WPI 24.05 Presumptions—Rebuttable Mandatory—Which Affect the Burden of Proof (When Presumed Fac...

This instruction is proper only for rebuttable mandatory presumptions that affect the burden of proof, when the presumed fact has been challenged and constitutes a jury question. It should therefore not be given if the court can rule on the presumed fact or facts as a matter of law. The bracketed phrase “if you find” should be used if the basic facts are also a jury question. The bracketed word “because” should be used if the basic facts are admitted or can otherwise be determined to exist as a matter of law. In applying this instruction, the user should pick out the appropriate burden of proof necessary to rebut the presumption and then give a definition of that burden. See WPI Chapter 21 (Burden of Proof) for appropriate definitions.

An example of the use of this instruction is as follows:

For a collection of Washington cases identifying presumptions that shift the burden of proof, see Tegland, 5 Washington Practice, Evidence Law and Practice §§ 301.15, 301.16 (6th ed.). Presumptions that must be overcome by “clear and convincing” evidence or “clear, cogent, and convincing” evidence shift the burden of proof upon the presumed fact. See Tegland, supra (setting forth examples of such presumptions). For a discussion of presumptions that are difficult to classify, see the Comment to WPI 24.03 (Presumptions—Rebuttable Mandatory—Which Only Affect the Burden of Going Forward with the Evidence (When Presumed Fact Constitutes a Jury Question)).

The opinion in Burrier v. Mutual. Life Ins. Co., 63 Wn.2d 266, 275, 387 P.2d 58 (1963), could be read to say that the reluctance of the court to create a double burden by giving effect to a presumption directed against the party who has the burden of proof does not apply to the presumption against suicide. However, the trend seems to be against such double burdens. See the Comment to WPI 24.03 (Presumptions—Rebuttable Mandatory—Which Only Affect the Burden of Going Forward with the Evidence (When Presumed Fact Constitutes a Jury Question)).