Section 2.6 Thayer or “Bursting Bubble” Approach

• Library: Sources of Proof (2014 Ed.)

A. (§2.6) Thayer or “Bursting Bubble” Approach

The traditional rule is that a presumption shifts the burden of production, but not the burden of persuasion, to the opponent of the presumption. 2 MCCORMICK ON EVIDENCE § 344(A), p. 692 (Kenneth S. Broun ed., 7^th ed. 2013). That is, the presence of the basic fact means that the presumed fact is taken as established so that the proponent of the presumption can reach the trier of fact on the issue unless or until the opponent of the presumption produces evidence contradicting, or “rebutting,” the presumed fact. Once rebutted, the production of such contradicting evidence removes the effect of the presumption, and the case proceeds as if it had never been present. Id. at § 344, pp. 692–93. This view, originated by Professor J. Thayer in A Preliminary Treatise on Evidence at Common Law (1898), was traditionally the law in Missouri. See, e.g., Detrich v. Mercantile Trust Co., 292 S.W.2d 300, 304 (Mo. 1956), in which the Court quotes from Thayer’s treatise. It has also been said that a presumption imposes on the other party “the burden of going forward with evidence to rebut or meet the presumption but does not shift to that 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.” See MO. EVIDENCE GUIDE §301(b) (MoBar 2003).

The amount of proof...