1  Later in his charge, the trial court judge recited the provisions of OCGA 19-7-20, relating to the presumption, but did not otherwise instruct the jury as to its effect.

2  Our analysis is confined to a civil case and assumes the presumption is rebuttable, as opposed to conclusive, and favors the party having the original burden of proof. Presumptions operating against such a party would affect neither the duty to produce evidence nor the burden of proof.

3  Consider Federal Rules of Evidence, 301: "In all civil actions . . . a presumption imposes on the party against whom it is directed, the burden of going forward with evidence to rebut or meet the presumption but does not shift to such party the burden of proof in the sense of the risk of non-persuasion, which remains throughout the trial upon the party of whom it was originally cast."

4  Much has been said and written about the confusion surrounding the proper effect of a presumption. Ample support can be located for most any theory. See, e.g., Agnor, Agnor's Georgia Evidence, 17-8 (2d ed. 1956); McCormick on Evidence, 336, 344 (3d ed. 1954); Graham, Evidence -- Text, Rules, Illustrations and Problems (published by National Institute for Trial Advocacy, 1953).

5  Some states have adopted statutory provisions expressly defining presumptions affecting the burden of producing evidence and those affecting the burden of proof. The distinction often relates to public policy considerations. See, e.g., West's Ann. Cal. Evid. Code 601 et seq.

6  Reference to the civil edition of the Pattern Jury Charges, prepared by the Council of Superior Court Judges, would have afforded no help to the trial judge. No charge as to the effect of a presumption is included. Not charging at all on presumptions would be consistent with the Thayer "bursting bubble" approach as defined in McCormick, supra, 344(A). Under this approach, a presumption is simply a procedural device that satisfies a party's burden of producing evidence. When evidence opposing the presumption is offered, from which a jury could reasonably find the non-existence of the presumed fact, the presumption disappears. It "bursts." The determination that the presumption has been rebutted is, under this theory, for the court rather than the jury. But Georgia differs with the Thayer theory in this respect. Belch v. Gulf Life Ins. Co., 219 Ga. 523, 527 (136 SE2d 351) (1964) and Templeton v. Kennesaw Life &c. Ins. Co., 216 Ga. 770, 773 (119 SE2d 549) (1961) hold that a presumption, once established, does not vanish in the face of evidence to the contrary but vanishes, if at all, in the jury room. Thus, it would seem helpful to acquaint the jury with the effect of the presumption or, at least, with the effect of proof of the fact which gives rise to the presumption.The content of such instructions would depend on the type of presumption and whether the basic fact or the presumed fact, or both, are disputed. A charge on the presumption of legitimacy, for example, would logically follow a charge on the primary burden of proof, would refer to the statutory provision, would briefly explain the effect of the presumption (based on the particular facts), and might conclude with a reminder that the burden of proof or persuasion remains on the party who had it originally.