Burdens of Proof and Presumptions

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All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

State legislatures have the authority to establish presumptions and rules respecting the burden of proof in litigation.1 However, the Supreme Court has held that the Due Process Clause forbids the deprivation of liberty or property upon application of a standard of proof too lax to ensure reasonably accurate fact-finding. The Court has opined that “[t]he function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of fact-finding, is to ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’” 2 With respect to presumptions, the Court has held that a presumption does not violate the Due Process Clause as long as it is not unreasonable and is not conclusive. A statute creating a presumption that is entirely arbitrary and operates to deny a fair opportunity to rebut it or to present facts pertinent to a defense is void.3 On the other hand, the Court has sustained legislation declaring that the proof of one fact or group of facts shall constitute prima facie evidence of a main or ultimate fact if there is a rational connection between what is proved and what is inferred.4

Applying the test laid out in Mathews v. Eldridge to determine what process is due in a particular situation,5 the Court has held that a standard at least as stringent as “clear and convincing” evidence is required in a civil proceeding to commit an individual involuntarily to a state mental hospital for an indefinite period.6 Similarly, because parents’ interest in retaining custody of their children is fundamental, the state may not terminate parental rights by a preponderance of the evidence—the burden of proof to award money damages in an ordinary civil action—but must prove that parents are unfit by clear and convincing evidence.7 Furthermore, parental unfitness must be established affirmatively and may not be assumed based on some characteristic of the parent.8

For a time, the Court used what it called the “irrebuttable presumption doctrine” to curb legislative efforts to confer a benefit or to impose a detriment based on presumed characteristics of a person.9 In Stanley v. Illinois, the Court found invalid a construction of the state statute that presumed unmarried fathers to be unfit parents and prevented them from objecting to state wardship.10 The Court likewise struck down mandatory maternity leave rules requiring pregnant teachers to take unpaid maternity leave at a set time prior to the date of the expected births of their babies based on a conclusive presumption that every pregnant teacher who reaches a particular point of pregnancy becomes physically incapable of teaching.11

In another case, the Court opined that a state may require that nonresidents pay higher tuition charges at state colleges than residents and assumed that a durational residency requirement would be permissible as a prerequisite to qualify for the lower tuition, but held it was impermissible for the state to presume conclusively that because the legal address of a student was outside the state at the time of application or at some point during the preceding year he was a nonresident as long as he remained a student. Instead, the Due Process Clause required that the student have the opportunity to show that he is or has become a bona fide resident entitled to the lower tuition.12 Similarly, the Court invalidated a food stamp program provision making ineligible any household with a member age eighteen or over who was claimed as a dependent for federal income tax purposes the prior tax year by a person not himself eligible for stamps, holding that the provision created a conclusive presumption that fairly often could be shown to be false if evidence could be presented.13 The rule that emerged from these cases was that the legislature may not presume the existence of a decisive characteristic based on a given set of facts, unless it can be shown that the defined characteristics do in fact encompass all persons and only those persons that the legislature intended to reach.14

The Court limited the irrebuttable presumption doctrine in the 1975 case Weinberger v. Salfi, upholding a Social Security provision requiring that the spouse of a covered wage earner must have been married to the wage earner for at least nine months prior to his death in order to receive benefits as a spouse.15 Purporting to approve but distinguish prior cases, the Court imported traditional equal protection analysis into considerations of due process challenges to statutory classifications.16 The Court opined that extension of the prior cases to government entitlement classifications, such as the Social Security Act qualification standard before it, would “turn the doctrine of those cases into a virtual engine of destruction for countless legislative judgments which have heretofore been thought wholly consistent with the Fifth and Fourteenth Amendments to the Constitution.” 17

There is some uncertainty about the viability and scope of the irrebuttable presumption doctrine since Salfi, and the doctrine has rarely appeared on the Court’s docket in recent years.18 In Turner v. Department of Employment Security, decided after Salfi, the Court invalidated a statute making pregnant women ineligible for unemployment compensation for a period extending from twelve weeks before the expected birth until six weeks after childbirth.19 By contrast, in Usery v. Turner Elkhorn Mining Co., the Court held that a provision granting benefits to miners “irrebuttably presumed” to be disabled is merely a way of giving benefits to all those with the condition triggering the presumption.20

