply vanish—the presumption remains a part of the fact-finder's calculus.

For example, take a hypothetical civil case where one element of the claim is that it was raining on a given night. The plaintiff introduces evidence that the ground was wet the next morning. Imagine this creates a presumption that it rained the night before. The defendant must then rebut this presumption with other evidence: maybe eyewitnesses who say it wasn't raining, maybe evidence that a truck dumped water on the ground overnight. If a preponderance of the evidence disproves the presumption, the defendant has met his burden of persuasion. However, the presumption that it rained the night before remains may still be considered by the jury or finder of fact, and alone may be sufficient evidence of the rain.

Nevertheless, some Federal Courts still apply the bursting bubble approach. Under this approach, in the above example, the eye-witness testimony that it did not rain would entirely negate the presumption that it rained, and the presumption could not be considered by the finder of fact.

This approach is unique to civil cases. Presumptions are not found in criminal cases because of the due process guarantees of the Constitution. The prosecution must always prove each element of the crime beyond a reasonable doubt.

Burden of persuasion

Beyond a reasonable doubt is one example of a burden of persuasion. That particular burden is the burden that applies when proving a criminal charge. In civil cases, the usual burden of persuasion is either preponderance of the evidence ("more likely than not") or clear and convincing evidence.

Unlike the burden of going forward, the burden of persuasion never shifts. Allowing it to shift would make no sense, because it only applies in the context of the factfinder's final decision—to the reasoning of the judge or jury in reaching their verdict. The plaintiff always has the burden to persuade the factfinder that their claim is valid; the civil defendant always has the burden to persuade the factfinder that their defense is valid.

Note that in criminal cases, the burden of persuasion rests with the prosecution at all times, even when the burden of going forward shifts to the defendant. For example, if the defendant raises an affirmative defense, the prosecution must persuade the jury beyond a reasonable doubt that the defense is invalid.

Rule 302. Applicability of State Law in Civil Actions and Proceedings

In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which State law supplies the rule of decision is determined in accordance with State law.

Rule 302 applies to civil cases brought to federal court under diversity jurisdiction. Diversity jurisdiction is a complex issue of civil procedure that merits little discussion here, except to say that it involves federal courts interpreting the law of states. Whenever a federal court is considering an issue of state law, Rule 302 requires the court to apply that state's law on presumptions to the proceeding. This means that the burden of going forward in such cases may not necessarily follow Rule 301.