Presentation of evidence - Presumptions

Learning Outcomes

This article explains presumptions in the presentation of evidence, including:

• how presumptions arise from proof of basic facts and trigger procedural consequences;
• how presumptions affect the burdens of production and persuasion in civil and criminal cases;
• how FRE 301’s “bursting bubble” approach functions and how FRE 302 incorporates state-law presumptions in diversity cases;
• how constitutional due process limits the use of presumptions and mandatory inferences against criminal defendants;
• how to distinguish presumptions from permissible inferences, conclusive presumptions, and substantive rules, especially in MBE-style questions.

This article explains the function and operation of presumptions within the Federal Rules of Evidence and related constitutional doctrine, emphasizing exam-focused application. It details the typical fact patterns that give rise to presumptions, the evidentiary showing required to rebut them, and the resulting impact on directed verdicts, jury instructions, and the allocation of burdens at trial. It also examines common tested presumptions—such as mailing–receipt, car ownership and agency, legitimacy, sanity, and death from prolonged absence—and shows how spoliation of evidence can support adverse inferences or presumptions. Overall, the article presents a structured framework for analyzing any presumption issue that appears on the MBE or a bar-style evidence essay.

MBE Syllabus

For the MBE, you are required to understand how presumptions operate in both civil and criminal cases under the Federal Rules of Evidence, with a focus on the following syllabus points:

• Defining presumptions and distinguishing them from inferences.
• Analyzing the effect of presumptions on the burden of production and the burden of persuasion (FRE 301).
• Understanding the "bursting bubble" (Thayer) theory of presumptions in civil cases.
• Applying the rule for state law presumptions in diversity cases (FRE 302).
• Recognizing the constitutional limitations on presumptions against the accused in criminal cases.

For the MBE, you are required to understand how presumptions operate in both civil and criminal cases under the Federal Rules of Evidence. This includes:

• Defining presumptions and distinguishing them from inferences.
• Analyzing the effect of presumptions on the burden of production and the burden of persuasion (FRE 301).
• Understanding the "bursting bubble" (Thayer) theory of presumptions in civil cases.
• Applying the rule for state law presumptions in diversity cases (FRE 302).
• Recognizing the constitutional limitations on presumptions against the accused in criminal cases.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. In a federal civil trial not governed by state law, what is the primary effect of a rebuttable presumption under FRE 301?
   1. It shifts the burden of persuasion to the opposing party.
   2. It shifts the burden of production to the opposing party.
   3. It creates a conclusive finding of the presumed fact.
   4. It allows the jury to draw a permissible inference.
2. In a federal diversity case concerning a breach of contract claim governed by State X law, State X law provides that proof of mailing a letter creates a presumption that shifts the burden of persuasion regarding receipt to the opposing party. Which law governs the effect of this presumption?
   1. Federal Rule of Evidence 301.
   2. State X law regarding presumptions.
   3. Federal common law.
   4. The judge's discretion based on fairness.
3. In a criminal trial, a mandatory presumption regarding an element of the crime charged against the defendant generally violates:
   1. The Confrontation Clause.
   2. The Double Jeopardy Clause.
   3. The Due Process Clause.
   4. The Cruel and Unusual Punishments Clause.
4. In a federal civil case, the plaintiff proves that the defendant owned a car involved in a collision. The jurisdiction recognizes a rebuttable presumption that the driver was the owner’s agent. The defendant produces some testimony that the driver was a friend who borrowed the car without permission. Under the FRE 301 “bursting bubble” approach, what is the effect?
   1. The presumption remains and the defendant has the burden of persuasion to prove lack of agency.
   2. The presumption disappears and the plaintiff retains the burden of persuasion on agency.
   3. The presumption becomes conclusive because some contrary evidence was offered.
   4. The jury must be instructed to find that the driver was not an agent.

Introduction

Presumptions are procedural devices used in litigation that allow a fact-finder (usually the jury) to conclude that a certain fact (the presumed fact) exists based upon proof of another fact (the basic fact). They operate as evidentiary shortcuts, streamlining the presentation of evidence by dictating assumptions under specific circumstances. Understanding how presumptions function, particularly their effect on the burdens of proof, is essential for Evidence analysis on the MBE.

