procedural considerations Flashcards
burden of production
party who has burden of pleading usually has burden of producing or going forward with evidence sufficient to make a prima facie case
burden of persuasion (proof)
civil cases - prepon of evidence
crim cases - beyond a reasonable doubt
preliminary facts decided by jury
jury decides prelim questions like whether ev is relevant at all
before jury decides tho - screened by judge (is there sufficient proof to support a jury finding that the preliminary fact exists)
prelim facts decided by judge
competency of evidence - is witness mentally competent to testify? does privilege exist? does ev meet requirements of hearsay exception
** judge can consider all evidence except privileged evidence
presence of jury
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.
common presumptions
inferences required to be drawn from ascertained facts
common rebuttable presumptions:
mail delivery
death from 7 year absence
against suicide
legitimacy (born to legally married parents)
sanity
ownership of car - agent driver
chastity
regularity (someone in official office is properly performing duties)
continuance - proof of existence or person or condition at given time
solvency
bailee’s negligence (goods given to bailee then failure to return them in same condition)
marriage
testimony by accused doesnt waive privilege of self incrim
what the question says.
rule of completeness
where part or all of a statement is introduced into evidence, the adverse party may require the proponent to introduce any other part or related statemetn that ought in fairness to be considered at the same time - can do so over hearsay objection
distinguish true presumptions from inferences and substantive law
see cmr page 98
limited admissibility
evidence admissible for 1 purpose but not another - court must upon timely request give limiting instrutions by restricting the ev to its proper scope and instructing the jury accordingly
preserving claim of error for appeal
1) If the court admitted evidence, the party opposing its admission needs to make a timely objection or move to strike the evidence.
2) 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.
timing of objections
failure to object is deemed a waiver of any ground for objection
more info on cmr 99 -100
can judge comment on evidence
yes can comment upon weight of evidence in fed courts
should judge shield jury from inadmissible evidence
yes - to extent practicable, judge must conduct a jury trial so that inadmissible ev is not suggested to jury by any means
