evidence Flashcards
hearsay
d.i.a approach
definition: Hearsay is “a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.”
* I: it is important to determine if a statement is hearsay. Hearsay is not admissible unless it
comes within an exception, or non hearsay.
* A: Analyze which exceptions and exemptions/non hearsay apply.
Statement: a persons oral or written assertion, or non verbal conduct intended as a assertion. (thing that is intended to make a statement: conduct/gestures, words)
Exemptions= offered to show
*Effect on listener or reader- the reaction the person had from hearing or reading the statement
*verberal legally for k formation
* adoptive - person stayed silent when a reasonable person would have said something
* agent/employer - had a relationship at the time concerning the matter
* co conspirators- made during the course and in furtherance of a crime
*Statement against interest (a 3rd party is making the statement )
statement by a non-party against his interest that would subject him to criminal or civil liability, which a reasonable person in the same position would not have made unless they believed it was true
*-Admission by party opp ( a party to the case is making the statement against the other party (snitch)
Exceptions:
-Excited utterance (during or imm. after the starling event); —Present sense impression: a present sense impression is “a statement describing or
explaining an event or condition made while or immediately after the declarant perceived
it;
- Statement for purpose of medical treatment or diagnosis: these statements must be made for and reasonably pertinent to medical diagnosis or treatment and describe medical history, past or present symptoms or sensations, their inception, or their general cause;
- Business records: A record of “acts, events, conditions, opinions, or diagnoses” is admissible if it is made “at or near the time” of the event recorded by a “person with knowledge” of the event. Further, the making of the record must occur in the course of a regularly conducted business activity, and it must be the regular practice of the business to make such a record;
-Recollection recorded: a record that is on a matter that the witness once knew about, but now cannot recall well enough to testify fully and accurately, which was made while the matter was fresh in the witness’s memory, may be read into evidence (however, the proponent may not offer it as an exhibit;
- Then-existing state of mind exception: if a statement shows a declarant’s mental, emotional, or physical condition (including motive, intent, or plan) it is not hearsay.;
-Habit
A person regular response to a specfic set of circumstances. Relevant habit evidence is admissible to prove the person’s conduct was in conformity with the habit.
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exemption
(policy reasons )(always do the relevant anaysis for these)
subsequent remedial measures, a design defect or failure to warn, offer to compromise, offers to pay medical and similar expenses, plea negotiations, liability insurance, rape sheild
Exceptions to above, 1. subsequent remedial measures: Ownership;Control; or Feasibility of precautionary measures
- Offers to settle a claim A witness’sbias or prejudice; Negatingacontention of undue delay;or
Proving aneffort to obstructa criminal investigation or prosecution - Pleas neg allowed if another statement made during the same plea discussions has beenadmitted,and the statements should be considered together forfairness’s sake;or The statements were madefalselyunder oath with an attorney present;
- insurance: Witness bias or prejudice; Agency; Ownership; or Control;
- rape shield:(crim)Specific instancesof V’s sexual behavior, to prove thatsomeone other than Dwas the source ofsemen,injury, orother physical evidence; Specific instancesof V’s past sexual behavior with D, to proveconsent If omission of the evidence would violateD’s constitutional rights
Vs
(civ) may admit evidence offered to prove V’s sexual behavior or sexual predisposition if itsprobative value substantially outweighs the danger of harmto any Vand of unfair prejudiceto any party. The court may admit evidence of V’s reputation only if V hasplaced it in controversy.
general evd.
Body of Law – Under the Federal Rules of Evidence
General Law – Under the Federal Rules of Evidence, testimony and physical evidence
will be admissible as long as it is deemed relevant, not excluded by a recognized
privilege or deemed to be unreliable hearsay, without exception, and as long as the
probative value is not outweighed by any prejudicial effect. And, if offered to impeach,
deemed proper impeachment under the Federal Rules.
Relevancy
This evidence may be relevant as it tends to prove a material fact either more probably
or less probable and its probative value is not outweighed by any prejudicial effect.
o No Offers of Settlements
o No Statements of Sympathy
o No Offers to Pay Medical Expenses
o No Subsequent Remedial Measures (“after” “…weeks/months later”
o No Insurance Coverage
All contrary to public policy and probative value outweighed by prejudicial effect
Character Evidence (is about relevancy and probative value)
“Prior” “before” “…weeks/months/years earlier”
Under the FRE, character evidence is inadmissible to show that someone acted in
conformity with that character or trait of character on a particular occasion. And given
that its probative value will be outweighed by its prejudicial effect.
