3: Presumptions

Question 1

Rebuttable presumptions

Answer 1

A rebuttable presumption shifts the burden of production, but not the burden of persuasion, to the opposing party.

A rebuttable presumption may be overcome by evidence to the contrary:

(1) If no contrary evidence is introduced, however, the judge must instruct the jury to accept the presumption;
(2) If contrary evidence is introduced, then the presumption no longer has a preclusive effect (“bursting bubble”). At this point, the jury may, but is not required to, draw the conclusion from the basic facts.

Question 2

Definition

Answer 2

A presumption is a conclusion that the trier of fact is required to draw upon a party’s proof of an underlying fact or set of facts (i.e., basic facts).