Alaska Comm. R. Evid. 301

As amended through July 24, 2024

Rule 301 - Presumptions in General in Civil Actions and Proceedings

(a)Effect. This Rule governs rebuttable presumptions generally in civil cases. See Rule 302 for presumptions controlled by federal law and Rule 303 for those operating in a criminal case.

The word "presumption" has many different meanings in the law. See Laughlin, In Support of the Thayer Theory of Presumptions, 52 Mich. L. Rev. 195, 196-209 (1953). As used herein, a "presumption" is a recognition in law of the relationship between two facts or groups of facts. If one fact or group of facts is shown to exist, the law presumes the existence of the other but permits rebuttal.

The burden placed upon the party seeking the advantage of a presumption is to prove the initial fact, often called the "basic" or "proved" fact. If this fact is not disputed, then the presumption will operate. If the fact is disputed, the presumption will only operate if the trier of fact finds that the basic fact exists.

Assuming the existence of the basic fact, Rule 301 provides that the presumed fact shall also be found to exist unless the party against whom the presumption operates meets the presumption with evidence sufficient to permit a reasonable trier of fact to find that the presumed fact does not exist. A failure to meet the presumption with sufficient evidence results in a peremptory instruction or a directed verdict. If the burden of producing evidence is satisfied, the presumption disappears and no mention of it may be made to the jury, which is likely to be confused by the term. The court must, however, instruct the jury that it may infer the existence of the presumed fact from the basic fact.

There has been substantial disagreement in the past among common law courts and legal commentators regarding the proper weight to be given a presumption. Some authorities hold that a presumption places the burden of proof on the party opposing the fact presumed to establish its non-existence once the party invoking the presumption establishes the basic facts giving rise to it. This position is associated with McCormick and Morgan, although the latter's view is arrived at with some reluctance. See Morgan, Further Observations on Presumptions, 16 So. Cal. L. Rev. 245, 254 (1943). Other authorities, following Thayer's "bursting bubble" theory, approved by Wigmore, hold that the presumption vanishes upon the introduction of evidence that would support a finding of the non-existence of the presumed facts. There are numerous intermediate positions that have attracted attention. See Morgan, supra, at 247-49. It is possible to treat different presumptions differently. See Calif. Evid. Code § 600 et seq. But Morgan, supra, at 254, persuasively argued the case for a single standard.

Unfortunately, however, there are myriads of presumptions created by courts and legislatures. They can not be authoritatively classified by courts except as each one is involved in a litigated action. Wherever there is room for difference of opinion, no presumption can finally be assigned its proper place except by the appropriate court of last resort. To evolve a classification by judicial decision would require decades, if not centuries. To make a legislative classification of existing presumptions would involve immense labor and would still leave room for debate as to all subsequently created presumptions. Unless a trial judge were presented with a catalogue of classified presumptions, it would be fatuous to expect him to determine the reasons and objectives of a presumption suddenly thrust at him in the hurry of a trial, with a demand to classify it and accord it the appropriate effect.

The approach of this Rule approximates more closely the views of Thayer and Wigmore than those of McCormick and Morgan.

The shifting-the-burden of persuasion approach, approved by the Advisory Committee on the Federal Rules and the United States Supreme Court before being rejected by the Congress, is rejected for several reasons.

First, Alaska has a myriad of statutes creating presumptions within the meaning of this Rule. Some use the word presumption or a related term. See, e.g., AS 13.06.035(3) (Evidence as to death or status); AS 45.05.376 (Evidence of dishonor and notice of dishonor). More use the term "prima facie evidence", AS 02.35.070 (Receipts for certified certificates); AS 08.24.300 (Court action by agency); AS 10.05.726 (Failure to pay tax as evidence of insolvency); AS 10.05.795 (Certificates and certified copies to be received in evidence); AS 13.06.035(1) & (2) (Evidence as to death or status); AS 18.50.320(2) (Copies of data from vital records); AS 21.84.100 (Certificate of compliance); AS 21.84.030 (Annual license); AS 27.10.170 (Effect of recording and of failure to record affidavit of labor or improvements); AS 27.10.190(b) (Recording the notice to contribute and affidavits); AS 28.10.261 (Evidence); AS 32.05.180(b) (Continuation of partnership beyond fixed term); AS 45.05.022 (Prima facie evidence by third party documents); AS 45.50.290 (Certificate of registration as evidence). While it is difficult to ascertain the legislative intent in creating these presumptions, and while the intent may vary from presumption to presumption, it is highly unlikely that the legislature intended many of these presumptions to have the potential impact associated with a shift in the burden of persuasion.

