Presentation of Evidence

Question 1

Bursting Bubble Approach

Civil Cases

Answer 1

“Under the “bursting bubble” approach, a rebuttable presumption “bursts” when the opposing party in a civil case produces sufficient evidence to contradict the presumed fact. The fact finder must then weigh the evidence to decide the issue.”

A presumption is a conclusion that can be drawn once a party proves an underlying fact or set of facts.

Under the “bursting bubble” approach followed by the FRE, the opposing party in a civil suit can overcome a rebuttable presumption by producing sufficient evidence to contradict the presumed fact.*

• (*The bursting-bubble approach does not apply to conclusive presumptions OR in federal diversity cases, where state law governs the effect of a presumption.)

Once this occurs, the presumption “bursts” and the fact finder (here, the jury) must weigh the evidence to decide the issue.

Conversely, if no contrary evidence is introduced, the judge must instruct the jury to accept the presumption.

Question 2

What is a presumption?

Answer 2

A presumption is a conclusion that can be drawn once a party proves an underlying fact or set of facts.

Question 3

Judicial Notice

Answer 3

FRE 201 allows a court to take judicial notice—on its own initiative or upon a party’s request—of any adjudicative factt hat is not subject to reasonable dispute because it:

1) is generally known within the territorial jurisdiction of the trial court OR
2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

In a civil case, the court must instruct the jury that it is required to accept the noticed fact as conclusive.

But in a criminal case, the court should instruct the jury that it may accept the noticed fact as conclusive.

Question 4

What kind of presumption does the destruction of evidence raise?

Answer 4

Generally raises a rebuttable presumption that the evidence would be unfavorable to the destroying party if the other party establishes:

i) destruction was intentional,
ii) evidence is relevant, and
iii) alleged victim acted with due diligence as to the destroyed evidence.

NOTE: a rebuttable presumption shifts the burden of production (not persuasion) to the opposing party.