PROCEDURAL CONSIDERATIONS Flashcards
BURDENS OF PROOF
The burden of proof encompasses (1) the burden of
producing or going forward with the evidence and (2) the
burden of persuasion.
Burden of Production
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 (that is, create a fact
question of the issue for the trier of fact). This is known as the
burden of production, or the burden of producing evidence,
or the burden of going forward with evidence. Once the party
has satisfied the burden of production, it is incumbent upon
the other side to come forward with evidence to rebut the
accepted evidence.
Burden of Persuasion (Proof)
After the parties have sustained their burden of production of
evidence, the question is whether the party with the burden
of persuasion has satisfied it. The burden of persuasion for
civil cases is usually by a preponderance of the evidence
(more probably true than not true), although some civil cases
(such as fraud or an oral contract to make a will) require
proof of clear and convincing evidence (high probability). The
burden of persuasion for criminal cases is beyond a reasonable
doubt.
PRELIMINARY QUESTIONS
In most cases, the existence of some preliminary or foundational
fact is an essential condition of admissibility. For
example, for a statement to be admitted under a hearsay
exception, it must be determined whether the requirements
of the exception are satisfied based on the surrounding
facts (for example, did the declarant actually believe their
death was imminent when they made their supposed dying
declaration?). The Federal Rules distinguish preliminary facts to be decided
by the jury from those to be decided by the judge.
Preliminary Facts Decided by Jury
The jury decides certain preliminary facts relating to whether
evidence is relevant at all. For example, before a purported
telephone conversation between the plaintiff and the defendant
is admitted into evidence, the identity of one of the
speakers on the call might need to be verified—otherwise,
the conversation would be irrelevant. Some preliminary
facts to be decided by the jury include whether evidence is
authentic, whether a person was acting as a party’s agent
in a breach of contract case, and whether a witness has
personal knowledge of the facts of their testimony.
Screened by Judge
Before such a question is brought before the jury, the judge
must determine that there is sufficient proof to support a
jury finding that the preliminary fact exists.
Preliminary Facts Decided by Judge
Facts affecting the competency of the evidence (meaning,
whether it is admissible under the rules of evidence) must be
determined by the trial judge. For example, the judge decides:
* Is a witness mentally competent to testify?
* Does a privilege exist?
* Does the evidence meet the requirements of a hearsay
exception?
Judge May Consider All Non-Privileged Evidence
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. In other words, the judge is not bound
by the rules of evidence, except privilege. The judge can
consider hearsay evidence, unauthenticated evidence, and
so on. Remember, this evidence isn’t necessarily being introduced
at trial; the judge is simply considering it to determine
if other evidence should be admitted at trial.
Presence of Jury
Whether the jury should be excused during the preliminary
fact determination is generally within the discretion of the
trial judge. However, the jury must be excused if: (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.
Testimony by Accused Does Not Waive Privilege Against Self-Incrimination
An accused may testify on any preliminary matter (for
example, circumstances surrounding an allegedly illegal
search) without subjecting themselves to testifying at trial
generally. Furthermore, testifying about the preliminary
matter does not subject the accused to cross-examination
about other issues in the case.
JUDICIAL NOTICE
Judicial notice is the recognition of a fact as true without
formal presentation of evidence.
Judicial Notice of Fact:Facts Appropriate for Judicial Notice
A court may take judicial notice of any fact that is “not subject
to reasonable dispute” because:
* The fact is generally known within the trial court’s jurisdiction
(for example, New York City is located in the State
of New York), or
* The fact can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned
(for example, October 10, 2017, was a Tuesday).
Courts often take judicial notice of the reliability of well-established
scientific tests and principles (such as radar speed
tests, ballistics tests, and paternity blood tests) as a type of
“generally known” fact. The court will admit these test results
into evidence upon a showing that the test was properly
conducted.
Required on Party’s Request
Judicial notice can be taken at any stage of the proceedings
(and can even be taken for the first time on appeal). 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 the necessary information. If the party does
this, the court is required to take judicial notice of the fact.
Conclusiveness
A judicially noticed fact is conclusive in a civil case but not in
a criminal case. In other words, in a civil case, the court must
instruct the jury to accept the judicially noticed fact as conclusive.
In a criminal case, the jury is instructed that it may, but is
not required to, accept the judicially noticed fact as conclusive
“Adjudicative” and “Legislative” Facts
The Federal Rules, and thus their requirements, govern only
judicial notice of “adjudicative” facts (meaning, those that
relate to the particular case). “Legislative” facts (meaning,
those relating to legal reasoning and lawmaking), such as the
rationale behind the spousal privilege, need not be generally
known nor capable of indisputable verification to be judicially
noticed.
Judicial Notice of Law—Mandatory or Permissive
Courts must take judicial notice of federal and state law and
the official regulations of the forum state and the federal
government. Courts may take judicial notice of municipal
ordinances and private acts or resolutions of Congress or of
the local state legislature. Laws of foreign countries may also
be judicially noticed.
PRESUMPTIONS
A presumption is a rule that requires that a particular inference
be drawn from an ascertained set of facts. It is a for
of substitute proof, because proof of the presumed fact is
rendered unnecessary once evidence has been introduced
of the basic fact that gives rise to the presumption.
Common Presumptions
Below are some common rebuttable presumptions:
a. Mail Delivery
A letter, properly addressed, stamped, and mailed, is
presumed to have been delivered.
b. Death from 7-Year Absence
If a person is inexplicably absent for a continuous period of 7
years and they have not been heard from, they are presumed
dead.
c. Against Suicide
When cause of death is in dispute, there is a presumption in
civil cases that it was not suicide.
d. Legitimacy
Every person is presumed to be legitimate (meaning, born to
legally married parents).
e. Sanity
Every person is presumed sane in civil and criminal cases
until the contrary is shown.
f. Ownership of Car—Agent Driver
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.
g. Chastity
Every person is presumed chaste and virtuous.
h. Regularity
It is presumed that persons acting in an official office are
properly performing their duties.
i. Continuance
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.
j. Solvency
A person is presumed solvent, and every debt is presumed
collectible.
k. Bailee’s Negligence
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.
l. Marriage
Upon proof of a marriage ceremony, a marriage is presumed valid
Effect of Presumption—Shifts Burden of
Production
Until rebutted, a presumption operates to shift the burden
of production to the party against whom the presumption
operates.
Tip
Remember that a presumption does not shift the
burden of persuasion. The burden of persuasion
remains on the same party throughout a trial.
Rebutting Presumptions in Civil Cases
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.
No Mandatory Presumptions in Criminal Cases
Special considerations apply when true presumptions arise
in the criminal context. The judge cannot instruct the jury that
it must find a presumed fact against the accused; the judge
must instruct them that they may regard the basic facts as
sufficient evidence of the presumed fact.
Tip
In a criminal case, if a presumed fact establishes
guilt, is an element of the offense, or negates a
defense, it must be proved beyond a reasonable
doubt.
Distinguish True Presumptions from Inferences and Substantive Law
True presumptions are the rebuttable type discussed above.
Be careful not to confuse them with inferences and rules of
substantive law.
