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Chapter 3

PRESUMPTIONS AND BURDEN OF PROOF

Table of Sections

Sec.

3.00 Burden of Proof.

3.01 California Rebuttable Presumptions in Civil Cases.

3.02 California Conclusive Presumptions in Civil Cases.

3.03 Presumptions Under the Federal Rules in Civil Cases.

3.04 Presumptions in Criminal Cases.

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§ 3.00 Burden of Proof

CALIFORNIA EVIDENCE CODE

§ 110. Burden of producing evidence

"Burden of producing evidence" means the obligation of a party to introduce evidence sufficient to avoid a ruling against him on the issue.

§ 115. Burden of proof

"Burden of proof" means the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court. The burden of proof may require a party to raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt.

Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.

§ 500. Party who has the burden of proof

Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.

§ 501. Criminal actions; statutory assignment of burden of proof; controlling section

Insofar as any statute, except Section 522, assigns the burden of proof in a criminal action, such statute is subject to Penal Code Section 1096.

§ 502. Instructions on burden of proof

The court on all proper occasions shall instruct the jury as to which party bears the burden of proof on each issue and as to whether that burden requires that a party raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt.

§ 520. Claim that person guilty of crime or wrongdoing

The party claiming that a person is guilty of crime or wrongdoing has the burden of proof on that issue.

§ 521. Claim that person did not exercise care

The party claiming that a person did not exercise a requisite degree of care has the burden of proof on that issue.

§ 522. Claim that person is or was insane

The party claiming that any person, including himself, is or was insane has the burden of proof on that issue.

§ 523. Historic locations of water; claims involving state land patents or grants

In any action where the state is a party, regardless of who is the moving party, where (a) the boundary of land patented or otherwise granted by the state is in dispute, or (b) the validity of any state patent or grant dated prior to 1950 is in dispute, the state shall have the burden of proof on all issues relating to the historic locations of rivers, streams, and other water bodies and the authority of the state in issuing the patent or grant.

This section is not intended to nor shall it be construed to supersede existing statutes governing disputes where the state is a party and regarding title to real property.

§ 524. Burden of proof in cases involving State Board of Equalization; unreasonable search or access to records prohibited; taxpayer defined

(a) Notwithstanding any other provision of law, in a civil proceeding to which the State Board of Equalization is a party, that board shall have the burden of proof by clear and convincing evidence in sustaining its assertion of a penalty for intent to evade or fraud against a taxpayer, with respect to any factual issue relevant to ascertaining the liability of a taxpayer.

(b) Nothing in this section shall be construed to override any requirement for a taxpayer to substantiate any item on a return or claim filed with the State Board of Equalization.

(c) Nothing in this section shall subject a taxpayer to unreasonable search or access to records in violation of the United States Constitution, the California Constitution, or any other law.

(d) For purposes of this section, "taxpayer" includes a person on whom fees administered by the State Board of Equalization are imposed.

§ 550. Party who has the burden of producing evidence

(a) The burden of producing evidence as to a particular fact is on the party against whom a finding on that fact would be required in the absence of further evidence.

(b) The burden of producing evidence as to a particular fact is initially on the party with the burden of proof as to that fact.

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Comparative Note. The Federal Rules of Evidence do not contain any provisions defining and allocating the burden of proof in civil and criminal proceedings. The California Evidence Code, on the other hand, has a number of provisions defining and allocating the burdens of producing evidence and of persuasion.

Section 110 defines the burden of producing evidence as the "obligation of a party to introduce evidence sufficient to avoid a ruling against him on the issue." Section 550 in turn allocates the production burden as to a particular fact "on the party against whom a finding on that fact would be required in the absence of further evidence."

California Evidence Code § 115 defines the burden of persuasion as "the obligation of a party to establish by evidence the requisite degree of belief concerning a fact in the mind of the trier of fact." The section then defines the three standards of persuasion applicable in California proceedings: proof by a preponderance of the evidence, proof by clear and convincing evidence, and proof beyond a reasonable doubt. Unless otherwise provided by law, § 115 establishes proof by a preponderance of the evidence as the default burden of persuasion.

Section 500 allocates the burden of persuasion. Unless otherwise provided by law, the section allocates to a party the burden of persuasion "on each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting." The Code does not attempt, however, to specify the facts that may be essential to a party's claim for relief or defense. This task is left to the substantive law governing the action, not the law of evidence.