General Exceptions to character:
o In criminal setting Defendant may introduce their character
o In criminal setting Prosecution on rebuttal
o In criminal setting character of victim (usually dead) if Defendant alleging self-
defense.
o In civil setting if character is in issue
Exception: MIMIC, if probative value not outweighed by prejudicial effect.
Rape Shield – no evidence of victims past sexual behavior/history, unless to show
consent, it “may” be admissible after a full evidentiary hearing.
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Privileges
Attorney/Client Privilege
Private communications made during the course of legal representation are privileged,
unless in furtherance of a crime or fraud.
Attorney Work Product Privilege
Material gathered in anticipation of litigation are privileged and not discoverable, unless
a showing of 1) substantial need and 2) undue burden and justice so requires
production.
Marital Testimonial Privilege
In a criminal session, the witness spouse shall not be compelled to testify against their
defendant spouse (must be married at the time). Witness spouse holds the privilege and
may waive it.
Marital Communication Privilege
Private communications made during the marriage are privileged, even if offered after
divorce. Both spouses hold the privilege, and both must waive it in order for private
conversations to be admitted.
Lay Witnesses
Lay witness must take an oath to tell the truth, but not under god, have the capacity to
observe and remember, and can testify as to:
o the speed of an automobile,
o sobriety,
o age and,
o signature.
Competency of Child Witness
A child may testify if the courts determines that the child 1) knows the difference
between truth and falsehood, and 2) understands that s/he is has a duty to tell the
truth.
Hearsay
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Hearsay is an out of court statement offered for its truth, generally inadmissible unless
it falls within a recognized exception. (“said” “statement”, “told” “report” “email’ “text”
“letter” etc.)
Totem-Pole Hearsay (double hearsay)
“The report/diary which contained a statement…”
Totem-Pole Hearsay is hearsay within hearsay; the rule is each level of hearsay must be
met with a recognized exception in order for the entire thing to be admissible.
Excited Utterance Exception
A statement made while under the influence or stress of (or shortly after) the startling
event.
Present Sense Impression Exception
A statement describing or explaining an event or condition, made immediately after
perceiving the event or condition.
Past Recollection Recorded Exception
1) witness once had personal knowledge, 2) Witness now forgets the writing/statement,
3) the writing was made or adopted by the witness, 4) the writing was made while the
event was fresh in the witness’s memory, and 5) the witness can attest that the writing
is accurate when made.
Business Records Exception
A record of an act, event, condition, opinion or diagnosis, and the record was made and
kept in the regular course of business. (usually supported by custodian of record)
Medical Treatment/Diagnosis Exception
Statement made for medical diagnosis or treatment and describes medical history,
symptoms or general cause.
Dying Declarations Exception
Under the Federal Rules of Evidence dying declarations are only admissible if the
declarant was under the (subject) belief of impending death.
Fresh/First Complaint
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“Although offered for its truth, if this statement was the first time the victim complained
about the rape/sexual abuse it may come in as non-hearsay if it was seasonably made
given the circumstance and to collaborate the victim’s testimony and hence credible
and reliable.
Statements of Child Sexual Abuse Victims Exception to Hearsay (Unavailable)
Statements of alleged child sexual abuse victim under age ten describing an act of sexual
contact and/or perpetrator may be admissible.
Scientific Evidence
Qualifying an Expert Witness
If the party has laid the foundation that this expert has sufficient Background,
Education, Experience and Training (BEET) and may assist the trier of fact s/he may
testify only within the scope of his/her expertise.
Scientific Evidence - Daubert
If the scientific evidence is sufficient, helpful and reliable it may be admissible, the
reliability is the most important prong, if the scientific principles and methods are
reliable and generally accepted within the scientific community, the scientific evidence
will be admissible.
