Section 2.7 Shifting” Approach

• Library: Sources of Proof (2014 Ed.)

B. (§2.7) “Shifting” Approach

An alternative approach is to shift the burden of persuasion to the party contesting the existence of the presumed fact. In other words, the presence of the basic fact means that the presumed fact is taken as true until the opponent of the presumption introduces contrary evidence that the trier of fact actually believes. See generally 2 MCCORMICK ON EVIDENCE § 344(B), pp. 702–07 (Kenneth S. Broun ed., 7^th ed. 2013). Obviously, in civil cases, mere “substantial evidence” would not suffice to rebut a presumption under this view. Rather, the trier of fact would have to find the nonexistence of the presumed fact by a preponderance of the evidence. Some scholars have called this the “shifting” approach to presumptions. 2 MCCORMICK ON EVIDENCE § 344, pp. 453–56 (John W. Strong ed., 5^th ed. 1999).

For some time, there was a question whether a presumption that shifted the burden of persuasion...