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Effective Date: 3/1/2014

(a) Effect. In 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.

(b) Rebuttal. If the trier of fact finds from credible evidence that the fact presumed does not exist, 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.

(c) 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 March 1, 2014.

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.

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. The presumption 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 31-11-02, NDCC, are not presumptions at all, but rather legislative statements of substantive law.

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 March 1, 2014, to divide former subdivision (a) into two subdivisions, (a) and (b).

SOURCES: Joint Procedure Committee Minutes of April 26-27, 2012, pages 11-12; 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. §§ 4-14-04, 4-22-15, 6-01-31, 6-03-32, 6-09.4-21, 9-03-04, 9-05-10, 9-07-19, 9-10-04, 10-04-19, 11-13-08, 11-15-16, 11-18-09, 11-20-01, 11-20-05, 14-03-24, 14-05-16, 14-07-17, 19-01-10, 19-01-11, 20.1-13-13, 23-24-04, 24-07-15, 28-01-07, 28-01-12, 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, 35-05-03, 35-21-05, 35-22-16, 36-21-12, 37-01-12, 39-03-15, 39-20-07, 40-01-10, 40-02-12, 40-04-06, 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, 43-19.1-10, 43-19.1-20, 43-28-08, 43-28-16, 43-29-04, 43-36-17, 47-09-06, 47-10-13, 47-11-10, 47-14-03, 47-16-05, 47-16-06, 47-19-06, 47-19-12, 49-06-14, 49-19-16, 57-02-01, 57-38-46, 57-40.2-05, 57-40.3-08, 60-01-24, 61-02-34, 61-04-25, 61-05-19, 61-16-06.

Effective Date Obsolete Date
03/01/2014 View
06/04/1976 03/01/2014 View