Impeachment
Under the Federal Rules of Evidence you can impeach a witness by:
1) prior inconsistent statements,
2) bias,
3) defects in testimonial faculties, (poor memory, eyesight, hearing)
4) prior convictions of felonies and misdemeanors for untruthfulness (not more
than ten years from conviction) NO extrinsic evidence. Rule 609
5) reputation or opinion for untruthfulness. Rule 608
Blurb: “Under the Federal Rules of Evidence a party may impeach a witness through five
methods: 1) prior inconsistent statements, 2) bias, 3) defects in testimonial faculties, 4)
attacking character by crimes within 10 years or crimes of dishonesty and 5) attacking
character by reputation or opinion for dishonesty. The court will always balance the
prejudicial effect vs. the probative value.”
general
Evidence – General Law
Under the Federal Rules of Evidence, testimony and documents will only be admissible
as long as they are deemed relevant and not contrary to public policy, not excluded by a
recognized privilege or deemed as unreliable hearsay, and as long as the probative value
is not outweighed by any prejudicial effect and serve justice and fairness. And, if offered
to impeach, is deemed proper impeachment under the Rules.
what does it mean to be unavailable and what statements need a unavailable person
What are unavailable declarant statements- 1. Former testimony 2. Dying declaration 3. Declaration against interest 4. Statement of personal or family history 5. Statement against party that caused declarants unavailability
When is a person unavailable- dead/ mentally defective, outside of courts, invoke privledge, refuse to testify, witness cannot remember, the person is responsible for the unavailable witness
- [ ] What is the difference between a party opponent statement or. statement against interest is the person giving the statement a third party
hearsay within hearsay
Hearsay within hearsay
Business records - because the record and the statements within the record are two separate items trying to be admitted ….the record is to prove the event took place when it did at the place by the person ….. the statements in the record is to show what actually happen/wounds etc. (Pg 373 in barber book)
Double hearsay admissible only if both layers fall within an exception
Hearsay within hearsay - reports either police or business reports are hearsay within hearsay because it’s the reports itself which will qualify as a business or public document exception but then it’s the statements inside the report that needs to satisfy a exception. The exceptions to see if it applies may be present sense or excited utterance, but those had to be made Doran the time or immediately after. Borsh, that the speaker that made the statements had a duty to make those statements ye a police officer, or a worker.
Hearsay topics: offered for impeachment, character, truth, non hearsays (prior consistent …), (effect on listener(what they believed when got the info), insurance etc), hearsay exceptions
Impeachment
General rule: any party may impeach a witness (even the party that called the witness). can impeach by either:
Prior inconsistent statements: These can be used as substantive evidence as well if they fall within a hearsay exception or exclusion. The witness must be given the opportunity to
explain or deny the statement if extrinsic evidence is used, unless the witness is the
opposing party, not in court, or if the interests of justice so require.
-Bias and interest: The witness must be confronted on the stand. Extrinsic evidence can
only be used if the witness is asked about the bias first.
-Conviction of a crime: Whether the conviction can be used depends on (mnemonic=NAD):
*the Nature of the crime (felonies or misdemeanors of dishonesty are automatically
admissible; any felony is admissible if it passes a balancing test),
the Amount of time that has passed (if more than 10 years after conviction or release has passed, whichever is later,
it is generally not admissible), and (only in criminal cases) -whether the witness is a
Defendant (it’s less likely to be admitted if the witness is a defendant because the probative
value must outweigh its prejudicial effect).
- Bad acts(to do with honesty): Questioning about acts that are probative of truthfulness or untruthfulness . ie. Crimes of dishonesty- Embezzlement;
False statement to the government; False pretenses;
Fraud; Forgery; Larceny by trick;
Perjury; Obstruction of justice; and
Tax evasion
-Extrinsic evidence is not permitted. Note that on both exams when this was tested, the question was whether a party could admit extrinsic evidence that the witness lied on a job application or resume (and the answer is that extrinsic evidence would not be permitted). (July 2014, Feb 2009)
- Reputation or opinion for untruthfulness: The witness cannot testify to specific facts.
(Extrinsic evidence is permitted because the witness is extrinsic evidence
-Sensory deficiencies: This is the witness ability to observe, remember, or relate accurately.
Extrinsic evidence is permitted.
-Contradiction: If the witness made a mistake in her testimony or lied during direct
examination, she may be contradicted. Extrinsic evidence can be used
Hostile (any witness giving a inconsistent statement from the written statement ..including memory loss etc)
-a witness creditability may be attached by any party, including the party calling her. To impeach the creditability of a witness the party may show that the witness has on another occasion made statements that are inconsistent with some material part of her present testimony. Under fire, an inconsistent statement can be proved by either examination the witness or by extrinsic evidence.
