Procedural Considerations

Question 1

What is the burden of production?

Answer 1

The party who has the burden of pleading usually has the burden of producing or going forward with evidence sufficient to make out a prima facie case.

Once the party has satisfied the burden of production, it is the other party’s burden to come forward with evidence to rebut the accepted evidence.

Question 2

(1) What is the burden of persuasion (proof) in civil cases?

(2) What is the burden of persuasion (proof) in criminal cases?

Answer 2

(1) The burden of proof in civil cases, generally, is by a preponderance of the evidence (more likely than not). Some civil cases (such as fraud or an oral contract to make a will) require proof of clear and convincing evidence (high probability).
(2) The burden of proof in criminal cases is beyond a reasonable doubt.

Question 3

What preliminary facts are decided by the jury?

Answer 3

Whether evidence is relevant, subject to a judge’s determination that there is sufficient proof to support a jury finding that the preliminary fact exists.

Question 4

What preliminary facts are decided by the judge?

Answer 4

Facts affecting the competency of the evidence (i.e., whether it is admissible under the rules of evidence)

Question 5

True or false: The Federal Rules permit the trial judge to consider any non-privileged relevant evidence when making a preliminary fact determination, even if such evidence would not be admissible at trial.

Answer 5

True.

Question 6

HYPO: Seeking to introduce former testimony by a lab technician against a defendant in a retrial, the prosecution offers the judge a note from a doctor saying the technician is too sick to travel (and thus “unavailable” to testify).

(1) Who decides admissibility?
(2) May whoever gets to decide admissibility consider the note from the doctor?

Answer 6

(1) The judge

(2) Yes. The judge is not bound by the rules of evidence, except privilege, in any evidentiary competency determination.

Question 7

Whether the jury should be excused during the preliminary fact determination is generally within the discretion of the judge. However, the jury must be excused if:

Answer 7

(1) The hearing involves the admissibility of a confession;
(2) The defendant in a criminal case is testifying at the hearing and requests that the jury be excused; or
(3) Justice so requires

Question 8

True or false: A criminal defendant may testify on any preliminary matter (e.g., circumstances surrounding an allegedly illegal search) without subjecting themselves to testifying at trial.

Answer 8

True

Question 9

True or false: An criminal defendant’s testimony about a preliminary matter subjects the defendant to cross-examination about other issues in the case.

Answer 9

False

Question 10

What is judicial notice?

Answer 10

Recognition of a fact as true without formal presentation of evidence

Question 11

A court may take judicial notice of any fact that is “not subject to reasonable dispute” because:

Answer 11

(1) The fact is generally known within the trial court’s jurisdiction (e.g., that Minneapolis is located in the state of Minnesota), or
(2) The fact can accurately and readily be determined from sources whose accuracy cannot reasonably be questioned (e.g., that October 10, 2017, was a Tuesday)

Question 12

What are the rules governing judicial notice?

Answer 12

(1) Judicial notice can be taken at any stage of the proceedings (including for the first time on appeal)
(2) If a court does not take judicial notice of a fact on its own accord, a party must formally request that notice be taken and provide the court with necessary information
(3) If a party requests judicial notice and provides necessary information, the court is required to take judicial notice of the fact (i.e., the court has no discretion on this determination)

Question 13

A judicially noticed fact is [conclusive / not conclusive] in a civil case, and [conclusive / not conclusive] in a criminal case.

Answer 13

Conclusive in civil cases, not conclusive in criminal cases

Question 14

What is the difference between “adjudicative” and “legislative” facts in the context of judicial notice?

Answer 14

“Adjudicative” facts are those that relate to the particular case. “Legislative” facts are those relating to legal reasoning and lawmaking.

The Federal Rules regarding judicial notice apply only to adjudicative facts. Legislative facts may be judicially noticed even if they are not generally known or capable of indisputable verification.

Question 15

True or false: Courts MUST take judicial notice of federal and state law and the official regulations of the forum state and the federal government.

Answer 15

True

Question 16

True or false: Courts MUST take judicial notice of municipal ordinances, private acts or resolutions of Congress or of the local state legislature, and foreign laws.

Answer 16

False. Courts MAY take notice of these facts, but are not required to do so.

Question 17

Explain the rebuttable presumption regarding mail delivery.

Answer 17

A letter, properly addressed, stamped, and mailed, is presumed to have been delivered.

Question 18

Explain the rebuttable presumption regarding death from 7-year absence.

Answer 18

If a person is inexplicably absent for a continuous period of 7 years and they have not been heard from, they are presumed dead.

Question 19

Explain the rebuttable presumption against suicide.

Answer 19

When cause of death is in dispute in a civil case, there is a presumption that it was not suicide.

