Procedural Considerations

Question 1

Burdens of Proof

Answer 1

1. Burden of production: the party who has the burden of pleading must produce sufficient evidence to create a fact question (prima facie case)
2. Burden of persuasion (proof)
   -Preponderance of the evidence (civil)
   -Beyond a reasonable doubt (criminal)

Question 2

Preliminary Questions

Answer 2

Decided by jury: certain preliminary facts relating to whether evidence is relevant at all (authentication, agency, personal knowledge)
-Before a factual question is brought to a jury, a judge must determine there is sufficient proof to support a jury finding

Decided by judge: facts affecting whether evidence is admissible (all non privileged evidence allowed in factual determination)
-Mental competency
-Privilege
-Hearsay exceptions

Presence of a jury is within the discretion of a judge exception when:
1. Hearing involves admissibility of confession
2. Criminal defendant testifying requests that the jury is excused
3. Justice requires

Question 3

Judicial Notice

Answer 3

Judicial notice is the recognition of a fact as true without formal presentation of evidence
-Generally known facts (i.e., reliability of well-established scientific tests and principles_)
-Facts that can be accurately and readily determined (i.e., dates)
-If a court doesn’t take notice of a fact on its own accord, a party must formally request it

Criminal case: jury is instructed that it MAY, but is not required to, accept judicially noticed fact as conclusive

Civil case: jury is instructed that it MUST accept judicially noticed fact as conclusive

Question 4

Presumptions

Answer 4

A presumption is a rule that requires that a particular inference be drawn from an ascertained set of facts (shifts burden of production until rebutted)

Common presumptions:
-Mail delivery
-Death from 7-year absence
-Against suicide
-Legitimacy
-Sanity
-Ownership of car-agent driver
-Chastity
-Official duties
-Continuance
-Solvency
-Bailee’s negligence in condition of goods
-Valid marriage

Question 5

Rule of Completeness

Answer 5

Where part or all of a writing or recorded statement is introduced into evidence, the adverse party may require the introduction of any other party that ought to be considered for fairness

Question 6

Limited Admissibility/Limiting Instruction

Answer 6

Evidence that is admissible for one purpose but not another, or admissible against one party but not another, must be admitted upon timely request in a manner that restricts the evidence to its proper scope