RULE 301. PRESUMPTIONS IN
A CIVIL ACTIONS AND
PROCEEDINGS CASE GENERALLY (a) Effect. In all civil
actions and proceedings not otherwise provided for by statute or by
these rules a civil case, unless a statute or these rules provide otherwise, if
facts giving rise
to a presumption are established by credible evidence, the presumption substitutes for
evidence of the existence of the fact presumed.
until If the trier of fact finds from credible evidence that the fact
does not exist, in which event the presumption is rebutted and ceases to
operate. A party
against whom a presumption is directed has the burden of proving that the nonexistence of
the presumed fact is more probable than its existence.
Inconsistent presumptions. If presumptions are inconsistent, the presumption applies
that is founded upon weightier considerations of policy. If considerations of policy are of
equal weight neither presumption applies.
Rule 301 was amended, effective________________.
Rule 301 deals with presumptions, prescribing their effect in all civil proceedings not otherwise provided for by law. It provides that a presumption imposes upon the party against whom it is directed the burden of proving its non existence. Rule 301 differs substantially from Fed.R.Ev. 301.
The term "presumption" has been
ascribed various meanings, but in the last analysis it is
found that very little may be said about presumptions that is agreeable to all. Given the effect
of presumptions under this rule, a presumption may be stated to be a rule of law that requires
the trier of fact to draw a particular inference from a particular fact, or from particular
evidence, unless and until the truth of the inference is disproved.
presumption of law found in Black's Law Dictionary at 1349 (rev. 4th ed.
Thus, a presumption is not evidence, it is
a legal method of dealing with evidence. Nor may
a presumption be said to be a mere inference, for an inference always draws its force from
the logical, probative value of facts. A presumption is given its effect because of legal
considerations, which may be grounded in probability, but are as likely to be based upon trial
expedience, access to evidence, or legal or social policies. For example, the presumption that
a letter, duly posted, is received may be said to be based upon probability and also upon the
inherent difficulty a party would have in proving receipt by other means.
that a child born into a marriage is legitimate is based largely on the socially desirable policy
of avoiding "the visitation upon the child of the sins of the parents." McCormick on
Evidence, § 343 at 811 (2d ed. 1972).
The function of a
presumption is often stated in terms of its effect upon the burden of proof
at trial. According to one theory, espoused by Morgan (Morgan, Some Problems of Proof,
74-81 (1956)), a presumption operates to "shift" the original burden of proof to the opponent
of the presumption.
Under another theory,
espoused by Thayer and often called the "bursting bubble" theory,
a presumption imposes upon its opponent a burden of going forward with evidence to rebut
the presumption; once this is done, the presumption disappears.
The procedural consequences
that result from the application of the two theories are these:
Under either theory, a presumption avoids a directed verdict against its proponent at the close
of his case and, if no evidence is later introduced to rebut the presumption, entitles the
proponent to a directed verdict at the close of all the evidence. The differences arise when
some evidence is introduced that is contrary to the presumption.
If the burden of proof is said
to be fixed upon the opponent of the presumption, then he
must introduce enough evidence to carry his burden. If the trier of fact reaches the conclusion
that the opposing "evidence" is equal, then a verdict must be rendered in favor of the
proponent of the presumption.
If a presumption is said to
impose a burden of going forward with evidence to rebut the
presumption, the amount of evidence that must be introduced by the opponent to avoid a
directed verdict against him is that amount which convinces the judge that reasonable jurors
could find contrary to the presumption. Once this is accomplished, the presumption is of no
force and the issue is decided on the probative force of the evidence itself. If the evidence
is in even balance, then the party who had the burden of proof, originally, must lose, even
though his case may have been initially aided by a presumption.
It should be noted that, in all
cases, presumptions are disputable and may be overcome by
contrary evidence. "Conclusive presumptions," as contained in N.D.C.C. § 31-11-02, are
not presumptions at all, but rather legislative statements of substantive
Rule 301, as an expression of
the theory expressed by Morgan, provides that a presumption
imposes upon the party against whom it is directed the burden of proving its non existence.
This comports with the effect given presumptions, by Rule 301, Uniform Rules of Evidence
(1974); it gives presumptions a stronger effect than they are given under the comparable
Federal Rule of Evidence, which imposes only a burden of producing evidence to rebut a
presumption. It was felt that this is desirable, in light of the important social considerations
which give rise to presumptions.
By giving this effect to
presumptions, Rule 301 comports with past interpretations of North
Dakota law. See Dick v. New York Life Ins. Co., 359 U.S. 437, 79 S. Ct. 921, 3 L. Ed. 2d
935 (1959); Svihovec v. Woodmen Accident Co., 69 N.D. 259, 285 N.W. 447 (1939). But
see Fancher v. North Dakota Workmen's Compensation Bureau, 123 N.W.2d 105 (N.D.
1963); Johnson v. Johnson, 104 N.W.2d 8 (N.D. 1960). See also North Dakota Jury
Instruction 1030 (October 1, 1970).
Rule 301 was amended, effective ______________, in response to the December 1, 2011, revision of the Federal Rules of Evidence. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules. There is no intent to change any result in any ruling on evidence admissibility.
Sources: Joint Procedure Committee
: of___________________; June 4, 1976,
page 18; June 3, 1976, page 1; October 1, 1975, page 3. Rule 301, Uniform Rules of
Evidence (1974); Rule 301, SBAND proposal.
Superseded: N.D.C.C. § 31-11-01.
Considered: N.D.C.C. §§ 4-09-05, 4-10-03, 4-10-12, 4-11-19, 4-14-03, 4-14-04, 4-22-15, 6-01-31, 6-03-32, 6-09.4-21, 7-01-12, 7-08-02, 7-08-03, 9-03-04, 9-05-10, 9-07-19, 9-10-04, 10-04-19, 10-07-03, 10-23-13, 10-24-31, 10-28-09, 11-13-08, 11-15-16, 11-18-09, 11-20-01, 11-20-05, 12-44-18, 13-01-06, 14-03-24, 14-07-17, 14-05-16, 14-17-04(2), 15-29-10, 15-51-10, 19-01-10, 19-01-11, 19-02-17, 20.1-13-13, 23-02-40, 23-24-04, 24-07-15, 26-08-07, 26-12-09, 26-12-15, 26-15-04, 26-15-26, 26-29-12, 28-01-07, 28-01-12, 28-20-31, 28-23-12, 31-09-08, 31-11-02, 31-11-03, 31-11-04, 31-11-04.1, 32-03-09.1, 32-04-09, 32-04-18, 32-18-03, 32-19-26, 32-25-03, 33-04-17, 35-05-03, 35-21-05, 35-22-16, 36-09-08, 36-21-12, 36-09-20, 37-01-12, 39-03-15, 39-20-07, 40-01-10, 40-02-12, 40-04-06, 40-42-01, 40-58-08, 41-03-53, 41-03-66, 41-08-05, 43-01-21, 43-01-22, 43-06-07, 43-07-13, 43-11-10, 43-17-11, 43-17-23, 43-19.1-10, 43-19.1-20, 43-28-08, 43-28-16, 43-29-04, 43-36-17, 45-07-06, 47-09-06, 47-10-13, 47-11-10, 47-14-03, 47-16-05, 47-16-06, 47-19-06, 47-19-12, 47-19-14.2, 48-02-15, 49-06-14, 49-19-16, 57-02-01, 57-24-29, 57-38-46, 57-40.2-05, 57-40.3-08, 57-52-16, 57-53-06, 59-01-16, 60-01-24, 61-02-34, 61-04-25, 61-05-19, 61-16-06, 62-03-04.