Second, shifting the burden of persuasion on some issues may tend to confuse the jury, especially in cases involving affirmative defenses where the normal instructions on burdens of proof already may be confusing.

Third, in situations in which the presumption operates against a party already bearing the burden of persuasion on an issue, the presumption may have no effect once it is rebutted. No good reason appears why a presumption that is powerful enough to shift the burden of persuasion should disappear entirely when shifting is impossible.

Fourth, the Federal Rule does not shift the burden of persuasion. When federal and state issues are tried together, rarely will it be necessary under this Rule or Rule 302 to face the problem of conflicting presumptions.

(b)Prima Facie Evidence. This subdivision makes it clear that when the legislature uses the term "prima facie" in reference to proving a fact, generally it intends to create a presumption. See Degnan, Syllabus on California Evidence Code 18-25 (11th Ann. Summer Program, U. Cal.-Berkeley) in D. Louisell, J. Kaplan, & J. Waltz, Cases and Materials on Evidence 980-83 (3d ed. 1976). "The term `prima facie case' is often used in two senses and is therefore an ambiguous and often misleading term. It may mean evidence that is simply sufficient to get to the jury, or it may mean evidence that is sufficient to shift the burden of producing evidence." McCormick (2d ed.) § 342, at 803 n.26. A presumption may be utilized in both senses in the same case. The statutes set forth, supra, do more than permit a party to get to a jury on the basis of prima facie evidence; they evince a legislative determination that the presumption should be accepted until rebutted. This rule so provides.

(c)Inconsistent Presumptions. When conflicting presumptions are present in a single case, the court attempts to determine which is founded in the weightier considerations of policy and logic. McCormick (2d ed.) § 345, at 823-24, discusses the "special situation of the questionable validity of a second marriage [which] has been the principal area in which the problem of conflicting presumptions has been discussed by the courts." Most courts have taken the approach of this subdivision in such a situation. "This doctrine that the weightier presumption prevails should probably be available in any situation which may reasonably be theorized as one of conflicting presumptions, and where one of the presumptions is grounded in a predominant social policy." McCormick (2d ed.) § 345, at 824. The final sentence of the Rule provides that if there is no such preponderance, both presumptions shall be disregarded. This follows Uniform Rule 15 (1953). It would be confusing if the judge were to instruct the jury that it might find fact A, but that it is not bound to, and that it might find not-A but that is not bound to. No instruction is preferable. Instead, the jury will learn of two basic facts suggesting opposite inferences, and it must determine the one that is most probable in light of all the evidence.

Nothing in this rule affects the application of conclusive presumptions, see, e.g., AS 10.10.030(6) (d) (Articles of incorporation), which the United States Supreme Court recently referred to as rules of law. Usery v. Turner Elkhorn Min. Co., 428 U.S. 1, 49 L.Ed.2d 752 (1976). Nor does this Rule address the validity of conclusive presumptions. Compare Weinberger v. Salfi, 422 U.S. 749, 45 L.Ed.2d 522 (1975), with Vlandis v. Kline, 412 U.S. 441, 37 L.Ed.2d 63 (1973), United States Dep't of Agriculture v. Murray, 413 U.S. 508, 37 L.Ed.2d 767 (1974), and Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 39 L.Ed. 2d 52 (1974). Nothing in this Rule inhibits the creation or utilization of presumptions to protect constitutional rights. See, e.g., Keyes v. School Dist. No. 1, 413 U.S. 189, 37 L.Ed.2d 548 (1973), discussed in K. Redden & S. Saltzburg, Federal Rules of Evidence Manual 82-83 (2d ed. 1977).

The first sentence of the rule makes clear that the legislature and the courts retain power to create presumptions having an effect different from that provided for in this Rule.

Alaska Comm. R. Evid. 301