The Federal Rules of Evidence provide specific guidance on the operation of presumptions in civil cases (FRE 301 and 302), while constitutional principles, primarily Due Process, govern their use in criminal cases, especially when operating against the accused.

Key Term: Presumption
A rule of law requiring that once a basic fact is proved, a presumed fact is also deemed established until rebutted by sufficient contrary evidence.

A presumption is different from simply “thinking something is likely.” It is a legal directive telling the judge (and, indirectly, the jury) what factual conclusion must be drawn from certain proof, unless the other side produces enough evidence to counter it.

Key Term: Burden of Proof
A collective term that covers both the burden of production and the burden of persuasion on a given issue.

Key Term: Burden of Production
The obligation on a party to introduce sufficient evidence on an issue to have that issue decided by the fact-finder, rather than decided against the party as a matter of law.

Key Term: Burden of Persuasion
The obligation on a party to persuade the trier of fact (usually by a preponderance of the evidence in civil cases, or beyond a reasonable doubt in criminal cases) that a fact exists. This burden generally does not shift during trial.

Key Term: Permissible Inference
A conclusion that the fact-finder is allowed, but never required, to draw from another proven fact, without any shift in burdens.

Presumptions are one of the main tools that interact with these burdens. To use them correctly on the MBE, always ask:

• Has the basic fact been established?
• Does some rule or doctrine attach a presumption to that basic fact?
• Has the opponent produced enough contrary evidence to “burst” the presumption?
• Which burden (production or persuasion) has been affected?

Nature and Function of Presumptions

A presumption differs fundamentally from a permissible inference. An inference allows, but does not require, the jury to find a fact based on proof of another fact. A presumption, however, mandates that the presumed fact be found unless and until the opposing party introduces sufficient evidence to rebut the presumption.

Key Term: Rebuttable Presumption
A presumption that requires a fact-finder to find the presumed fact upon proof of the basic fact, unless the opposing party produces sufficient evidence of the nonexistence of the presumed fact.

Presumptions primarily affect the burden of production (also known as the burden of going forward). Once the party relying on the presumption establishes the basic fact, the burden shifts to the opposing party to produce evidence contradicting the presumed fact.

If the opposing party does nothing, the presumption requires the fact-finder to accept the presumed fact as true. In practice:

• At the judge level: the presumption entitles the party to win on that issue as a matter of law (e.g., a directed verdict/JMOL), if the basic fact is proved and no rebuttal evidence is offered.
• At the jury level: if the case goes to the jury with an unrebutted presumption, the judge will instruct the jury that it must find the presumed fact if it finds the basic fact.

How much evidence is needed to rebut a presumption? The cases use formulations like “evidence sufficient to support a finding of the nonexistence of the presumed fact” or “substantial evidence.” For MBE purposes, it is enough that a reasonable jury could find the presumed fact does not exist. Once that threshold is crossed, the presumption disappears under FRE 301 (in most civil cases).

Key Term: Mandatory Presumption
A presumption that instructs the fact-finder that it must find the presumed fact upon proof of the basic fact, at least unless the opponent proves the contrary.

Key Term: Conclusive Presumption
An unrebuttable rule that upon proof of a basic fact, another fact must be taken as true; in substance, it is a rule of substantive law rather than an evidentiary presumption.

Key Term: Spoliation (Destruction of Evidence)
The destruction or significant alteration of evidence, or failure to preserve evidence when litigation is pending or reasonably foreseeable; it may support an adverse inference or presumption against the party responsible.

Some common rebuttable presumptions frequently discussed in Evidence materials include:

• Presumption of legitimacy of a child.
• Presumption of sanity.
• Presumption of death after a long unexplained absence (often seven years).
• Presumption that the owner of a car was the driver or that the driver was acting as the owner’s agent.
• Presumption against suicide in certain civil death cases.
• Presumption of receipt of a properly mailed letter.

These are illustrations of the mechanism: once the basic fact (marriage, sanity, ownership, mailing, etc.) is proved, the presumed fact (legitimacy, sanity, agency, receipt, etc.) is taken as true unless rebutted.

Presumptions vs. Inferences vs. Substantive Law

The MBE often tests the distinction between a “true” presumption, a mere inference, and a substantive legal rule.

