A presumption is a device which relieves a party of the burden of making a prima facie showing of a fact. Under Delaware Rule of Evidence 301, 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 that its existence.”1 In other words, if a fact is presumed, the party relying on the presumption is relieved of its obligation of producing evidence of the fact in issue, and the burden of proof shifts to the party against whom the presumption operates to produce evidence sufficient to convince the trier of fact that the non-existence of the presumed fact is more probable than its existence.2 Thus, Rule 301 departs from the common-law rule which did not shift the burden of persuasion to the party against whom the presumption operated, but merely shifted to that party the burden of going forward with evidence to meet the presumed fact.3
Presumptions arise from the law of probabilities. As one court has stated, “[t]he future is measured and weighed by the past, and presumptions are created from the experience of the past. What has happened in the past, under the same conditions, will probably happen in the future, and ordinary and probable results will be presumed to take place until the contrary is shown.”4
There are two types of presumptions: (1) conclusive or mandatory presumptions, and (2) rebuttable presumptions. Conclusive or mandatory presumptions require the trier of fact to find that the presumed fact is established from the proven fact. A mandatory presumption is proper only if there is a “rational connection” between the proven fact and the presumed fact.4.1 Rebuttable presumptions impose on the party against whom they are directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence.4.2 As explained in Section 9.2, use of conclusive presumptions is limited in criminal cases.
Delaware rejects the “bursting bubble” theory adopted in some other jurisdictions, i.e., that the evidentiary weight of a presumption vanishes once the opposing party introduces any evidence to rebut the presumption.5 Instead, the party against whom the presumption operates has the burden of showing that the evidence that the non-existence of the presumed fact is more probable than its existence.6 Such evidence, to be effective to rebut the presumption, must be clear and convincing.6.1
Presumptions are equally available to plaintiffs and defendants.7 If, however, both sides offer a legal presumption in support of opposite views of the existence or non-existence of the same fact, the presumption applies that finds greater support in public policy. If the policy considerations are of equal weight, neither presumption applies.8
A presumption may not be used to establish a fact when direct evidence of such fact is available.9
1. D.R.E. 301(a); Staats v. Lawrence, 576 A.2d 663, 666 (Del. Super. 1990), aff’d mem., 582 A.2d 936 (Del. 1990).
2. Oberly v. Howard Hughes Medical Inst., 472 A.2d 366, 388 (Del. Ch. 1984). See also In the Matter of Black Stallion Tax Ditch, C.A. No. 83M-JL-1, slip op. at 5-6, Martin, J. (Del. Super. Mar. 11, 1986), reh’g denied, C.A. No. 83M-JL-1, Martin, J. (Del. Super. Apr. 19, 1986).
3. See Bennett v. Andree, 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).
4. Edmanson v. Wilmington & Philadelphia Traction Co., 120 A. 923, 924 (Del. Super. 1923).
4.1. Alaska Elec. Pension Fund v. Brown, 988 A.2d 412, 417-18 (Del. 2010); Helman v. State, 784 A.2d 1058, 1074 (Del. 2001).
4.2. Alaska Elec. Pension Fund v. Brown, 988 A.2d 412, 417-18 (Del. 2010).
5. Elec. Pension Fund v. Brown, 988 A.2d 412, 18 n.3 (Del. 2010); City of Wilmington v. Minella, 879 A.2d 656, 664 (Del. Super. 2005); Oberly v. Howard Hughes Medical Inst., 472 A.2d 366, 388-90 (Del. Ch. 1984); Staats v. Lawrence, 576 A.2d 663, 666 (Del. Super. 1990), aff’d mem, 582 A.2d 936 (Del., 1990). See also D.R.E. 301, comment.
6. See Putney v. Putney, 487 A.2d 1125, 1127 (Del. 1984).
6.1. Hudak v. Procek, 806 A.2d 140, 147 (Del. 2002).
7. See Bailey v. Blodgett, 119 A.2d 756, 759 (Del. Super. 1955).
8. D.R.E. 301(b).
9. Slivka v. Mroczka, 132 A. 862, 864 (Del. 1926).
© 2010 David L. Finger