ILLUSTRATION

Assume X sues Y in a bailment action for failure to return property. A presumption of negligence or fault arises against Y and in favor of X upon proof of delivery of the property to Y's exclusive possession and control and its subsequent loss or damage. The purpose of the presumption at this point is to control the result of the case by rule of law in the absence of rebuttal evidence. When Y introduces rebuttal evidence, the presumption disappears from the case as a rule of law, but retains the probative value of an inference of fact. The burden of proof on the issue of negligence is not shifted to Y, but always remains with X. It was only the burden of proceeding with sufficient evidence to rebut the presumption which shifted to Y.

In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which State law supplies the rule of decision is determined in accordance with State law.

ELEMENTS

A.

B.

In civil actions or proceedings, the effect of a presumption

1) Respecting a fact,

2) Which is an element of a claim or defense,

3) As to which State law supplies a rule of decision with respect

to that claim or defense,

Effect is determined in accordance with State law.

COMMENTS

This rule follows the dictates of Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) and its progeny. This rule does not surface whenever a case concerns the application of State law to the facts, as is the situation in diversity of jurisdiction cases. Its vitality is apparent only where a presumption is applied to a party's claim or defense. The fact to which it applies must constitute an element of the claim or defense for the rule to be operative.

ILLUSTRATION

Assume X, who lives in Texas, is injured in an automobile accident in Texas which involved a car driven by Y, but owned by Z. Y and Z are residents of New York. Y, at the time of the accident, was not a licensed driver. X sues Y and Z in Federal court in Texas on the basis of diversity of jurisdiction.

A Texas statute makes proof of ownership of a vehicle prima facie evidence of the owner's consent to the operation of a vehicle by another driver. This statutory presumption forms an element of X's claim. Under the above circumstances, the law of Texas would apply inasmuch as the presumption (owner's consent) respecting a fact (Y driving the vehicle) constitutes an element (Z's consent to allow Y to operate the car) of X's claim.

In the above case, state law would not apply as to the presumption of competency of a witness to testify (e.g., eight year old witness) since competency does not directly relate to a claim or defense. On the other hand, where the competency of a testator is in issue at the time of the execution of a will and the fact of or absence of competency relates to a claim or defense, State law would control.

Likewise, State law would control where

a State statute raises a presumption of death after seven years of absence, provided the presumption related to an element of a claim or defense.

ARTICLE IV. RELEVANCY AND ITS LIMITS

RULE 401

DEFINITION OF "RELEVANT EVIDENCE"

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

1.

Having any tendency to make existence of any notable fact more probable, or;

2. Having a tendency to make any fact less probable than it would

be with or without the evidence.

COMMENTS

Evidence which tends to support the position of a party and tends to make the existence of the fact to be proved more probable or less probable is deemed to be relevant. No hard and fast rule governs the determination of relevance and its application to a particular proffer depends in large measure on a logical assessment of the facts and circumstances in the case. Where a party's proof is comprised primarily of circumstantial evidence, a step by step process must be followed in order to prove the case. Consequently, a piece of evidence standing alone may not seem relevant unless it is coupled with another piece of evidence. The saying "one brick does not make a wall" is particularly appropriate in characterizing this situation, and so one cannot be expected to produce with each piece of evidence a home run.

Relevance may be found in connection with evidence which explains another piece of evidence. Likewise, it may be present where evidence is offered to

support the reliability of other evidence, such as, the offering of evidence

All relevant evidence is admissible, except as otherwise provided by the constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

ELEMENTS

A. All relevant evidence is admissible.

B. Irrelevant evidence is not admissible.

C. Except as provided otherwise by:

1. Constitution.

2. Act of Congress.

3. By Rules of Evidence.

4. By other rules prescribed by Supreme Court.