• A true presumption:

  • Has a defined basic fact.
  • Requires a finding of a presumed fact unless rebutted.
  • Shifts at least the burden of production.

• A permissible inference:

  • Allows the fact-finder to infer a fact from another fact.
  • Does not shift any burden.
  • Is simply a matter of reasoning and argument (e.g., res ipsa loquitur in negligence, or an inference from spoliation of evidence).

• A substantive rule (sometimes phrased as a “conclusive presumption”):

  • Cannot be rebutted by contrary evidence.
  • Actually defines rights or elements (e.g., “A child under seven cannot be guilty of a crime.”).

On the exam, if a rule cannot be rebutted, analyze it as substantive law, not as a presumption subject to FRE 301.

Worked Example 1.1

Plaintiff sues Defendant for breach of contract, alleging she never received Defendant's acceptance letter, which was due by June 1. Defendant testifies she properly addressed, stamped, and mailed the acceptance letter on May 25. Assume federal law applies and recognizes a presumption of receipt upon proof of proper mailing. Plaintiff offers no evidence regarding non-receipt other than her own testimony. Defendant moves for a directed verdict on the issue of acceptance. How should the court rule?

Answer:
The court should deny the motion. Defendant's proof of proper mailing established the basic fact, creating a FRE 301 presumption of receipt (the presumed fact). This shifted the burden of production to Plaintiff to offer evidence of non-receipt. Plaintiff's testimony denying receipt is sufficient evidence to rebut the presumption. The presumption "bursts," and the issue of receipt becomes a question of fact for the jury, which must weigh Defendant's evidence of mailing against Plaintiff's evidence of non-receipt without the mandatory effect of the presumption.

Worked Example 1.2

Plaintiff (State A citizen) sues Defendant (State B citizen) in federal court based on diversity jurisdiction for negligence arising from a car accident in State A. State A law governs the claim. State A law provides that proof that a driver was using a cell phone at the time of an accident creates a presumption of negligence that shifts the burden of persuasion to the driver to prove they were not negligent. Defendant admits using her phone but argues it did not cause the accident. Which party bears the burden of persuasion on the issue of Defendant's negligence?

Answer:
The Defendant. Because state law governs the substantive negligence claim, FRE 302 requires the federal court to apply State A's law regarding the effect of the presumption. State A law shifts the burden of persuasion upon proof of the basic fact (cell phone use). Therefore, Defendant bears the burden of persuading the jury she was not negligent. FRE 301's "bursting bubble" effect does not apply here.

Worked Example 1.3

In a federal civil case, Plaintiff proves that Defendant owned a car involved in a collision. By local law, proof of ownership gives rise to a presumption that the driver was acting as Defendant’s agent within the scope of employment. Defendant calls a witness who testifies that the driver was a neighbor who frequently borrowed the car for personal errands and was not employed by Defendant. No other evidence on agency is presented. How should the issue of agency go to the jury under FRE 301?

Answer:
Defendant’s evidence is enough to allow a reasonable jury to find that the driver was not Defendant’s agent. Under FRE 301, this rebuttal evidence causes the presumption to “burst.” The jury should be instructed to decide the agency issue based solely on the actual evidence (ownership and the neighbor’s testimony), without any mandatory effect from the presumption. Plaintiff retains the burden of persuasion on agency.

Presumptions in Civil Cases Under the Federal Rules

FRE 301: The "Bursting Bubble" (Thayer) Theory

FRE 301 governs the effect of presumptions in most federal civil actions and proceedings (unless federal law or another Rule provides otherwise). It adopts the "bursting bubble" theory, also known as the Thayer theory.

• Shifts Burden of Production: When a party introduces evidence establishing the basic fact required for a presumption, the burden of production regarding the presumed fact shifts to the opposing party.
• Burden of Persuasion Remains Unchanged: Crucially, under FRE 301, the burden of persuasion does not shift. It remains on the party who originally had it according to the substantive law.
• Effect of Rebuttal Evidence: If the opposing party produces sufficient evidence that a reasonable jury could find the non-existence of the presumed fact, the presumption "bursts" and disappears from the case. The jury is then free to weigh the evidence on both sides without reference to the presumption. If no rebuttal evidence is produced, the judge instructs the jury to find the presumed fact if it believes the basic fact has been proven.

