“In a civil case, unless a statute or [the MREs] provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally.” MRE 301. Because “the function of a presumption is solely to place the burden of producing evidence on the opposing party,” it “allows a person relying on the presumption to avoid a directed verdict, and it permits that person a directed verdict if the opposing party fails to introduce evidence rebutting the presumption.”Widmayer v Leonard, 422 Mich 280, 289 (1985).
“Almost all presumptions are made up of permissible inferences. Thus, while the presumption may be overcome by evidence introduced, the inference itself remains and may provide evidence sufficient to persuade the trier of fact even though the rebutting evidence is introduced. But always it is the inference and not the presumption that must be weighed against the rebutting evidence.” Widmayer, 422 Mich at 289. “[I]f the jury finds a basic fact, they must also find the presumed fact unless persuaded by the evidence that its nonexistence is more probable than its existence.” Id.
Once a judge concludes that the presumption has been rebutted, he or she “should not instruct the jury regarding the presumption: it no longer exists. It has, instead, become a permissible inference on the same level as any inference from the facts. Rather, the judge should instruct the jury about the burden of proof and the underlying facts.” State Farm Mut Auto Ins Co v Allen, 191 Mich App 18, 23 (1991).
Presumptions in criminal cases are governed by MRE 302, which provides:
“(a) Scope. In a criminal case, [MRE 302] governs a presumption against a defendant that is recognized at common law or is created by statute, including statutory provisions that certain facts are prima facie evidence of other facts or of guilt
(b) Instructing the Jury. When a presumed fact against a defendant is submitted to the jury, the court must instruct the jury that:
(1) it may or may not conclude from the basic facts that the presumed fact is true; and
(2) the prosecution still bears the burden of proof beyond a reasonable doubt of all the elements of the offense.”
M Crim JI 3.2 must be given in every criminal case and states, in relevant part:
“A person accused of a crime is presumed to be innocent. This means that you must start with the presumption that the defendant is innocent. This presumption continues throughout the trial and entitles the defendant to a verdict of not guilty unless you are satisfied beyond a reasonable doubt that [he/she] is guilty.” M Crim JI 3.2(1).
In criminal cases, “[l]egislative [or statutory] presumptions are valid so long as there is a rational connection between the proven facts and the fact to be presumed. If the presumed fact is more likely than not to flow from the proven fact, the presumption is constitutionally valid.”1 People v Dorris, 95 Mich App 760, 765 (1980) (internal citations omitted). In Dorris, the defendants appealed their conviction of being in possession of an incendiary device because the prosecution had not proven unlawful intent. Id. The Court concluded that presuming unlawful intent “was neither unreasonable nor unconstitutional” because “incendiary devices generally have no legal purpose” and “[i]t is more likely than not that one in possession of [an incendiary device] possesses [it] with unlawful intent.” Id. at 765-766.
“When the trial court undertakes to eliminate from the jury’s consideration a statutory presumption as a matter of law, at the very least there must be clear, positive, and credible evidence opposing the presumption.” White v Taylor Distrib Co, 275 Mich App 615, 621 (2007). For example, MCL 257.402(a) (rear-end collision statute) provides that the offending driver is presumed to be guilty of negligence. White, 275 Mich App at 621. However, this presumption may be rebutted by showing an adequate excuse or justification for the collision. Id.
1 Constitutional concerns equivalent to those in a criminal proceeding may not be an issue in civil cases. See McKinstry v Valley OB-GYN Clinic, PC, 428 Mich 167, 182-183 (1987) (finding that a civil litigant’s contractual choice-of-forum decision did not involve constitutional rights; further noting that waiving a civil jury trial “is not tantamount to deprivation of a fundamental constitutional right” because “[t]he right to a jury trial in a civil action is . . . permissive, not absolute”).