§ 5.01 INTRODUCTION

• Jurisdiction: United States

§ 5.01. INTRODUCTION

The law governing presumptions is one of the most difficult areas of evidence law for students and practitioners alike. Some of the problems are caused by inconsistent terminology, which must be understood before endeavoring to go any further.¹ Another problem arises because two major scholars in the field (Thayer and Morgan) disagreed about the effect presumptions should have. Moreover, the courts have added their own, and often inconsistent, nuances to this area of law. Finally, because of constitutional considerations, criminal presumptions differ from civil presumptions.

Federal Rule 301 is the principal provision on presumptions. Rule 302 governs the applicability of state presumptions in federal cases in which state law supplies the rule of decision (e.g., diversity cases).

Rule 301 covers rebuttable presumptions in civil cases. There is no rule dealing with criminal presumptions in the Rules of Evidence.² Although the application of Rule 301 depends on an understanding of the terms "presumption" and "burden of proof," neither term is defined in the rule.³ Rule 301 does not create any presumptions; it merely governs their effect. The rule further limits its own reach by explicitly recognizing legislative authority over the effect of presumptions. The introductory language restricts...