Misc. Flashcards
Facts Appropriate for Judicial Notice
indisputable facts that are either 1) matters of common knowledge in the community (notorious facts) or 2) capable of verification by easily accessible sources of unquestioned accuracy (manifest facts).
sometimes, scientific principles
Judicial Notice - when taken and effect
May be taken at any time, with or without request by a party.
MAY be taken for the first time on appeal.
Conclusive in a civil case (jury MUST take it as true) but NOT in a criminal case.
“adjudicative” vs. “legislative” fact
federal rules govern only judicial notice of “adjudicative” facts (those that relate to the particular case) and NOT legislative facts (those that relate to legal reasoning/lawmaking).
e.g. Rationale behind legal rule such as spousal privilege may be judicially noticed w/o being notorious or manifest fact.
In fact, courts MUST take judicial notice of federal and state law and MAY take notice of municipal law and resolutions of legislative bodies.
Real Evidence
demonstrative evidence - physical evidence addressed directly to trier of fact.
must be authenticated either through 1) testimony that witness recognizes object as what proponent claims it is or 2) that object has been held in a substantially unbroken chain of possession
If condition is significant, must be in substantially the same condition
Current Privileges recognized by Federal Courts
- attorney/client
- spousal communications
- psychotherapist or social worker/client
Exclusion or Sequestration of Witnesses
trial judge will order witnesses excluded from courtroom upon party’s request or on his own motion.
MAY NOT EXCLUDE: 1) a party or designated officer of a party, 2) person whose presence is essential to presentation of party’s claim or defense, or 3) person statutorily authorized to be present.
Burden of Proof - two parts
Burden of Producing Evidence
Burden of Persuasion (proof)
Burden of Producing Evidence
party who has burden of pleading usually has burden of producing sufficient evidence to make a prima facie case. Once satisfied, other side must rebut.
Burden of Persuasion (Proof)
The level to which the evidence presented must persuade the trier of fact - civil, usually POTE (more probable than not) or CCE (high probability); criminal, BARD.
Presumptions
a rule that requires a particular inference be drawn from an ascertained set of facts.
it is a form of SUBSTITUTE PROOF, proof of presumed fact rendered unnecessary once evidence of basic facts that give rise to the presumption have been shown.
Shifts burden of production (NOT burden of persuasion) to party against whom presumption operates.
Destroyed/Rebutted when adversary produces SOME evidence contradicting the presumed fact.
DIFFERENT than permissible inferences, including “presumption of innocence.” Res Ipsa Loquitur is a PERMISSIBLE inference
Common “true” rebuttable presumptions
1) every person presumed legitimate
2) presumption in civil cases that cause of death (when in dispute) was not suicide
3) presumed sane
4) If person unexplainably absent for 7 continuous years, presumed dead
5) owner of car presumed to be driver or that driver was owner’s agent
6) Every person presumed chaste and virtuous
7) A letter, properly addressed, stamped and mailed, is presumed to have been delivered
8) person is presumed solvent
Privileges - Procedure
In federal court action arising under FEDERAL substantive law: “privileges are governed by the common law as they may be interpreted by the federal courts in light of reason and experience.”
In federal court action arising under DIVERSITY jdx, where state substantive law applies, the federal court must apply STATE privilege law.
Three areas where STATE law applies in federal courts in DIVERSITY actions
- privileges.
- state law on competency
- state law on burden of proof and presumptions
Attorney-Client Privilege
Privileges applies to
- confidential
- communications
- between attorney and client (or representative of either)
- made for the primary purpose of obtaining legal advice/rendering legal services.
unless the privilege is waived by client or if an exception applies.
Waiver of Attorney-Client Privilege
Voluntary Waiver: Only the CLIENT has power to waive. Privilege survives client’s death.
Subject Matter Waiver: voluntary waiver as to SOME communications will ALSO waive the privilege as to OTHER communications IF:
- partial disclosure is intentional
- disclosed/undisclosed info concerns same sbjt matter
- fairness requires that disclosed/undisclosed info be considered together.
INADVERTENT Waiver: will not waive the privilege so long as the privilege holder 1) took reasonable steps to PREVENT disclosure and 2) takes reasonable steps to CORRECT the error.
