In a civil case,
(a) unless a statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of proving that the nonexistence of the presumed fact is more probable than its existence.
(b) If presumptions are inconsistent, the court determines which presumption applies based upon the weightier considerations of policy. If considerations of policy are of equal weight neither presumption applies.
2011 Advisory Committee Note. The language of this rule has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make class and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.
Original 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 § 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).