-to prove inconsistent statement by extrinsic evidence of the prior statement, the witness generally must be given an opportunity at some point to explain or or deny the allegedly inconsistent statement and the statement must be relevant some issue in the case.
Can be impeached based on inconsistent statements by introduce evidence however they must get the opportunity To explain or deny. (Inconsistent statement here is different from inconsistent statement that’s non hearsay because that statement Is made under oath at a prior hearing or deposition, trial or proceeding)
character
General rule: character evidence is inadmissible to prove that someone acted in accordance with his character at the time the event occurred. However, * Civil cases: Character evidence is permitted when character is an essential element of the case.
(negligent entrustment or hiring, defamation, or child
custody. Reputation, opinion, and specific acts can be used to prove character)
Not allowed unless:
- If relevant to the crime committed, and is by the community at large (not friends opinon) then allowed.
- D opened the door by testifying or having a witness testify on his behalf.
- Pros is impeaching the witness by have you heard or did you know.
- Civil case unless it is directly a issue in the case (element in the crime)
- Criminal cases: Generally, character evidence is inadmissible in the prosecutor’s case-in-chief to prove that the defendant acted in conformity with his own character. However, once D open door (by testifying or having a witness testify by reputation or opinion)and introduce evidence of a pertinent (relevant) character trait to prove that he acted in conformity with
his character at the time in question. Then, the prosecutor may rebut by using reputation, opinion, or cross-examining the defendant’s witness by asking about specific
acts.
OR can be used to prove MIMIC and is not to do with D’s character
statements for the purpose of identification
Statements identifying a person, break it up … one part may not be allowed …
-ex:Medical statements to the condition while also giving a Iden. Of a person.
-id a person when giving a police statement 0r photo array-(that is not under oath at a pror proceeding) so only id come in not other stuff.
identification of a victim, that lacks personal knowledge because they Dont remember due to being unconscious, but they have wounds will be permitted to testify because they will be cross examined “whether a reasonable juror can find that the witness is speaking from personal knowledge, even if they don’t remember
this is different from a Hair, essay statements, and the witness say they do not recall because here the witness is talking about. Don’t recall identification of a person versus Hair say is for calling about a statement that they made.
relevant
Relevancy: evidence is relevant if it has any tendency to make a fact more or less probable than it would
be without the evidence, and the fact is of consequence in determining the action.
* Admissibility: all relevant evidence is admissible unless a statute or rule says otherwise, or the 403 balancing test is failed. or is excluded based on a policy reason or privledge.
-the 403balancing test
The probative
value can not be substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
-policy reasons (always do the relevant anaysis for these)
subsequent remedial measures, a design defect or failure to warn, offer to compromise, offers to pay medical and similar expenses, plea negotiations, liability insurance, rape sheild
Exceptions to above, 1. subsequent remedial measures: Ownership;Control; or Feasibility of precautionary measures 2. Offers to settle a claim A witness’sbias or prejudice; Negatingacontention of undue delay;or
Proving aneffort to obstructa criminal investigation or prosecution 3. Pleas neg allowed if If another statement made during the same plea discussions has beenadmitted,and the statements should be considered together forfairness’s sake;or The statements were madefalselyunder oath with an attorney present; insurance: Witness bias or prejudice; Agency; Ownership; or Control; rape shield:(crim)Specific instancesof V’s sexual behavior, to prove thatsomeone other than Dwas the source ofsemen,injury, orother physical evidence; Specific instancesof V’s past sexual behavior with D, to proveconsent If omission of the evidence would violateD’s constitutional rights (civ) may admit evidence offered to prove V’s sexual behavior or sexual predisposition if itsprobative value substantially outweighs the danger of harmto any Vand of unfair prejudiceto any party. The court may admit evidence of V’s reputation only if V hasplaced it in controversy.
-Prior inconsistent statements v.
Sworn prior inconsistent statements are admissible to impeach the witness and as substantive evidence. Unsworn prior inconsistent statements (informal interviews) may only be used to impeach the witness.