A few additional consequences of the FRE 301 approach:

• The evidence that supports the presumption does not disappear when the presumption bursts. The jury may still consider the established basic fact (e.g., proof of mailing) as circumstantial evidence from which it may draw a permissible inference (e.g., likely receipt).
• FRE 301 is default federal law. A federal statute, another Federal Rule (including FRE 302), or a specific federal rule of decision can change the effect of a presumption (for example, some federal discrimination statutes).
• The presumption’s main function is procedural: it determines whether a party is entitled to survive a motion for judgment as a matter of law when the opponent has offered no rebuttal evidence.

Key Term: Bursting Bubble Theory (Thayer Theory)
The view, adopted by FRE 301, that a rebuttable presumption disappears entirely once the opponent produces sufficient evidence to support a finding of the nonexistence of the presumed fact; only the supporting evidence remains.

Additional Civil Examples Under FRE 301

• Mailing and Receipt: Proof of proper addressing, stamping, and mailing of a letter gives rise to a presumption of receipt. Testimony of non-receipt is generally enough to rebut.
• Spoliation of Evidence: Intentional destruction of relevant evidence may support an adverse inference that the evidence would have been unfavorable. Often this is characterized as a strong permissible inference rather than a technical FRE 301 presumption, but some formulations describe it as a presumption that can be rebutted.

In civil cases, courts have substantial discretion to craft adverse-inference instructions in response to spoliation. On the exam, the key point is that destruction of evidence usually helps the opposing party by allowing either:

• A presumption or inference that the evidence was adverse to the destroyer, and/or
• Sanctions (e.g., issue preclusion, dismissal, or monetary penalties).

Worked Example 1.4

Plaintiff sues an insurance company in federal court on a federal statutory claim. Plaintiff proves that she mailed a proof-of-loss form to the insurer at the correct address with proper postage. The jurisdiction recognizes a mailing–receipt presumption under FRE 301. The insurer offers no evidence about whether it received the form. Plaintiff moves for judgment as a matter of law (directed verdict) on the issue of timely notice. How should the court rule?

Answer:
The court should grant the motion. Plaintiff’s proof of proper mailing establishes the basic fact, creating a presumption of receipt under FRE 301. Because the insurer offers no contrary evidence, the presumption remains in effect. If the jury finds proper mailing, it must find receipt. As a matter of law, Plaintiff has satisfied the notice requirement, and there is no fact issue for the jury to decide on that point.

FRE 302: Effect of State Law in Diversity Cases (Erie Doctrine)

In civil cases where state law governs the substantive claim or defense (typically diversity jurisdiction cases), FRE 302 dictates that state law also governs the effect of a presumption related to that claim or defense. This is an application of the Erie doctrine. If state law gives a presumption a different effect than FRE 301 (e.g., shifting the burden of persuasion), the state rule must be followed.

FRE 302 applies when:

• The case is in federal court.
• The issue involves a claim or defense governed by state substantive law (e.g., tort, contract, property).
• The state’s presumption is tied to that substantive law (e.g., presumptions about negligence, property ownership, legitimacy, or another element or defense under state law).

Examples of state-law presumptions that may shift the burden of persuasion:

• A presumption that a person missing for seven years is dead.
• A presumption that a child born in wedlock is legitimate.
• A presumption that use of a cell phone while driving is negligent, shifting the burden to the driver to prove due care.
• A presumption that the owner of a vehicle is responsible for the negligence of a permissive driver.

Federal courts sitting in diversity must apply the state’s rule on the effect of these presumptions, even if the state’s approach conflicts with the Thayer “bursting bubble” model.

Key Term: Erie Doctrine (as applied to presumptions)
The principle that federal courts in diversity cases must apply state substantive law, including state rules that assign or shift burdens of persuasion through presumptions tied to substantive rights.

FRE 302 does not apply when:

• The claim arises under federal law (e.g., a federal civil rights statute), even if the case is in federal court in a state.
• The presumption concerns a purely federal procedural issue (e.g., a federal evidentiary presumption unrelated to state-created rights).

