Rule 303 Presumptions imposing burden of producing evidence. (a) General rule. A presumption established to implement no public policy other than to facilitate the determination of the particular action in which the presumption is applied imposes on the party against whom it is directed the burden of producing evidence.

(b) Effect. The effect of a presumption imposing the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case no instruction on presumption shall be given and the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption. Nothing in this rule shall be construed to prevent the drawing of any inferences.

(c) Presumptions. The following presumptions, and all other presumptions established by law that fall within the criteria of subsection (a) of this rule, are presumptions imposing the burden of producing evidence:

(1) Money delivered by one to another. Money delivered by one to another is presumed to have been due to the latter;

(2) Thing delivered by one to another. A thing delivered by one to another is presumed to have belonged to the latter;

(3) Obligation delivered up to the debtor. An obligation delivered up to the debtor is presumed to have been paid;

(4) Obligation possessed by creditor. An obligation possessed by a creditor is presumed not to have been paid;

(5) Payment of earlier rent or installments. The payment of earlier rent or installments is presumed from a receipt for later rent or installments;

(6) Things possessed. The things that a person possesses are presumed to be owned by the person;

(7) Exercise of act of ownership. A person who exercises acts of ownership over property is presumed to be the owner of it;

(8) Judgment determines, sets forth rights of parties. A judgment, when not conclusive, is presumed to correctly determine or set forth the rights of the parties, but there is no presumption that the facts essential to the judgment have been correctly determined;

(9) Writing. A writing is presumed to have been truly dated;

(10) Letter properly addressed and mailed. A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail;

(11) Trustee's conveyance to a particular person. A trustee or other person, whose duty it was to convey real property to a particular person, is presumed to have actually conveyed the real property to the person when such presumption is necessary to perfect title of such person or the person's successor in interest;

(12) Ancient document affecting real or personal property interest. A deed or will or other writing purporting to create, terminate, or affect an interest in real or personal property is presumed authentic if:

(A) It is at least twenty years old;

(B) It is in such condition as to create no reasonable suspicion concerning its authenticity;

(C) It was kept, or if found was found, in a place where such writing, if authentic, would be likely to be kept or found; and

(D) Persons having an interest in the matter have been generally acting as if it were authentic;

(13) Book or other material purporting to be published by public authority. A book or other material purporting to be printed, published, or posted to an internet website by public authority is presumed to have been so printed, published, or posted;

(14) Book or internet website purporting to contain reports of adjudged cases. A book or government website purporting to contain reports of cases adjudged in the tribunals of the state or nation where the book is published or from which the government website is maintained is presumed to contain correct reports of such cases;

(15) Continuation of a fact, condition, or state. A fact, condition, or state of things is presumed to continue; and

(16) Paid bills. A bill for goods or services that has been paid is presumed to be authentic and to embody fair and reasonable charges for the itemized goods or services. L 1980, c 164, pt of §1; gen ch 1985; am L 2001, c 142, §2; am L 2011, c 47, §1

RULE 303 COMMENTARY

The criteria established by this rule are modeled upon, and accord generally with, those of Cal. Evid. Code §§630-646, with modifications appropriate to the rules of law of this jurisdiction.

Subsection (a): This provision establishes the general criteria for determination of those presumptions that impose on the adverse party only the burden of producing evidence. Although it is arguable that any assumption which gains the status of a legal presumption finds some support in policy, even if no more than the policy of procedural convenience, such considerations do not meet the standards of "public policy" within the intent of this subsection and Rule 304(a). A "public policy" should be (1) compelling, and (2) extrinsic to the action in which the presumption is offered. The catalogue of presumptions in subsection (c) of this rule, while not exhaustive, is determinative for these presumptions and is illustrative of the class of presumptions appropriately governed by this rule.

Subsection (b): The purpose of the definition of the term "burden of producing evidence" in Rule 301(3) supra, is to clarify the nature of the burden in terms of the obligation imposed on the party against whom it is directed. The purpose of the present provision, in contrast, is to define the effect of a Rule 303 presumption. The degree of proof necessary to support a finding of nonexistence should be, as McCormick suggests, more than a "scintilla," McCormick §338. "To amount to more than a mere scintilla the evidence must be of a character sufficiently substantial, in view of all the circumstances of the case, to warrant the jury ... in finding from it the fact to establish which the evidence was introduced." Holstein v. Benedict, 22 H. 441, 445 (1915). One federal court suggested that it should be "evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions," Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969).