6th amd. confortation clase
Confrontation clause
Generally A hearsay statement will not be admitted when it is offered against the accused, the declarant is unavailable, the statement was testimonial in nature, the accused had no opportunity cross examine the statement (if one not satisfied then will be admitted)
A non testimonial statement is when the primary purpose of the statemen (it is to get police to help with a on going emergency (911 calls)… a testimonial statement is to establish or prove past events for the purpose of litigation
Hearsay exceptions likely in a confrontation clause
Hearsay within heasay= victim to 911 operator the 911 operator to police officer. (All for a emergency)
Victim to police when action stopped (defendant is away) is for the purpose of litigation
so in essay, first list hearsay exceptions that apply then tell whether it violate the confortation clause.
list of hearsay exception that are triggered in confortation clause: present sense impression (statement describing or explain a event or condition made while or immediately after the declarant perceived), excited utterance- statement that relates to a startling event, made while declarant was under the stress of the excitement, declaration of physical condition are admissible if made to assist in diagnosing or treating a condition.
extensic evidence or specfic acts
- [ ] Extrinsic evidence - Evidence other than the witness’s testimony in the current trial (prosecutor bringing exhibits (affidavits etc) or a second witness to testify about what the 1st witness is testifying about. The 2nd witness cant use specific acts only have you heard did you know)
Extrinsic evidence is allowed for impeachment - Evidence is ona non-collateral matter(on d’s creditability and not the core of the case , and
Witness is given a chance to explain or deny the inconsistency (FRE 613(b)) and it is in line with Rule 403 balancing; or Extrinsic evidence is for acriminal convictionand admissible underFRE 609
Opposing counsel is afforded an opportunity to examine the witness about it (FRE 613) - [ ] extrinsic evidencebe used to cross-examine a witness about acollateralmatter only if Evidence of acriminal convictionthat complies with theFRE 609standards Evidence of awitness’s prior inconsistent statement, bias, or mental capacity(at the judge’s discretion - must be follow Rule 403 balancing)
Specfic acts
Impeachment/truthfulness,
witnesses (lay or expert)
Witness
-Lay witness opinions are admissible if rationally based on the perception of the witness, help to clear understanding of testimony or determine a fact in issue, not based on scientific technical or other specialized knowledge.
-can impeach a witness by casting a adverse reflection of the veracity of a witness (memory loss)
expert (consultant or testimonional)
can use knowledged that was said during testimony. must use whats excepted in the community, treatis, can read to jury cant let them read alone….
Consultant vs retained
Consultant not discoverable unless adverse have an undue hardship getting evidence and no other way. Then is discoverable
common confused areas
- [ ] Medical record vs business exception: using info given to nurse /doctor/ or 911 dispatcher: can only use statements pertaining to medical condition. it will fall under medical diagnosis or present medical condition. D’s statement does not qualify for the business record exception because the emergency room physician had no personal knowledge of the attack on D VS. ordinary course of business- Business records are made in the course of business, regular practice of the business to make the record, made at or near time of event, made by person with duty to record plus personal knowledge (or a informant w business duty to report had personal knowledge of what v said.the record but also be authenticated. (Can be authenticated through the testimony or written certification of a record custodian or other qualified witness.
- [ ] When are police records public exception vs privilegede -Police statements is public office exception- activity of a office or agency ..matters pursuant to their duties imposed by the law (written reports) but if police make a tape of the statements after (for purpose to preserve for trial that’s not because (testimonial being prepared for anticipation of lit) and need a exception to get in
- [ ] Medical expense vs offer to settle couple with admission…
Med expenses is excluded dont matter when raised (b4 or after notice of dispute)
Settlement offers must be after a dispute is file to not be admitted. - [ ] Past Recollection recorded vs present recollection/writing to refresh- recollection recorded is when W say they do not remember anything, it must be given permission to be read into evidence , must have personal knowledge vs. writing to refresh can be anything, cant be read or introduced into evidence
- [ ] Spousal immunity vs confidential communication- spousal imm. Is only in crim case, includes matters b4 marriage, after divorce can testify to matter b4 and during, is a priv in fed court, can’t be stopped from testifying…….confidential in crim and civ, need to be intended to be confidential, don’t go to things b4 marriage, if divorced can’t talk about matters learned before marriage, either spouse have privilege, Declrant is unavailable
- [ ] What is the difference between a party opponent statement or. statement against interest- see if the declarant (person who said it) is unavailable or not (not available then
- [ ] Physical condition vs. medical diagnosis- medical diagnosis is to a treating doctor or nurse for purpose of treating injury (when injury happened)
-State of mind statements are statements by the declarant about his/her state of mind, INTENT, BIAS/ATTITUDE, KNOWLEDGE, EMOTION, REASON/MOTIVE or physical condition, and may be used substantively to prove the existence of the condition, and to prove conduct consistent with the condition. exception to the hearsay rule.
