Procedural Considerations Flashcards
Burdens of Proof
Ecompasses:
1) Burden of producing or going forward with evidence And
2) Burden of persuasion
Burden of Production
Usually, party who has burden of pleading. Must be sufficient to make a PF case.
Once satisfied, otherside must come forward with evidence to rebut
Burden of Persuasion
After burden of production of evidence, question is whether the party with the burden of persuasion has satisfied it.
In civil cases: usually preponderance of evidence. SOmetimes clear and convincing
In crim cases: beyond a reasonable doubt.
Preliminatry Questions
In most cases, the existence of some preliminary or foundational fact is an essential condition of admissibility.
Federal rules distinguish prelim facts to be decided by the jury from those to be decided by the judge
Prelim Facts decided by Jury
Jury Decides issues affecting RELEVANCE
Judge first determines that htere is sufficient proof to support a jury finding that the fact exists
Prelim Facts decided by judge
Judge decides whether evidence is admissible.
May consider all NON-PRIVLEGED evidence. (t/f not bound by rules of evidence, except privlege).
Jury must be excused if:
1) Hearing invovled whether confession is admissible
2) D in crim case is testifying at hearing and reqs jury be excused
3) Justice requires (discretion)
Testimony by Accused and privlege against self-incrim
DOES NOT WAIVE. May testify on any prelim matter without subjecting themselves to testifying at trial generally.
Testifying about prelim matter doesn’t subject the accused to CEX about other issues in the case
Judicial NOtice generally
Court’s ability to recognize a fact is true without formal presentation of evidence
Mandatory if party formally requests it and provides necessary info. Can be taken at any stage.
For Jury, Conclusive in a civil case, but NOT in a criminal case.
Judicial Notice: Appropriate Facts
Facts not subject to reasonable dispute because:
1) Generally known within trial court’s jurisdiction, OR
2) Can be accurately and readily determine from sources that cannot reasonably be questioned
Judicial Notice: Adjudicative vs. Legislative Facts
Federal Rules distinguish. Fedearl rules govern ONLY judicial notice of ADJUDICATE facts.
Adjudicative = relates to particular case.
Legislative = those relating to leagal reasoning and law making.
Judicial NOtice of Law
Courts MUST take judicial notice of fed and state law and the official regulations of the forum state and fed gov.
Courts MAY take JN of:
- municipal ordinances and private acts or resolutions of Congress or of the local state legislature.
-laws of foreign countries
Rule of Completeness
Where part or all of writing or recorded statement is admitted, adverse party may require proponent to introduce any other party, or any related writing or recorded statement, that ought in fairness to be considered at the same time
Limited Admissibility
Evidence may be admissible on one basis, but not another.
If evidence is admissible on a limited basis, judge must–upon timely request– issue limiting instruction
Judge may exlcude evidence entirely under 403