1: Hawkins v. Bleakly, 243 U.S. 210, 214 (1917); James-Dickinson Co. v. Harry, 273 U.S. 119, 124 (1927). Congress’s power to provide rules of evidence and standards of proof in the federal courts stems from its power to create such courts. Vance v. Terrazas, 444 U.S. 252, 264–67 (1980); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 31 (1976). In the absence of congressional guidance, the Court has determined the evidentiary standard in certain statutory actions. Nishikawa v. Dulles, 356 U.S. 129 (1958); Woodby v. INS, 385 U.S. 276 (1966).
2: Addington v. Texas, 441 U.S. 418, 423 (1979) (quoting In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring)).
3: Presumptions were voided in Bailey v. Alabama, 219 U.S. 219 (1911) (anyone breaching personal services contract guilty of fraud); Manley v. Georgia, 279 U.S. 1 (1929) (every bank insolvency deemed fraudulent); W. & Atl. R.R. v. Henderson, 279 U.S. 639 (1929) (collision between train and auto at grade crossing constitutes negligence by railway company); Carella v. California, 491 U.S. 263 (1989) (conclusive presumption of theft and embezzlement upon proof of failure to return a rental vehicle).
4: Presumptions sustained include Hawker v. New York, 170 U.S. 189 (1898) (person convicted of felony unfit to practice medicine); Hawes v. Georgia, 258 U.S. 1 (1922) (person occupying property presumed to have knowledge of still found on property); Bandini Co. v. Superior Ct., 284 U.S. 8 (1931) (release of natural gas into the air from well presumed wasteful); Atl. Coast Line R.R. v. Ford, 287 U.S. 502 (1933) (rebuttable presumption of railroad negligence for accident at grade crossing). See also Morrison v. California, 291 U.S. 82 (1934).
5: Mathews v. Eldridge, 424 U.S. 319 (1976); see also Amdt14.S1.5.4.2 Due Process Test in Mathews v. Eldridge.
6: Addington v. Texas, 441 U.S. 418 (1979).
7: Santosky v. Kramer, 455 U.S. 745 (1982). The Court has upheld application of the traditional preponderance of the evidence standard in paternity actions. Rivera v. Minnich, 483 U.S. 574 (1987).
8: Stanley v. Illinois, 405 U.S. 645 (1972) (presumption that unwed fathers are unfit parents). Cf. Michael H. v. Gerald D., 491 U.S. 110 (1989) (statutory presumption that a child born to a married woman living with her husband is the child of the husband defeats the right of the child’s biological father to establish paternity).
9: The approach was not unprecedented, some older cases having voided tax legislation that presumed conclusively an ultimate fact. Schlesinger v. Wisconsin, 270 U.S. 230 (1926) (deeming any gift made by decedent within six years of death to be a part of estate denies estate’s right to prove gift was not made in contemplation of death); Heiner v. Donnan, 285 U.S. 312 (1932); Hoeper v. Tax Comm’n, 284 U.S. 206 (1931).
10: 405 U.S. 645 (1972).
11: Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974).
12: Vlandis v. Kline, 412 U.S. 441 (1973).
13: Dep’t of Agric. v. Murry, 413 U.S. 508 (1973).
14: The doctrine in effect afforded the Court the opportunity to choose between resort to the Equal Protection Clause or to the Due Process Clause in judging the validity of certain classifications. Thus, on the same day the Court decided Murry, it struck down a similar food stamp qualification on equal protection grounds. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973).
15: 422 U.S. 749 (1975).
16: Id. at 768–70, 775–77, 785.
17: Id. at 772.
18: Cf. Elkins v. Moreno, 435 U.S. 647, 660–61 (1978) (declining to reach the question of whether to overrule or further limit Vlandis v. Kline, 412 U.S. 441 (1973), in light of Salfi, pending resolution of potentially dispositive state law issue).
19: 423 U.S. 44 (1975)
20: 428 U.S. 1 (1976); see also Califano v. Boles, 443 U.S. 282, 284–85 (1979) (Congress must fix general categorization; case-by-case determination would be prohibitively costly).