As a general rule, the burden of proof, in the sense of the burden that rests upon a party to establish the truth of a given proposition or issue by the quantum of evidence demanded by the law in the case in which the issue arises, never shifts during the course of the trial. It remains upon the party on whom the law placed it at the beginning of the trial, and the party upon whom the burden rests must produce evidence sufficient to establish such necessary propositions.57 This general rule, however, is subject to exceptions.

The principal exception is where a party relies on a legal presumption.58 The use of a presumption “imposes upon the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence.”59 Thus, where a party at trial who has the burden of proof relies on a presumption to establish a fact, the use of that presumption does not merely shift to the party against whom the presumption operates the burden of going forward with evidence to meet the presumption. Rather, it goes further and shifts to that party the burden of producing evidence sufficient to prove that the non-existence of the presumed fact is more probable than its existence.60 This appears to alter the common-law rule that the use of a presumption merely shifts the burden of going forward with the evidence.61

Beyond the use of presumptions, in certain types of cases, courts have held that the establishment of certain facts causes the burden of proof, and not merely the burden of persuasion, to shift to the opposing party. For example, in fraudulent conveyance cases, once the plaintiff establishes that a defendant transferred property to a relative, the burden of proof shifts to and remains with the defendant to prove that the consideration for the transfer was fair.62

Further, when a plaintiff proves that a fiduciary engaged in a self-dealing transaction or is otherwise not entitled to the protection of the business judgment rule, the burden of proof shifts to and remains with the fiduciary to prove the fairness of the transaction.63

57. Quaker Hill Place v. Saville, 523 A.2d 947, 954 n.6 (Del. Super. 1987), aff’d, 531 A.2d 201 (Del. 1987); Ambrose v. Wheatley, 321 F. Supp. 1220, 1222 n.6 (D. Del. 1971).

58. See ch. 10 for a discussion of presumptions.

59. D.R.E. 301(a).

60. Oberly v. Howard Hughes Medical Inst., 472 A.2d 366, 388 (Del. Ch. 1984).

61. See Bennett v. Anclree, 264 A.2d 353, 355 n.2 (Del. Super. 1970), aff’d, 270 A.2d 173 (Del. 1970); Delaware Coach Co. v. Savage, 81 F. Supp. 293, 296 (D. Del. 1948). Federal Rule of Evidence 301 applies the common-law rule, which was adopted by the United States Senate notwithstanding the recommendation of the advisory committee that presumptions should shift the burden of persuasion. See Fed. R. Evid. 301, Notes of Committee on the Judiciary, House Report No. 93-650.

62. Tri-State Vehicle Leasing, Inc. v. Dutton, 461 A.2d 1007, 1008 (Del. 1983); Mitchell v. Wilmington Trust Co., 449 A.2d 1055, 1060 (Del. Ch. 1982), aff’d mem., 461 A.2d 696 (Del. 1983); Cooch v. Grier, 59 A.2d 282, 287 (Del. Ch. 1948); Richards v. Jones, 142 A. 832, 835 (Del. Ch. 1928).

63. Sinclair Oil Corp. v. Levien, 280 A.2d 717, 719-20 (Del. 1971); Orman v. Cullman, 794 A.2d 5, 20 n.26 (Del. Ch. 2002); Schreiber v. Bryan, 396 A.2d 512, 519 (Del. Ch. 1978).

© 2010 David L. Finger