Rule 301: Overcoming Presumptions

• Publication year: 1998
• Pages: 55
• Citation: Vol. 27 No. 1 Pg. 55

27 Colo.Law. 55 Colorado Lawyer 1998.

1998, January, Pg. 55. Rule 301: Overcoming Presumptions

---

55

Vol. 27, No. 1, Pg. 55

The Colorado Lawyer
January 1998
Vol. 27, No. 1 [Page 55]

Specialty Law Columns
Civil Evidence
Rule 301: Overcoming Presumptions
by Lawrence M. Zavadil

Q: Once a rebuttable presumption has arisen, how much evidence is necessary to overcome the presumption

A: There is no set standard. Absent precedent or a statutory prescription, the amount of evidence necessary to overcome a rebuttable presumption is determined on an ad hoc basis in light of the strength of the policies which motivated a court or legislature to create the presumption

Assumed Facts

A dispute between A and B turns on whether B received a notice from A. A presents evidence that the notice was properly addressed to B and was mailed with adequate prepaid postage, thus giving rise to a common law rebuttable presumption that B received the notice.1 B generally denied receipt of the notice in its pleadings and at trial. Has B overcome the presumption of receipt of the notice

Discussion

A presumption "is a rule of convenience based on experience or public policy."2 A rebuttable presumption3 is a procedural device which requires that the existence of a fact (the presumed fact) be accepted as true when certain other facts (basic facts) are established, unless and until a certain specified condition is fulfilled.4 Under the facts assumed above, the presumed fact is receipt of the notice; the basic facts are the mailing of a properly addressed, postage prepaid notice; and the condition to be fulfilled is the presentation of evidence sufficient to overcome the presumption.

Rule 301 of the Colorado Rules of Evidence ("C.R.E.") provides:

In all civil actions and proceedings not otherwise provided for by statute or by these rules, a presumption imposes upon 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 non-persuasion, which remains throughout the trial upon the party on whom it was originally cast.

C.R.E. 301 was made "essentially identical" to Federal Rules of Evidence ("F.R.E.") 301 in order to achieve a "desirable degree of uniformity and simplicity."5

While C.R.E. 301 specifies that the party against whom a presumption is...