Procedural considerations

Question 1

Burden of production

Answer 1

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 - create a fact question of the issue

Once 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 2

Burden of persuasion

Answer 2

Proof

After the parties have sustained their burden of production of evidence, need to meet burden of persuasion

Civil - usually by a preponderance of the evidence (more probably true than not)

Some civil cases (such as fraud or an oral contract to make a will) require proof of clear and convincing evidence (high probability)

Criminal - beyond a reasonable doubt

Question 3

Preliminary questions generally

Answer 3

In most cases, the existence of some preliminary or foundational fact is an essential condition of admissibility

Federal rules distinguishes preliminary facts to be decided by the jury from those to be decided by the judge

Question 4

Preliminary facts decided by the jury

Answer 4

The jury decides preliminary facts relating to whether evidence is relevant at all

Some preliminary facts to be decided by the jury:
- whether evidence is authentic
- whether a person was acting as a party’s agent in a breach of contract case
- whether a witness has personal knowledge of the facts of their testimony

Screened by judge

Question 5

Preliminary facts for jury - screened by judge

Answer 5

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 6

Preliminary facts decided by a judge

Answer 6

Facts affecting the competency of the evidence (meaning whether it is admissible under the rules), must be determined by the judge

Judge decides
- is a witness mentally competent to testify
- does a privilege exist
- does the evidence meet the requirements of a hearsay exception

Question 7

What evidence judge can consider when making preliminary fact decisions

Answer 7

The trial judge can consider any non-privileged relevant evidence when making a preliminary fact determination, even if such evidence would not be admissible at trial
- judge is not bound by the rules of evidence, except privilege

Question 8

Preliminary fact determinations by judge - presence of jury

Answer 8

Whether the jury should be excused during the preliminary fact determination is generally within the discretion of the trial judge

Must be excused if
- the hearing involves the admissibility of a confession
- the defendant in a criminal case is testifying at the hearing and requests that the jury be excused, or
- justice so requires

Question 9

Accused testifying on preliminary matter

Answer 9

An accused may testify on any preliminary matter without subjecting themselves to testifying at trial generally

Testifying about preliminary matter does not subject the accused to cross-examination about other issues in the case

Question 10

Judicial notice

Answer 10

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

A court can 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, or
- the fact can be accurately and readily determined from sources whose accuracy cannot reasonably be questions

Question 11

Judicial notice - scientific tests and principles

Answer 11

Courts often take the judicial notice of the reliability of well-established scientific tests and principles as a type of generally known fact

Court will admit these test results into evidence upon a showing that the test was properly conducted

Question 12

Judicial notice and party’s request

Answer 12

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 bet taken and provide the court with the necessary information
- if does this, required to take judicial notice of the fact

Question 13

Judicial notice - conclusiveness

Answer 13

A judicially noticed fact is conclusive in a civil case
- court must instruct the jury to accept the judicially noticed fact as conclusive

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

Question 14

Adjudicative and legislative facts - judicial notice

Answer 14

Federal rules govern only judicial notice of adjudicative facts - those that relate to the particular case

Legislative facts - those related to legal reasoning and lawmaking - do not need to be generally known nor capable of indisputable verification to be judicially noticed
- like the rationale behind the spousal privilege

Question 15

Judicial notice of law - mandatory or permissive

Answer 15

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 16

Presumptions

Answer 16

A presumption is a rule that requires that a particular inference be drawn from an ascertained set of facts

Substituted proof - proof of presumed fact is unnecessary once evidence has been introduced of the basic fact that gives rise to the presumption

Question 17

Mail delivery - presumption

Answer 17

A letter, properly addressed, stamped and mailed is presumed to have been delivered

Question 18

Death from 7-year absence - presumption

Answer 18

If a person is inexplicably absent for a continuous period of 7 years and they have not been heard from, presumed dead

Question 19

Ownership of a car - presumption

Answer 19

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

Question 20

Official office and duties - presumption

Answer 20

It is presumed that persons acting in an official office are properly performing their duties

Question 21

Bailee’s negligence - presumption

Answer 21

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

Question 22

Effect of presumption

Answer 22

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

Presumption does not shift the burden of persuasion
- remains on the same party throughout trial

Question 23

Rebutting presumptions in civil cases

Answer 23

Overcome or destroyed when adversary produces some evidence contradicting the presumed fact

Once sufficient contrary evidence is admitted, the presumption is of no force or effect

Question 24

Presumptions in criminal cases

Answer 24

Special considerations apply when true presumptions arise in the criminal context

Judge cannot instruct the jury that it must find a presumed fact against the accused - judge must instruct them that they may regard the basic facts as sufficient evidence of the presumed fact

Question 25

Presumptions vs inferences

Answer 25

True presumptions are different than inferences

A permissible inference may allow the party to meet their burden of production, but does not shift the burden to the adversary
- inference of negligence from res ipsa
- inference that destroyed evidence was unfavorable

Question 26

Rule of completeness

Answer 26

Where part or all of a statement is introduced into evidence, the adverse party may require the proponent of the evidence to introduce any other party - or any related statement - that ought in fairness to be considered at the same time

May do so over a hearsay objection

Question 27

Limited admissibility of evidence

Answer 27

Evidence may be admissible for one purpose but not another, or admissible against one party but not the other

The court must, upon timely request, restrict the evidence to its proper scope and instruct the jury accordingly - limiting instruction

And court can always exclude if even with limiting instruction, the 493 balancing test

Question 28

Preserving claim of error for appeal

Answer 28

Party may claim error in the court’s ruling if it affects a substantial right of the party

If admitted evidence, party opposing it needs to make a timely objection or move to strike it

If excluded evidence, proponent needs to inform the court of the evidence’s substance by an offer of proof
- unless its substance was apparent from the context

If no objection is made, otherwise inadmissible evidence will be admitted

Question 29

Objections - motion to strike for unresponsive answer

Answer 29

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

Question 30

Court taking notice of plain error

Answer 30

Appellate 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 31

Judge comment on weight of evidence

Answer 31

Judge may comment on the weight of the evidence in federal courts

Question 32

Shielding jury from inadmissible evidence

Answer 32

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