With respect to criminal cases, § 501 provides that "[i]nsofar as any statute, except Section 522, assigns the burden of proof in a criminal action, such statute is subject to Penal Code Section 1096." Section 1096 defines proof beyond a reasonable doubt. Evidence Code § 522 places the persuasion burden on the party claiming that any person, including him or herself, is or was insane. Both of these sections are subject to In re Winship's1 command that "Due Process protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."2

The Code places the burden of persuasion on the party claiming that a person is guilty of a crime or wrongdoing (§ 520), or did not exercise a requisite degree of care (§ 521). Section 523 places upon the state the burden of persuasion on all issues relating to the historic location of rivers, streams, and other water bodies and the authority of the state in issuing a patent or grant, in any action in which the state is a party "where (a) the boundary of land patented or otherwise granted by the state is in dispute or (b) the validity of any state patent or grant dated prior to 1950 is in dispute."

Section 502 places upon judges the duty of instructing the jurors on which party bears the burden of persuasion.

The major flaw in the California approach is the Code's insistence on using the term "burden of proof" to refer to the persuasion burden. In fact, the burden of proof consists of two distinct burdens—the burden of producing evidence and the burden of persuasion.3 Practitioners and students who are unaware of the Code's unique use of the term might be misled into believing that "burden of proof" refers to the both burdens. To avoid confusion, the term burden of persuasion is used in this chapter to refer this burden.

§ 3.01 California Rebuttable Presumptions in Civil Cases

CALIFORNIA EVIDENCE CODE

§ 600. Presumption and inference defined

(a) A presumption is an assumption of fact that the law requires to be made from another fact or group of facts found or otherwise established in the action. A presumption is not evidence.

(b) An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.

§ 601. Classification of presumptions

A presumption is either conclusive or rebuttable. Every rebuttable presumption is either (a) a presumption affecting the burden of producing evidence or (b) a presumption affecting the burden of proof.

§ 602. Statute making one fact prima facie evidence of another fact

A statute providing that a fact or group of facts is prima facie evidence of another fact establishes a rebuttable presumption.

§ 603. Presumption affecting the burden of producing evidence defined

A presumption affecting the burden of producing evidence is a presumption established to implement no public policy other than to facilitate the determination of the particular action in which the presumption is applied.

§ 604. Effect of presumption affecting burden of producing evidence

The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption. Nothing in this section shall be construed to prevent the drawing of any inference that may be appropriate.

§ 605. Presumption affecting the burden of proof defined

A presumption affecting the burden of proof is a presumption established to implement some public policy other than to facilitate the determination of the particular action in which the presumption is applied, such as the policy in favor of establishment of a parent and child relationship, the validity of marriage, the stability of titles to property, or the security of those who entrust themselves or their property to the administration of others.

§ 606. Effect of presumption affecting burden of proof

The effect of a presumption affecting the burden of proof is to impose upon the party against whom it operates the burden of proof as to the nonexistence of the presumed fact.

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Comparative Note.

Presumptions and Inferences. To understand the California and federal treatment of presumptions, a number of considerations must be kept in mind. First, presumptions must be distinguished from inferences. Second, presumptions may be one of two kinds—rebuttable or conclusive. Finally, rebuttable presumptions may be classified as being either of the Thayer or Morgan type.

Inferences. Simply put, inferences are the kinds of conclusions we draw in everyday problem solving. They are defined by Evidence Code § 600(b) as deductions "of fact that may logically and reasonably be drawn from another fact or groups of facts found or otherwise established in the action." The Federal Rules have no equivalent provision.

It is up to the fact finders to determine which inferences, if any, they should draw from the evidence presented at the trial. In a breach of contract action, for example, the plaintiff has the burden of establishing that the defendant failed to perform as promised. The defendant's claim might be that no contract ever came into existence because he never received the plaintiff's acceptance of his offer. If the only evidence the plaintiff offers on this issue is her testimony that she copied the defendant's name and address from the offer and, after affixing the correct postage, dropped her acceptance in the mailbox outside the office, the jurors will have to determine from this evidence whether the defendant received the offer. If they fail to believe the plaintiff, they will have to return a verdict against her since under the law of contracts she has the burden of proof on this issue. But even if they believe the plaintiff, the jurors could still return a verdict against her if they fail to conclude from the testimony that the defendant received the offer. So whether a credible plaintiff wins or not will depend on the willingness of the jury to draw the needed inference from the evidence.

