§ 5.04 EFFECT OF PRESUMPTIONS

• Jurisdiction: United States

§ 5.04. EFFECT OF PRESUMPTIONS

There are two principal views on the effect of presumptions in civil cases: (1) the Thayer theory, and (2) the Morgan theory.

[A] Thayer Theory of Presumptions

Burden of production shifts. Under the Thayer view, sometimes known as the "bursting bubble" theory, a presumption shifts only the burden of production or going forward with the evidence; it does not shift the burden of persuasion.¹⁵ Thus, proof of the basic fact (e.g., letter mailed) automatically establishes the presumed fact (e.g., letter received) and shifts the burden of producing evidence that will rebut the presumed fact to the other party. If the opposing party fails to rebut the presumed fact, that party has failed to satisfy its burden of production and suffers a directed verdict on that issue. If the case goes to the jury, the jury will be instructed that it must find the presumed fact (e.g., letter received). There is no need to mention the term "presumption" in the jury instructions.

Rebuttal evidence proffered. If, however, the opposing party offers sufficient evidence to rebut the presumed fact, the presumption disappears — "bursts."¹⁶ The presumption has performed its function of shifting the burden of production, and since that burden has been satisfied by the introduction of rebuttal evidence, no further function remains to be served. The burden of persuasion remains with the party to whom it was originally allocated.¹⁷ Again, there is no need to mention the presumption to the jury.¹⁸ Nevertheless, an inference often continues after rebuttal, and a jury may consider it in reaching a decision.¹⁹

Quantum of rebuttal proof. "Courts and commentators are in general agreement that proffered evidence is 'sufficient' to rebut a presumption so long as the evidence could support a reasonable jury finding of 'the nonexistence of the presumed fact.' "²⁰ Yet, courts have used a variety of different standards to describe the quantum of proof needed to rebut a Thayer presumption. Some have required "substantial evidence" of the nonexistence of the presumed fact. Others have demanded that the nonexistence of the presumed fact be as probable as the existence of the presumed fact before the presumption is rebutted.²¹ Still others have required only a "scintilla" of evidence.

Basic fact controverted. If the opposing party introduces evidence challenging the basic fact (e.g., evidence that the letter was not mailed), the jury must decide whether the basic fact has been established. In such a case, the jurors should be instructed that if they find the basic fact, they must find the presumed fact. Although the basic fact presents a jury issue...