Presumptions

Question 1

What is the burden of production?

Answer 1

It is a question of who. Burden of going forward/producing evidence is on the P in a civil case and the prosecution in a criminal case.

Question 2

What is the burden of persuasion?

Answer 2

It is a question of how much. It is the degree to which the evidence must be proven.

There are three levels:
1. Preponderance of the evidence - This applies to most civil cases, preliminary fact determinations, and some criminal issues.

2. Clear and convincing evidence - This applies to criminally related civil cases and insanity in federal criminal cases.
3. Beyond a reasonable doubt - This applies to every element in a criminal case.

Question 3

When is there burden shifting?

Answer 3

There are two main ways to shift a burden of production:

1. Affirmative defenses in civil and criminal cases.
2. Presumptions.

Question 4

What are presumptions?

Answer 4

It is a procedural devise that shifts the burden of going forward to the opposing party. It is an inference that may be drawn when one set of facts (basic facts) establishes a very high probability of the existence of another set of facts (presumed facts), absent a contrary showing. Upon a showing to the contrary, the presumption disappears.

Presumptions are rare in criminal cases.

Question 5

What are conclusive presumptions?

Answer 5

They are irrebuttable. Those that are conclusively established once a set of basic facts is proven.

Question 6

What about presumptions in diversity actions?

Answer 6

Where the rule of decision regarding a claim or defense arises under state law, the Federal rules apply the substantive law of the state.