Irrespective of the jury's ultimate decision in the case, it is important to note that the plaintiff will get to the jury on the question of whether the defendant received her acceptance of his offer. Even though the plaintiff did not offer direct evidence showing that the defendant received her acceptance, one inference a reasonable jury could draw from her testimony is that the defendant did receive her acceptance. Under the rules pertaining to motions for directed verdicts, that testimony would be sufficient for the judge to deny the defendant's motion for directed verdict based on the absence of direct evidence that he received the plaintiff's acceptance. In ruling on the defense motion for a directed verdict, the judge was obliged to draw the most favorable inferences from the plaintiff's testimony, and one of those inferences is that the U.S. Postal Service delivered the plaintiff's acceptance to the defendant.

Thayer Presumptions. In California the judge's task in ruling on the defense motion for a directed verdict would have been substantially eased if the plaintiff had called to the judge's attention a presumption created by the Evidence Code § 641: "A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail."

Analysis shows that this presumption, like all presumptions, consists of two elements: the basic facts and the presumed facts. The basic facts are correctly addressing and properly mailing a letter. The presumed fact is that such a letter is received in the ordinary course of mail. In our example, the plaintiff offered evidence of the basic facts. Since the presumed fact supplies the very evidence the defendant claimed was missing from the plaintiff's case-in-chief, the judge would have to deny the defendant's motion for a directed verdict.

Presumptions, however, can have a life that extends beyond motions for directed verdicts. They can alter a jury's fact finding function. Their effect depends on the kind of presumption involved and can best be seen by comparing life without presumptions with life with presumptions. If in a world without presumptions the defendant offers no evidence that he failed to receive the plaintiff's acceptance, the plaintiff would win only if the jury believed by a preponderance of the evidence that the defendant received the acceptance. That would depend on the jury's willingness to draw the necessary inference from the plaintiff's evidence. But in a world with presumptions, that mode of fact finding can change. In such a world, the judge would now instruct the jury to find the presumed fact (that the defendant received the acceptance in the ordinary course of mail) if the jury first finds the basic facts (that the acceptance was correctly addressed and properly mailed).1 Only if the defendant produces some evidence that he did not receive the acceptance would the world revert to one without presumptions. In that world, the judge would say nothing about the presumption and the jury would be free to draw whatever inferences it wished from all of the evidence.

It is crucial to note that the presumption we have been considering did not alter the burden of persuasion. To prevail, the plaintiff must still persuade the jurors by a preponderance of the evidence that the defendant received the acceptance. But the presumption assisted the plaintiff in two respects. It helped her get by the defendant's motion for a directed verdict by relieving her of the need to produce direct evidence of the presumed fact. Moreover, where the defendant produces no evidence that he failed to receive the acceptance, the plaintiff gets the benefit of having the jurors instructed to find the presumed fact if they find the basic facts. But since the presumed fact (that the acceptance was received in the ordinary course of mail) is one of the elements the plaintiff must prove by a preponderance of the evidence, the judge would have to instruct the jurors to find the presumed fact only if they first find the basic facts by that standard.

Some presumptions, however, do more than just affect the burden of producing evidence. They can shift the burden of persuasion on the existence of the presumed fact.

Morgan Presumptions. Assume a personal injury action in which the plaintiff seeks to recover for injuries she suffered when the defendant allegedly hit her while driving a car at an excessive speed. To recover, the plaintiff must prove, among other matters, that the defendant did not exercise the degree of care required under the circumstances. In California, the plaintiff would have both the production and persuasion burdens on this issue (§§ 521 and 550). Assume that to avoid an adverse directed verdict on this issue the plaintiff offers evidence in her case-in-chief that the defendant was driving in excess of the speed limit posted by a city ordinance. Since an inference a reasonable jury could draw from that evidence is that the defendant did not exercise the degree of care required under the circumstances, that evidence would be sufficient to get the plaintiff to the jury on that issue under the directed verdict standard. In a world without presumptions, the judge would simply tell the jury to return a verdict for the defendant unless the plaintiff convinced them by a preponderance of the evidence that the defendant failed to exercise the degree of care required under the circumstances.

