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21 Loy. L. Rev. 377 (1975)
Presumptions and Burden of Proof

handle is hein.journals/loyolr21 and id is 389 raw text is: PRESUMPTIONS AND BURDEN OF PROOF Burden of Proof It is difficult to fully appreciate the significance of the terms burden of proof and presumption without first attempting to understand the common ambiguity they have traditionally shared.' In most cases, a presumption imposes the burden of proof upon the party against whom the presumption is operable. In certain cases, however, a presumption creates a burden which legally cannot be overcome. It is this interplay between presumptions and burden of proof which is the focus of this article. This article will discuss the common-law doctrine surrounding the concept of burden of proof and contrast it with the concept prevalent in the Louisiana jurisprudence. In reality, these two con- cepts are closely interrelated. For example, Thayer's comments on the meaning of burden of proof can succinctly combine both the notion of burden of producing evidence and -that of burden of per- suasion. It marks . . . [t]he peculiar duty of him who has the risk of any given proposition on which parties are at issue,-who lose the case if he does not make this proposition out, when all has been said and done.' Thus, it may generally be concluded that each individ- ual party bears the burden of proof on all essential elements of his particular cause of action or defense. He must produce the required degree of evidence to overcome the position taken by his opponent, first, upon a motion for a directed verdict and, second, upon the conclusion of the trial. Against this general background, it should be noted that the burden of producing evidence differs from the burden of persuasion in that the former becomes critical before a decision by the trier of 1. Proof is an ambiguous word. We sometimes use it to mean evidence, such as testimony or documents. Sometimes when we say a thing is proved we mean that we are convinced by the data submitted that the alleged fact is true. Thus, proof is the end result of conviction or persuasion produced by the evidence. Naturally, the term burden of proof shares this ambivalence. The term encompasses two separate burdens of proof. One burden is that of producing evidence, satisfactory to the judge, of a particular fact in issue. The second is the burden of persuading the trier of fact that the alleged fact is true. MCCORMIcK's HANDBOOK OF THE LAW OF EVIDENCE § 336, at 783-84 (2d ed. E.W. Cleary 1972) [hereinafter cited as McCORMICK]; 9 J. WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW §§ 2483-98, at 266-352 (3d ed. 1940) [hereinafter cited as WIGMORE]. 2. J. THAYER, A PRELIMINARY TREATISE ON EVIDENCE 355 (1898).