Pressumptions - 301 Flashcards
Who has the burden of going fwd in a cse or producing evidence?
- Civil
- plaintiff has burden b/c moving pty
- Criminal
- Prosecution has burden b/c moving pty
EXAMPLE: In a negligence case, Plaintiff establishes duty, breach, and causation, but fails to prove the element of damages. Plaintiff did not meet his burden of production.
What is the burden of persuasion?
- goes to the question of how much - the degree to which the evidence must be proven
- there are three levels of persuasion
What are the levels of burden of persuasion?
- Preponderence of the evidence
- tradtional civl standard
- motion to supress in criminal cases or voluntariliness of a confession
- Clear & convincing
- reserved for a criminal related civil case
- i.e. - fraud, validity for a will or deed
- affirmative defense standard for insanity
- Beyond a reasonable doubt
- typical criminal standard
How do you shift the burden of production?
-
Affirmative defneses
- EXAMPLE: Statute of limitation; establishing jurisdiction, Rule 12b6, self defense, laches.
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Pressumptions
- conclusions made as to the existence or non-existence of a fact that must be drawn from other evidence that is admitted & proven to be true
How do pressumptions function?
- they function as a shortcut in evidence
- Arises when:
- one set of facts are offered by a proponent that
- gives rise to another set of facts, pressumed facts, absent a contrary showing
- the opponent has to present sufficient evidence that the pressumed facts are not true thus bursting the bubble of the pressumption
Examples of rebuttable pressumptions.
EXAMPLE: If someone has been missing for seven years, it’s presumed that they’re dead.
EXAMPLE: A child born of a husband and wife living together is presumed to be theirs. However, DNA could be used to rebut.
EXAMPLE: If a party can prove that a letter was mailed, the court will allow the jury to presume that it was received.
EXAMPLE: If a party says he mailed a letter, but the opponent claims he never received the letter, the opponent can rebut the presumption that a letter mailed has been received. Then the proponent has not conclusively proved that fact.
Are there presummptions in criminal cases?
- rare & disfavored in criminal cases
- if they are not rebutted, results in a judgment as a matter of law violating due process; being unconstitutional
- thus no pressumptions in criminal cases
When are pressumptions irrebuttable?
- when they are created by statute or common law
EXAMPLE: In a negligence action, if the defendant is age seven, some states have statutes that say a child aged seven or below is incapable of negligence. As a matter of law, there is an irrebuttable presumption that no matter how mature the seven-year-old is, there can be no finding of negligence.
Recap: 1. What is judicial notice?
A substitute for proof where the cts accepts certain adjudicated facts as true w/o requiring formal presentation
Recap: 2. Does a civil jury have to accept a judicially noticed fact as conclusive? A criminal jury?
- Yes a civil jury must accept judicially noticed facts as conclusive/true
- No, a criminal jury may but is not required to accept judicially noticed facts as conclusive/true
Recap: 3. What are the three levels of burden of persuasion, and when are they applied?
- Preponderance of the evidence – traditionally civil;
- also in some criminal like motion to surpress & voluntariness of a confession
- Clear & convincing - criminally related civil cases
- i.e. - fraud, validity of a will or deed, affirmative defense like insanity
- Beyond a reasonable doubt – typically criminal