Enter now the concept of negligence per se. Evidence Code § 669 provides that the failure to exercise due care is "presumed" if the person violates an ordinance which, among other matters, is designed to prevent the kind of injuries suffered by the plaintiff. Unlike the earlier presumption, this one alters the burden of persuasion. It shifts to the defendant the burden of convincing the jury by a preponderance of the evidence that he exercised due care, i.e., that his violation of the ordinance was reasonable and justified under the circumstances.

The presumption does not alter the plaintiff's burden in proving the basic facts.2 Since the presumed fact is one of the elements of the plaintiff's cause of action, the plaintiff must still establish the basic facts at least by a preponderance of the evidence. At the close of the evidence, the jurors would be told to find the presumed fact (that the defendant was negligent) if they first find the basic facts by this standard. In addition, they would be told to find for the plaintiff on this issue unless the defendant persuades them of the nonexistence of the presumed fact by a preponderance of the evidence.3

The effects of the Thayer and Morgan presumptions can be summarized as follows in an action in which the plaintiff must prove element B by a preponderance of the evidence and in which B is also a presumed fact:

Thayer Presumption: (1) If the plaintiff establishes the basic facts by a sufficiency standard, the defendant's motion for a directed verdict based on the absence of evidence of B must be denied. (2) If the defendant fails to introduce any evidence disproving B, then the judge will tell the jurors to find B if they first find the basic facts by the standard of persuasion that applies to the action. (3) But if the defendant disproves B by a sufficiency standard, the judge will say nothing to the jurors about the presumption.

Morgan Presumption: (1) If the plaintiff establishes the basic facts by a sufficiency standard, the defendant's motion for a directed verdict based on the absence of evidence of B must be denied. (2) If the defendant fails to introduce any evidence disproving B, then the judge will tell the jurors to find B if they first find the basic facts by the standard of persuasion that applies to the action. (3) But if the defendant disproves B by a sufficiency standard, the judge will tell the jurors to find B if they first find the basic facts by the appropriate standard, unless the defendant persuades them of B's nonexistence by the applicable persuasion standard.

Both presumptions are advantageous to the party in whose favor they operate. A Morgan presumption is more beneficial, since it shifts to the opposing party the burden of disproving the presumed fact. Since their effects are different, it is important to tell whether a given presumption is of the Thayer or Morgan type. Thayer presumptions are embodied in Evidence Code §§ 603 and 604; Morgan presumptions, in §§ 606 and 607.

Distinguishing Between Thayer and Morgan Rebuttable Presumptions. Thayer and Morgan presumptions are rebuttable. The opposing party is entitled to introduce evidence disproving the presumed facts.4

Over one-hundred years ago, Professor James Thayer described the kind of presumption found in §§ 603 and 604. His view was that a presumption merely shifted to the opposing party the burden of producing evidence rebutting the presumed fact.5 If the opposing party produced sufficient evidence to persuade the judge of the nonexistence of the presumed fact, then the presumption would "burst" and the jury would be told nothing about the presumption. Half a century later, Professor Edmund Morgan challenged Thayer's view of presumptions. Professor Morgan believed that presumptions should also shift to the opposing party the burden of persuading the jurors of the nonexistence of the presumed fact.6 Producing sufficient evidence of the nonexistence of the presumed fact was not enough; the jury was to be instructed to find the presumed fact unless persuaded otherwise by the opposing party under the appropriate persuasion standard.

Unlike Professor Thayer, who saw presumptions mainly as a device for allocating the burden of producing evidence on the existence or nonexistence of the presumed fact, Professor Morgan recognized that presumptions often reflect the considerations of fairness, policy, and probability that in the first place allocate the various elements of any case between the plaintiff's prima facie case and the defendant's affirmative defenses. In his view, if these considerations warrant imposing the risk of nonpersuasion on the party with the burden of producing evidence on a given element, then those same considerations should place the risk of nonpersuasion on the party with the burden of producing evidence rebutting the presumed fact.7 Dean Charles McCormick in particular noted that the kinds of presumptions Professor Morgan had in mind often advance desirable social goals, irrespective of whether the presumed fact has an underlying basis in probability and logical inference.8 An example is the California presumption that a person not heard from in five years is dead (§ 667). Though the presumption of death from five years' absence may conflict with the inference that life continues for its normal expectancy, the policies favoring distributing estates, settling titles, and permitting life to proceed normally justify the presumption.

