TRIAL PROCEDURE

a. “Bursting bubble” approach: Under the so-called “bursting bubble” approach, the presumption affects only the production burden. Once the party bearing the burden (in our ongoing hypothetical, the defendant) satisfies that burden by producing evidence of non-P, and the case goes to the jury, the persuasion burden is allocated exactly as if there were no presumption—in this case, on the plaintiff. This approach is called the “bursting bubble” approach because once evidence tending to show the non-existence of the presumed fact is introduced, the presumption bursts like a bubble.

i. Federal Rules of Evidence: This “bursting bubble” approach is used by the Federal Rules of Evidence in civil suits. Under FRE 301, “A presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of non-persuasion, which remains throughout the trial upon the party on whom it was originally cast.” (But FRE 302 provides that if state law provides the rule of decision as to the claim or defense to which the presumed fact relates, the law of that state will determine the effect of the presumption. Thus if the presumed fact relates to a claim or defense under which Erie principles (supra, p. 258) require that state law be followed, state law will also determine whether the presumption can shift the burden of non-persuasion.)