(a) Effect. In all civil actions and proceedings not otherwise provided for by statute or by these rules, a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence.

(b) 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.

ADVISORY COMMITTEE NOTE

The text of this rule is adapted from Rule 301, Wyoming Rules of Evidence (1977), which is Rule 301, Uniform Rules of Evidence (1974) except that the word "civil" is added in subdivision (a). Rule 301, Federal Rules of Evidence, is a substantially different rule than that promulgated by the United States Supreme Court. Rule 301, as originally proposed by the United States Supreme Court, placed the burden upon the opposing party of establishing the non-existence of a presumed fact once the party invoking the presumption had established sufficient facts to give rise to the presumption, but Rule 301 as promulgated by Congress adopted a substantially different rule limiting the effect of presumption, not otherwise controlled by statute, to one of going forward with proof rather than casting the burden of proof upon the opposing party.

Rule 14, Utah Rules of Evidence (1971) provided that except for presumptions which are conclusive or irrefutable, once the basic fact supporting the presumption is established "the presumption continues to exist and the burden of establishing the non-existence of the presumed fact is upon the party against whom the presumption operates . . . ." To the same effect, see Koesling v. Basamakis, 539 P.2d 1043 (Utah 1975). If evidence to rebut a presumption has not been admitted, the presumption will determine outcome on the issue; if such evidence has been admitted, the presumption will dictate the instruction to be given the jury on how they are to resolve doubt. There will continue to be fact combinations which satisfy the burden of going forward with the evidence but which are not "presumptions" within the meaning of this rule and which therefore do not shift the burden of persuasion. They might best be called "permissible inferences."

The Utah Rules of Evidence (1971) did not prohibit the application of presumptions in criminal cases. Presumptions in criminal cases are not treated in this rule. See Utah Code Annotated, Section 76-1-503 (1953) or any subsequent revision of that section. Recent decisions of the United States Supreme Court in Mullaney v. Wilbur, 421 U.S. 684 (1975) and Patterson v. New York, 432 U.S. 197 (1977) have given a constitutional dimension to presumptions in criminal cases.

Subdivision (b) is comparable in substance to Rule 15, Utah Rules of Evidence (1971). Utah law is believed to generally follow the position taken by the Uniform Rules of Evidence (1974) and the provisions of Article III as originally promulgated by the United States Supreme Court. See Presumptions in Utah: A Search for Certainty, 5 Utah L. Rev. 196 (1956).