Faced with two opposing views of presumptions, the framers of the Evidence Code opted for both. Sections 603–604 describe Thayer presumptions while §§ 606–607 describe Morgan ones. Presumptions, however, whether created by statute or case law, do not usually indicate whether they come within Thayer's or Morgan's view. In the absence of an explicit classification, the judge must decide whether a given presumption is designed to promote some social policy (and hence is governed by §§ 606–607) or merely to facilitate the allocation of the production burden with respect to the existence or nonexistence of the presumed fact (and hence is governed by §§ 603–604).

According to the Law Revision Commission, § 603

presumptions are designed to dispense with unnecessary proof of facts that are likely to be true if not disputed. Typically, such presumptions are based on an underlying logical inference. In some cases, the presumed fact is so likely to be true and so little likely to be disputed that the law requires it to be assumed in the absence of contrary evidence. In other cases, evidence of the nonexistence of the presumed fact, if there is any, is so much more readily available to the party against whom the presumption operates that he is not permitted to argue that the presumed fact does not exist unless he is willing to produce such evidence. In still other cases, there may be no direct evidence of the existence or nonexistence of the presumed fact; but, because the case must be decided, the law requires a determination that the presumed fact exists in light of common experience indicating that it usually exists in such cases. * * * Typical of such presumptions are the presumption that a mailed letter was received * * * and presumptions relating to the authenticity of documents * * *.9

Section 605 presumptions, on the other hand, are established to effectuate some public policy other than, or in addition to, facilitating the trial of actions.10

What makes a presumption one affecting the burden of [persuasion] is the fact that there is always some further reason of policy for the establishment of the presumption. It is the existence of this further basis in policy that distinguishes a presumption affecting the burden of [persuasion] from a presumption affecting the burden of producing evidence. * * * Frequently, too, a presumption affecting the burden of [persuasion] will have an underlying basis in probability and logical inference. For example, the presumption of the validity of a ceremonial marriage may be based in part on the probability that most marriages are valid. However, an underlying logical inference is not essential. In fact, the lack of underlying inference is a strong indication that the presumption affects the burden of [persuasion]. Only the needs of public policy can justify the direction of a particular presumption that is not warranted by the application of probability and common experience to the known facts.11

To help parties and judges distinguish between § 603 (Thayer) and § 605 (Morgan) presumptions, the Code provides a list of common Thayer presumptions in §§ 630–647 and of § 605 (Morgan) presumptions in §§ 660–670.

§ 3.02 California Conclusive Presumptions in Civil Cases

CALIFORNIA EVIDENCE CODE

§ 620. Conclusive presumptions

The presumptions established by this article, and all other presumptions declared by law to be conclusive, are conclusive presumptions.

§ 622. Facts recited in written instrument

The facts recited in a written instrument are conclusively presumed to be true as between the parties thereto, or their successors in interest; but this rule does not apply to the recital of a consideration.

§ 623. Estoppel by own statement or conduct

Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it.

§ 624. Estoppel of tenant to deny title of landlord

A tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation.

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Comparative Note. The Code recognizes the existence of conclusive presumptions (§§ 601 and 620). These differ from rebuttable presumptions in one crucial respect: the judge must tell the jurors that if they find the basic facts by the requisite standard, they must find the presumed fact irrespective of the strength of the opposing evidence (§ 601 Comment). Among the conclusive presumptions listed in the Code are the following: the facts recited in a written instrument are conclusively presumed to be true as between the parties thereto, or their successors in interest, but not facts in the recital of consideration (§ 622); whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe that a particular thing is true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it (§ 623); and a tenant is not permitted to deny title of his landlord at the time of the commencement of the relation (§ 624).

There are no conclusive presumptions under the Federal Rules of Evidence.

§ 3.03 Presumptions Under the Federal Rules in Civil Cases

FEDERAL RULES OF EVIDENCE

Rule 301. Presumptions in Civil Cases Generally

In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally.

Rule 302. Applying State Law to Presumptions in Civil Cases

In a civil case, state law governs the effect of a presumption regarding a claim or defense for which state law supplies the rule of decision.

