PROCEDURAL CONSIDERATIONS

Question 1

BURDENS OF PROOF

Answer 1

The burden of proof encompasses (1) the burden of
producing or going forward with the evidence and (2) the
burden of persuasion.

Question 2

Burden of Production

Answer 2

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.

Question 3

Burden of Persuasion (Proof)

Answer 3

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.

Question 4

PRELIMINARY QUESTIONS

Answer 4

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.

Question 5

Preliminary Facts Decided by Jury

Answer 5

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.

Question 6

Screened by Judge

Answer 6

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.

Question 7

Preliminary Facts Decided by Judge

Answer 7

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?

Question 8

Judge May Consider All Non-Privileged Evidence

Answer 8

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.

Question 9

Presence of Jury

Answer 9

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.

Question 10

Testimony by Accused Does Not Waive Privilege Against Self-Incrimination

Answer 10

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.

Question 11

JUDICIAL NOTICE

Answer 11

Judicial notice is the recognition of a fact as true without
formal presentation of evidence.

Question 12

Judicial Notice of Fact:Facts Appropriate for Judicial Notice

Answer 12

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.

Question 13

Required on Party’s Request

Answer 13

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.

Question 14

Conclusiveness

Answer 14

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

Question 15

“Adjudicative” and “Legislative” Facts

Answer 15

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.

Question 16

Judicial Notice of Law—Mandatory or Permissive

Answer 16

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.

Question 17

PRESUMPTIONS

Answer 17

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.

Question 18

Common Presumptions

Answer 18

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

Question 19

Effect of Presumption—Shifts Burden of
Production

Answer 19

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

Question 20

Tip

Answer 20

Remember that a presumption does not shift the
burden of persuasion. The burden of persuasion
remains on the same party throughout a trial.

Question 21

Rebutting Presumptions in Civil Cases

Answer 21

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 22

No Mandatory Presumptions in Criminal Cases

Answer 22

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.

Question 23

Tip

Answer 23

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.

Question 24

Distinguish True Presumptions from Inferences and Substantive Law

Answer 24

True presumptions are the rebuttable type discussed above.
Be careful not to confuse them with inferences and rules of
substantive law.

Question 25

Permissible Inferences

Answer 25

A permissible inference may allow the party to meet their
burden of production (establish a prima facie case), but does
not shift the burden to the adversary. Examples include the
inference of negligence arising from res ipsa loquitur, the
inference that destroyed evidence was unfavorable to the
spoliator, the presumption of innocence in a criminal case,
and the inference of undue influence when a will’s drafter is
also the principal beneficiary.

Question 26

Conclusive Presumptions

Answer 26

Because it cannot be rebutted, a conclusive presumption (for
example, that a child under age 7 cannot commit a crime) is
really a rule of substantive law.

Question 27

Conflicting Presumptions

Answer 27

When 2 or more conflicting presumptions arise, the judge
should apply the presumption founded on the weightier
considerations of policy and logic.

Question 28

Choice of Law Regarding Presumptions in Civil Actions

Answer 28

Under the Federal Rules, state law governs the effect of
a presumption concerning a fact that is an element of a
claim or defense to which, under the Erie doctrine, the rule
of decision is supplied by state law. Erie is covered in your
Federal Civil Procedure materials.

Question 29

RULE OF COMPLETENESS

Answer 29

Where 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 ought in
fairness to be considered at the same time.

Question 30

LIMITED ADMISSIBILITY

Answer 30

Evidence may be admissible for one purpose but not another,
or admissible against one party but not another. In these
situations, the court must, upon timely request, restrict the
evidence to its proper scope and instruct the jury accordingly.
This is called a “limiting instruction.” Furthermore, 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 (in other words, the judge may exclude
the evidence if it fails the Rule 403 balancing test).

Question 31

Preserving Claim of Error for Appeal

Answer 31

A party may claim error in the court’s ruling if it affects a
substantial right of the party. If the court admitted evidence,
the party opposing its admission needs to make a timely
objection or move to strike the evidence. If the court
excluded evidence, the proponent of the evidence needs to
inform the court of the evidence’s substance by an offer of
proof, unless its substance was apparent from the context.
Once the court rules definitively on the record (either before
or at trial), the party doesn’t have to renew its objection or
offer of proof to preserve the claim of error for appeal.

Question 32

Timing of Objections

Answer 32

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 an answer emerges as inadmissible. At a deposition,
objections to the form of a 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 33

Tip

Answer 33

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.

Question 34

Specificity of Objections

Answer 34

An objection may be either specific (for example, “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 35

“Opening the Door”

Answer 35

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.

Question 36

Motion to Strike—Unresponsive Answers

Answer 36

If an answer is unresponsive but otherwise admissible, only
examining counsel can move to strike the answer; opposing
counsel cannot.

Question 37

Exceptions

Answer 37

It is not necessary for a party to “except” from a trial ruling in
order to preserve the issue for appeal. This was a common
law rule that has been abolished.

Question 38

Offers of Proof

Answer 38

An offer of proof may be made, disclosing the nature,
purpose, and admissibility of rejected evidence, to persuade
the trial court to hear the evidence and to preserve the
evidence for review on appeal. It may be made by witness
testimony, a lawyer’s description of what the evidence
would have been, or tangible evidence marked and offered.
The court can require the offer of proof to be made in
question-and-answer form (meaning, the lawyer conducts
their examination of the witness so that the judge hears
exactly what the witness would have said in front of the jury).

Question 39

Taking Notice of Plain Error

Answer 39

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

Question 40

Judicial Power to Comment upon Evidence

Answer 40

A judge may comment on the weight of the evidence in
federal courts.

Question 41

Shielding Jury from Inadmissible Evidence

Answer 41

To the extent practicable, the judge must conduct a jury trial
so that inadmissible evidence is not suggested to the jury by
any means.