VS
statement of memory or belief ( remembered or believed D said said) not admissible
- [ ] Habit vs routine practice …the action have to be specfic and happen all the time
A person regular response to a specfic set of circumstances. Relevant habit evidence is admissible to prove the person’s conduct was in conformity with the habit. - [ ] Bias vs motive= motive is when you have a need or desire to do something because you have a interest in the outcome….bias is your feelings towards a person neg or pos.
-Felony’s, misdemeanors, bad acts
Conviction? Crime of dishonesty? Violate 403? Remote?
Felony’s (ct can intervene)
all bears on truthfulness which targets creditability perfect when facts say there are no eyewitnesses to the altercation
Generally, a witness can be impeached with a conviction for a felony ofany crime felony don’t need toinvolve dishonesty or false statement. However
1. the court may exclude it under the rule 403 balancing test “ if the probation value substantially outweigh prejudice. the factors that the court look to is unfairly prejudicial such that it shocks the conscious, confusion of the issues, misleading the jury, waste or undue delay, needless presentation of cumulative evidence)
* if not a heinous crime that might inflame jury will be admitted if is a heinous crime, judge can give jury instructions and can limit cross by not asking certain questions. Judge most likely not to allow if eviendece of other convictions is already being admitted.
- convictions can’t be remote. if more than 10 years since conviction or was released (which ever happened last)
Misdemeanor less than a year ( ct can’t intervene so no balancing test)
Generally, a witness may be impeached with any crime involving dishonesty or false statement. The ct have no discreation to exclude convictions for crimes involving dishonesty or false statement
Bad acts ( no conviction
A witness may be cross examined(questioned) as to prior act of misconduct that is probative of truthfulness to attack creditibility. Dishonest behaviors. T can intervene in questions but not with extrinsicevidence. extrinsic evidence can’t be admitted. After the question…. Must accept D’s answer
sexual assault convictions ( are felony’s and follow the same anaysis of 403b test) -
Not related to truthfulness and creditability so not likely to be admitted unless in civ and is an element ; however, the court will consider the 403 balancing test.
This is a heinous crime so court
Will mostly not admit if other convictions or felonys that is being admitted to impeach D’s creditability is being admitted. If not, just can give jury instructions and limit cross questions.
Difference in crim and civ
Character-
Sexual repetition-
In any crim or civ rape case, evidence offered to prove the sexual behavior or sexual disposition of an alleged victim is generally inadmissible. however….. allowed in civ if can pass 403 to either party. (Ie. Victim saying absences)
Civ allowed to prove liability is someone else other than D
presumption and criminal matters
The court must take a presumption and instruct the jury that they may make a presumption, if a party acts the court to do so, because they have sufficient fax that is not subject to question “facts that are generally known in the jurd.
Cant use 5th in civ cases
In Crim cases experts can’t testify to mental state but in civil case they can
-Medi never, offer to compromise in civ never .. offer to compromise in crim?
-Crim- sex history to prove other source of injury …
Civ- ??
other evidence areas
- [ ] 8th amendment cruel and unusual punishment protects against excessive punishment in relation to the committed crime. Cant mpose mandatory life in prison without the possibility of parole on a minor when the crime was committed
- [ ] Double jep. exception attach once the jury is impaneled…exception is if there is a manifest necessity for a mistrial -ie hung jury or misconduct by defendant NOT WHEN A JUDGE CALL MISTRIAL FOR ANY other reason such as personal emergency
- [ ] Burden of persuasion: Preponderance of the evidence(fact is more likely to exist than not), Clear and convincing evidence(highly probable)
Criminal, Beyond a reasonable doubt(“moral certainty”)- [ ] Permissivepresumptions areallowed(i.e. jurycaninfer, but is not required to do so).
Mandatorypresumptions areunconstitutionalbecause theburden of persuasion is shifted to Dinstead of the prosecution (which is required to prove every element beyond a reasonable doubt)
- [ ] Permissivepresumptions areallowed(i.e. jurycaninfer, but is not required to do so).
- [ ] irrebuttablepresumption- Presumption created by statute or common law
