Section 4.55 Thayer or “Bursting Bubble” Approach

• Library: Evidence 2017

1. (§4.55) 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 John W. Strong, McCormick on Evidence § 344(A), pp. 445–52 (5^th ed. 1999). 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 the presumption is rebutted, the production of contradicting evidence removes the effect of the presumption and the case proceeds as if it had never been present. This view, originated by Professor James B. Thayer in A Preliminary Treatise on Evidence at the Common Law (1898), was traditionally the law in Missouri. Id. 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. See also 1 Spencer A. Gard, Missouri Evidence § 3:06, p. 75 (1985).

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