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Rule 301.?Presumptions in Civil Cases Generally.


In acivil case,


(a)   unless a statute or these rules provide otherwise, the partyagainst whom a presumption is directed has the burden of proving that thenonexistence of the presumed fact is more probable than its existence.


(b)   Ifpresumptions are inconsistent, the court determines which presumption appliesbased upon the weightier considerations of policy. If considerations of policyare of equal weight neither presumption applies.



2011Advisory Committee Note. ?The language of this rule has been amended as part of the restyling of the EvidenceRules to make them more easily understood and to make style and terminologyconsistent throughout the rules. These changes are intendedto be stylistic only. There is no intent to change any result in any ruling onevidence admissibility.


Original Advisory CommitteeNote.? The text of this rule is adapted from Rule 301, Wyoming Rules ofEvidence (1977), which is Rule 301, Uniform Rules of Evidence (1974) exceptthat the word "civil" is added insubdivision (a). Rule 301, Federal Rules of Evidence, is a substantiallydifferent rule than that promulgated by the United States Supreme Court. Rule 301, as originally proposed by the United States SupremeCourt, placed the burden upon the opposing party of establishing thenon-existence of a presumed fact once the party invoking the presumption hadestablished sufficient facts to give rise to the presumption, but Rule 301 aspromulgated by Congress adopted a substantially different rule limiting theeffect of presumption, not otherwise controlled by statute, to one of goingforward with proof rather than casting the burden of proof upon the opposingparty.


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


The UtahRules of Evidence (1971) did not prohibit the application of presumptions incriminal cases. Presumptions in criminal cases are nottreated in this rule. See Utah Code ? 76-1-503 (1953) or any subsequentrevision of that section. Recent decisions of the United States Supreme Courtin Mullaney v. Wilbur, 421U.S. 684 (1975) and Patterson v. New York, 432 U.S. 197 (1977) havegiven a constitutional dimension to presumptions in criminal cases.


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