The MBE may ask you to identify whether FRE 301 or a state-law rule (through FRE 302) controls the effect of a presumption in a diversity case.

Presumptions in Criminal Cases

The use of presumptions against a criminal defendant is significantly restricted by the Due Process Clause, which requires the prosecution to prove every element of the crime beyond a reasonable doubt.

Key Term: Presumption of Innocence
The fundamental principle that a criminal defendant is presumed innocent and that the prosecution must prove each element of the offense beyond a reasonable doubt.

In criminal cases, “presumptions” are treated very differently from civil cases:

• A mandatory presumption that effectively relieves the prosecution of its burden to prove an element beyond a reasonable doubt violates due process.
• A permissive inference is allowed if the relationship between the proven fact and the inferred fact is rational.

Mandatory vs. Permissive in Criminal Cases

• Mandatory Presumptions Unconstitutional:
  A mandatory presumption (one that requires the jury to find the presumed fact upon proof of the basic fact, unless rebutted) regarding an element of the crime is unconstitutional. It shifts the burden of proof or persuasion on an element to the defendant, violating the requirement that the state must prove every element beyond a reasonable doubt.
  Cases such as Sandstrom v. Montana and Francis v. Franklin invalidated jury instructions telling jurors that a person is presumed to intend the natural and probable consequences of their acts.

• Permissive Inferences Allowed:
  A permissive inference (one that allows, but does not require, the jury to infer the presumed fact from the basic fact) is generally permissible if there is a rational connection between the basic fact and the inferred fact, and the inferred fact is more likely than not to flow from the basic fact.
  In Ulster County Court v. Allen, the Court upheld a permissive inference that possession of a weapon in a car by all occupants could permit (but not require) an inference that each occupant possessed the weapon.

Key Term: Permissive Inference (Criminal Context)
An evidentiary rule that allows, but does not require, the jury to infer an element of an offense from proof of another fact, so long as the connection is rational and the element is more likely than not to follow from the basic fact.

Affirmative Defenses and Burdens

Due process requires that the state carry the burden of proof on all elements of the offense (e.g., actus reus, mens rea, causation). However, the state may place the burden of persuasion on the defendant for certain affirmative defenses that do not negate an element, such as insanity or self-defense, depending on the jurisdiction.

Key Term: Affirmative Defense
A defense that, even if the prosecution proves all elements of the offense, introduces new facts that justify or excuse the conduct (e.g., insanity, self-defense), and may be assigned to the defendant to prove.

Examples:

• A state may require a defendant to prove insanity by clear and convincing evidence.
• A state may require a defendant to prove self-defense by a preponderance of the evidence, so long as the elements of the charged offense (including the required mental state) still must be proved by the prosecution beyond a reasonable doubt.

Worked Example 1.5

A defendant is on trial for murder. The judge instructs the jury: “The law presumes that a person intends the natural and probable consequences of his actions. Therefore, if you find that the defendant intentionally fired a gun at the victim, you must presume that he intended to kill the victim, unless the defendant proves otherwise.” Is this instruction constitutional?

Answer:
No. This is an unconstitutional mandatory presumption regarding an element of the crime (intent to kill). It tells the jury it must find intent from proof of the shooting unless the defendant disproves intent, effectively shifting the burden of proof on that element. Due process requires the prosecution to prove every element beyond a reasonable doubt; the jury may not be directed to presume intent in this way.

Worked Example 1.6

In a burglary prosecution, the court instructs the jury: “If you find that the defendant was in unexplained possession of recently stolen property, you may, but are not required to, infer that the defendant was the burglar.” The defendant challenges the instruction as violating due process. How should the court rule?

Answer:
The court should uphold the instruction. It creates a permissive inference, not a mandatory presumption. The jury is told it may infer the defendant was the burglar from recent unexplained possession of stolen property, but is not required to do so. There is a rational connection between the basic fact (recent, unexplained possession) and the inferred fact (participation in the burglary), and the participation is more likely than not to follow. Due process is satisfied.

Constitutional Summary for Criminal Presumptions

• The state may not:

  • Use mandatory presumptions or burden-shifting presumptions to prove an element of a crime.
  • Instruct that an element is presumed unless the defendant disproves it.