The last sentence of this subsection is applicable in circumstances in which the burden has been met and the presumption overcome. Although the trier of fact is barred from treating the presumption as established, the facts in evidence which initially created the presumption, balanced against the evidence offered to rebut it, may give rise to a permissible inference, and nothing in this rule should be construed to bar such an inference.

Subsection (c): Although the list of presumptions in this subsection closely parallels the traditional common law presumptions incorporated in Cal. Evid. Code §§631-646, several changes have been effected consistent with Hawaii law. The California provision treating the doctrine of res ipsa loquitur as a presumption, Cal. Evid. Code §646, is omitted, consistent with the Hawaii Supreme Court determination that the doctrine is not a presumption but a permissible inference, see commentary to Rule 301(2) supra. Presumption (15), "Continuation of a fact, condition, or state," is based upon Hawaii Supreme Court decisions.

Presumption (10) finds support in Territory v. Alohikea, 24 H. 570, 571 (1918): "[T]he mailing of a letter, postage prepaid, raises a presumption of receipt by the addressee." In Ahlo v. Tai Lung, 9 H. 272 (1893), the court declined to extend the presumption of receipt of a letter to include a presumption that it had been answered.

Presumption (12), establishing the criteria for the presumption of authenticity of ancient documents, is addressed in detail by the court in Hulihee v. Heirs of Hueu, 57 H. 312, 315, 555 P.2d 495, 498 (1976).

The customary minimum requirements are that the document must have been in existence for a period of not less than thirty years, that when originally discovered it must have been in some place where it would be natural to find a genuine document of its tenor and it must be unsuspicious in appearance. In the case of deeds of land, a fourth requirement is often stated, to the effect that the party claiming under the instrument or his predecessors must have been in occupation of the land since the time of the document's purported execution or some other circumstance giving an equivalent inference of genuineness must appear in addition to the required age, custody, and appearance.

Under the present rule, the age criterion has been changed to 20 years to comport with Rule 901(b)(8) of these rules and Fed. R. Evid. 901(b)(8).

The criteria for establishing the presumption of authenticity of an ancient document in this rule and the requirements for authentication of an ancient document in Rule 901(b)(8) are similar but not redundant because each serves a discrete evidentiary function. Rule 901(b)(8) is a preliminary admissibility requirement; an ancient document must qualify under the criteria established by that provision before it can even be introduced into evidence. Having surmounted the initial hurdle of admissibility, the document may be offered to the trier of fact as presumptively authentic on the basis of the same criteria, on the condition that the adverse party does not offer evidence in rebuttal sufficient to meet the burden of producing evidence. Should he succeed in doing so, the document remains in evidence, but the party upon whose behalf it has been introduced is not entitled to an instruction on the presumption of its authenticity.

Presumption (15) finds support in a series of Hawaii Supreme Court decisions. In Carey v. Hawaiian Lumber Mills, 21 H. 506, 511 (1913), the court said: "It is a rule of evidence that where the existence of a fact, condition or state of things is once established, the law presumes that such fact, condition, or state of things continues to exist as before, until the contrary is shown, or a different presumption is raised." See also Drummond v. Makaena, 30 H. 116 (1927). In subsequent decisions, the court reaffirmed this general rule with qualification. The presumption can be invoked only for conditions or things which by their nature are continuous rather than transitory, Henry Waterhouse Trust Co. v. Rawlins, 33 H. 876 (1936); and it can be overcome by a contrary presumption, Tropic Builders, Ltd. v. Naval Ammunition Depot, 48 H. 306, 402 P.2d 440 (1965).

RULE 303 SUPPLEMENTAL COMMENTARY

The Act 142, Session Laws 2001 amendment provided that a paid bill for goods or services is presumed to be authentic and to embody fair and reasonable charges for the itemized goods or services.

The Act 47, Session Laws 2011 amendment expanded evidentiary presumptions to include materials and legal opinions that are posted on government websites.

Case Notes

Error to instruct jury that deceased presumed to have exercised due care, where there was evidence deceased was negligent. 6 H. App. 516, 730 P.2d 342 (1986).