Question 20

Explain the rebuttable presumption regarding legitimacy.

Answer 20

Every person is presumed to be legitimate (meaning, born to legally married parents).

Question 21

Explain the rebuttable presumption regarding sanity.

Answer 21

Every person is presumed sane in civil and criminal cases until the contrary is shown.

Question 22

Explain the rebuttable presumption regarding ownership of a car.

Answer 22

Proof of ownership of a motor vehicle creates the presumption that the owner was the driver or that the driver was the owner’s agent.

Question 23

Explain the rebuttable presumption regarding chastity.

Answer 23

Every person is presumed chaste and virtuous.

Question 24

Explain the rebuttable presumption regarding regularity.

Answer 24

It is presumed that persons acting in an official office are properly performing their duties.

Question 25

Explain the rebuttable presumption regarding continuance.

Answer 25

Proof of the existence of a person or condition at a given time raises a presumption that it continued for as long as it is usual with things of that nature.

Question 26

Explain the rebuttable presumption regarding solvency.

Answer 26

A person is presumed solvent, and every debt is presumed collectible.

Question 27

Explain the rebuttable presumption regarding a bailee’s negligence.

Answer 27

Proof of delivery of goods in good condition to a bailee and failure of the bailee to return the goods in the same condition create the presumption that the bailee was negligent.

Question 28

Explain the rebuttable presumption regarding marriage.

Answer 28

Upon proof of a marriage ceremony, a marriage is presumed valid.

Question 29

What is the effect of a presumption?

Answer 29

Until rebutted, a presumption operates to shift the burden of production to the party against whom the presumption operates.

Question 30

How many a presumption be defeated?

Answer 30

A presumption is overcome or destroyed when the adversary produces some evidence contradicting the presumed fact. Once sufficient contrary evidence is admitted, the presumption is of no force or effect.

Question 31

What special considerations apply in criminal cases regarding presumptions?

Answer 31

A judge cannot instruct the jury that it MUST find a presumed fact against the accused. The judge must instruct the jury that it MAY regard the basic facts as sufficient evidence of the presumed fact.

Question 32

Explain the rule of completeness.

Answer 32

When part or all of a writing or recorded statement is introduced into evidence, the adverse party may require the proponent of the evidence to introduce any other part—or any related writing or recorded statement—that should be considered at the same time for the sake of fairness.

Question 33

In a situation where evidence may be admissible for one purpose but not another, what should the court do?

Answer 33

The court must, upon timely request, restrict the evidence to its proper scope and instruct the jury accordingly (i.e., issue a limiting instruction).

The court may exclude the evidence entirely if it determines that, even with a limiting instruction, the probative value of the evidence with respect to its legitimate purpose would be substantially outweighed by danger of unfair prejudice with respect to its incompetent purpose.

Question 34

How should a party preserve a claim of error for appeal in the case of improperly admitted or excluded evidence?

Answer 34

(1) The party opposing its admission or exclusion must make a timely objection or move to strike the evidence
(2) If the court excluded evidence, the proponent of the evidence must inform the court of the evidence’s substance by an offer of proof, unless its substance was apparent from the context
(3) Once the court rules definitively on the record, the objecting party does not have to renew its objection to preserve the claim of error

Question 35

What is the appropriate timing of objections at trial?

Answer 35

Objections at trial should be made after the question, but before the answer, if the question calls for inadmissible information. Otherwise, a motion to strike must be made as soon as the answer emerges as inadmissible.

Question 36

What is the appropriate timing of objections at a deposition, or to deposition testimony?

Answer 36

At a deposition, objections to the form of question or to a testimonial privilege should be made when the question is asked or it may be waived.

Objections based on the substance of a question or answer may be postponed until the deposition is offered in evidence.

Question 37

What is the consequence of failure to timely object?

Answer 37

Failure to object is deemed a waiver of any ground for objection. In other words, if no objection is made, otherwise inadmissible evidence will be admitted, and the admission of the evidence cannot be appealed.

Question 38

How specific must objections be?

Answer 38

An objection may be either specific (“Objection, hearsay”) or general (“I object”). The Federal Rules call for a specific objection unless the ground for the objection was apparent from the context.

Question 39

True or false: A party who introduces evidence on a particular subject thereby asserts its relevance and cannot complain if their adversary offers evidence on the same subject.

Answer 39

True

Question 40

Who may make a motion to strike in the event of an unresponsive answer?

Answer 40

If an answer is unresponsive but otherwise admissible, only examining counsel can move to strike the answer.

Question 41

True or false: The court may take notice of a plain error affecting a substantial right of a party, even if the claim of error wasn’t properly preserved.

Answer 41

True

Question 42

True or false: A judge may comment on the weight of the evidence in federal courts.

Answer 42

True