• The state may:

  • Allow permissive inferences, so long as there is a rational connection and the inference makes the element more likely than not.
  • Put the burden of persuasion on the defendant for affirmative defenses (insanity, self-defense, extreme emotional disturbance), as long as the prosecution still bears the burden on the elements.

Conclusive Presumptions

A conclusive (or irrebuttable) presumption is not a true presumption but rather a rule of substantive law disguised as a presumption. It dictates that upon proof of a basic fact, another fact must be found and cannot be rebutted.

For example, the common law rule that a child under seven cannot commit a crime operates as a conclusive presumption of lack of criminal capacity. No evidence can be offered to show that such a child did, in fact, understand the wrongfulness of the act.

Other classic examples (from substantive law) include:

• A child under a certain age being conclusively unable to consent to sexual activity in statutory rape statutes.
• Certain irrebuttable family law presumptions, such as rules that treat short-term marriages or certain relationships as invalid for particular statutory benefits.

Because these “presumptions” cannot be rebutted, the evidentiary rules on presumptions (FRE 301 and 302) do not govern their effect. Instead, constitutional challenges (e.g., due process or equal protection) focus on whether the substantive classification itself is valid. This level of constitutional analysis is beyond the usual scope of MBE Evidence questions, but recognizing that conclusive presumptions are not governed by FRE 301 is important.

Summary

Presumptions are procedural tools that dictate a factual conclusion upon proof of a basic fact, unless rebutted. Under FRE 301 (the "bursting bubble" theory), applicable in most federal civil cases, a presumption shifts only the burden of production, not the burden of persuasion. If sufficient rebuttal evidence is offered, the presumption disappears, and the jury evaluates all the evidence without any mandatory direction.

FRE 302 mandates applying state presumption law in diversity cases where state law governs the claim or defense and the presumption is tied to substantive rights. In those cases, state law may allow presumptions to shift the burden of persuasion, not just production.

In criminal cases, due process forbids mandatory presumptions or burden-shifting presumptions that relieve the prosecution of its duty to prove each element beyond a reasonable doubt. Permissive inferences are allowed if they are rational and the inferred fact is more likely than not to follow from the basic fact. Defendants may bear the burden of persuasion on affirmative defenses, but not on elements of the offense.

Conclusive presumptions are really substantive rules and fall outside the FRE 301–302 framework. On the MBE, your task is to recognize when a true presumption arises, determine which burdens are affected, and identify when constitutional limits render a presumption against a criminal defendant invalid.

Key Point Checklist

This article has covered the following key knowledge points:

• Definition of presumption vs. permissible inference, and why the distinction matters.
• The components of the burden of proof: burden of production vs. burden of persuasion.
• How rebuttable presumptions operate in civil cases under FRE 301 (Thayer “bursting bubble” theory).
• That FRE 301 presumptions shift only the burden of production, never the burden of persuasion.
• That once sufficient rebuttal evidence is introduced, the presumption disappears but the supporting evidence remains.
• Role of common civil presumptions (mailing–receipt, car ownership, legitimacy, sanity, death from absence).
• How spoliation (destruction of evidence) can support an adverse inference or presumption against the destroying party.
• FRE 302’s requirement that state law governs the effect of presumptions tied to state substantive rights in diversity cases.
• The difference between true presumptions, permissible inferences, and conclusive/substantive rules.
• Constitutional limits on presumptions in criminal cases: mandatory presumptions on elements are unconstitutional.
• Requirements for valid permissive inferences in criminal cases (rational connection and more-likely-than-not standard).
• Allocation of burdens in affirmative defenses (such as insanity and self-defense) vs. elements of the offense.
• Nature of conclusive presumptions as rules of substantive law rather than evidentiary devices.

Key Terms and Concepts

• Presumption
• Burden of Proof
• Burden of Production
• Burden of Persuasion
• Permissible Inference
• Rebuttable Presumption
• Mandatory Presumption
• Conclusive Presumption
• Spoliation (Destruction of Evidence)
• Bursting Bubble Theory (Thayer Theory)
• Erie Doctrine (as applied to presumptions)
• Presumption of Innocence
• Permissive Inference (Criminal Context)
• Affirmative Defense