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Comparative Note. As submitted by the United States Supreme Court, the Federal Rules adopted Morgan's view of presumptions in civil cases. The original rule placed on "the opposing party the burden of establishing the nonexistence of the presumed fact, once the party invoking the presumption established the basic facts giving rise to it."1 The Advisory Committee favored Morgan over Thayer presumptions on the ground that Thayer presumptions accorded "presumptions too 'slight and evanescent' an effect."2 But Congress changed the recommended rule and, instead, adopted a variant of Thayer's view of presumptions. Federal Rule of Evidence 301 states that in "a civil case, unless a federal statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rules does not shift the burden of persuasion, which remains on the party who had it originally."

But the instructions given to the jury about the effect of the presumption differ from those given under the Code with respect to Thayer presumptions. In California, if the opponent disproves the presumed fact by a sufficiency standard, the presumption disappears, and the judge will tell the jury nothing about the presumption. But under the Federal Rules, the judge may "instruct the jury that it may infer the existence of the presumed fact from proof of the basic facts."3 In effect, the judge is permitted to treat a rebutted presumption as an inference. Where the opponent fails to produce evidence rebutting the presumption, California judges will instruct the jurors to find the presumed fact if they first find the basic facts by the appropriate persuasion standard. Federal judges, however, give a more limited instruction. They will tell the jurors that they "may presume the existence of the presumed fact" if they find the basic facts.4 The use of the permissive "may" might suggest to some that an inference is intended and not a Thayer presumption, despite the use of the term "presume".

Rule 301 presumptions apply in all civil actions and proceedings unless a different presumption is prescribed by an Act of Congress or the Rules. Rule 301 presumptions do not apply to cases governed by Erie.5 Rule 302 provides that in "a civil case, state law governs the effect of a presumption regarding a claim or defense in which state law supplies the rule of decision."

§ 3.04 Presumptions in Criminal Cases

CALIFORNIA EVIDENCE CODE

§ 522. Claim that person is or was insane

The party claiming that any person, including himself, is or was insane has the burden of proof on that issue.

§ 607. Effect of certain presumptions in a criminal action

When a presumption affecting the burden of proof operates in a criminal action to establish presumptively any fact that is essential to the defendant's guilt, the presumption operates only if the facts that give rise to the presumption have been found or otherwise established beyond a reasonable doubt and, in such case, the defendant need only raise a reasonable doubt as to the existence of the presumed fact.

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Comparative Note. When the United States Supreme Court held in In re Winship1 that due process requires the prosecution to prove the accused's guilt beyond a reasonable doubt, the Court laid the basis for a constitutional attack on any presumption that threatens to lighten the prosecution's burden of proof. Thus far, the Court has stricken two kinds of presumptions as unconstitutional—conclusive presumptions and rebuttable presumptions of the Morgan variety.

Conclusive presumptions are unconstitutional because they relieve the prosecution from having to prove the presumed fact beyond a reasonable doubt.2 They impermissibly withdraw the issue of the existence of the presumed fact from the jury and prevent the accused from raising a reasonable doubt about the existence of the presumed fact.

Rebuttable presumptions of the Morgan variety have also been declared unconstitutional by the Court.3 They are unconstitutional because they shift to the accused the burden of disproving an element of the offense which under Winship the prosecution should prove beyond a reasonable doubt.

The California Supreme Court has applied Winship broadly. Even telling the jurors that the accused's only obligation is to raise a reasonable doubt about the existence of the presumed fact will not save the presumption.4 Jurors might construe such an instruction as compelling them to find the presumed fact as a matter of law when the accused fails to offer evidence rebutting the presumed fact and, as a logical matter, the basic facts do not compel the finding of the presumed fact.5 In effect the court construed Evidence Code § 607 as creating merely permissive inferences. Section 607 provides that "[w]hen a presumption affecting the burden of [persuasion] operates in a criminal action to establish presumptively any fact that is essential to the defendant's guilt, the presumption operates only if the facts that give rise to the presumption have been found or otherwise established beyond a reasonable doubt and, in such case, the defendant need only raise a reasonable doubt as to the existence of the presumed fact."

Evidence Code § 522 places upon the "party claiming that any person, including himself, is or was insane * * * the burden of proof on that issue." California Penal Code § 25(b) in turn places upon the accused the burden of proving his or her insanity by a preponderance of the evidence. Placing the burden of persuasion on the accused does not violate due process so long as the jury first finds that all of the elements of the offense have been proved beyond a reasonable doubt.

The Federal Rules of Evidence have no provisions regarding criminal presumptions.