Procedural Considerations

Question 1

Burdens of Proof

Answer 1

Burden of proof encompasses:
- burden of producing or going forward with the evidence AND
- burden of persuasion

Question 2

Burden of Production

Answer 2

• party who has the burden of pleading usually has burden of producing or going forward w/ ev sufficient to make out a prima facie case (to create a fact question for the trier of fact)
• once party has satisfied burden of production, it is incumbent on other side to come forward with ev to rebut the accepted ev

Question 3

Burden of Persuasion

Answer 3

• after parties have sustained their burden of production of ev, q is whether party w/ burden of persuasion has satisfied it
• burden of persuasion for civil cases = preponderance of the evidence
  -> fraud or oral contract to make a will may have higher burden
• burden of persuasion for crim cases = beyond reasonable doubt

Question 4

Preliminary Questions

Answer 4

• in most cases, existence of some preliminary or foundational fact is an essential condition of admissibility
• fed rules distinguish between prelim facts decided by jury vs by judge

Question 5

Preliminary Facts Decided by Jury

Answer 5

• jury decides certain preliminary facts relating to whether ev is relevant at all

Include:
- whether ev is authentic
- whether a person was acting as a party’s agent in breach of K
- whether witness has personal knowledge of facts in their testimony

• before such q brought before jury, judge must determine there’s sufficient proof to support jury finding that the preliminary fact exists

Question 6

Preliminary Facts Decided by Judge

Answer 6

• facts affecting competency of ev (whether it is admissible under rules of ev) must be determined by trial judge

Includes
- is witness mentally competent to testify
- does privilege exist
- does ev meet reqs of a hearsay exception

Question 7

What can judge consider for prelim fact determinations?

Answer 7

• fed rules permit judge to consider any non-privileged relevant ev when making prelim fact determinations, even if such ev wouldn’t be admissible at trial
  -> i.e. prelim decision NOT bound by rules of ev, except privilege

Question 8

Presence of Jury During Prelim Fact Determination

Answer 8

• whether jury should be excused during prelim fact determination is generally w/in discretion of trial judge
• jury may be excused if:
  1) hearing involves admissibility of confession
  2) def in crim case is testifying at the hearing and requests jury be excused OR
  3) justice so requires

Question 9

Privilege Against Self-Incrim + Prelim Determinations

Answer 9

• accused may testify on any preliminary matter w/o waiving the privilege + subjecting themselves to testifying at trial generally
• testifying about preliminary matter does not subject accused to cross-examination about other issues in the case

Question 10

Judicial Notice - General Concept

Answer 10

• recognition of a fact as true without formal presentation of evidence

Question 11

Facts Appropriate for Judicial Notice

Answer 11

Court may take judicial notice of fact that is “not subject to reasonable dispute” b/c:
- generally known within trial court’s jurisdiction OR
- can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned

• courts often take judicial notice of reliability of well-established scientific tests + principles

Question 12

Judicial Notice - Party Requests

Answer 12

• judicial notice can be taken at any stage of the proceedings
• if a court doesn’t take judicial notice of a fact of its own accord, a party must formally request that notice be taken + provide court w/ necessary info
  -> if party does this, court is required to take judicial notice

Question 13

Judicial Notice - Conclusiveness

Answer 13

• judicially noticed fact is CONCLUSIVE in a CIVIL case but NOT in a criminal case
• civil case -> court must instruct jury to accept the judicially noticed fact as conclusive
• criminal case -> jury is instructed that it may but is not required to accept judicially noticed fact as conclusive

Question 14

Adjudicative and Legislative Facts

Answer 14

• fed rules govern only judicial notice of adjudicative facts
• legislative facts (those relating to legal reasoning and lawmaking), such as reasoning behind spousal privilege, need not be generally known nor capable of indisputable verification to be judicially noticed

Question 15

Judicial Notice of Law - Mandatory or Permissive

Answer 15

• courts MUST take notice of fed + state law and the official regs of the forum state + fed gov
• courts MAY take judicial notice of municipal ordinances + private acts or resolutions of Congress or of local state legislature
• laws of foreign countries may also be judicially noticed

Question 16

Presumptions - Basic Concept

Answer 16

• presumption = rule that requires that a particular inference be drawn from an ascertained set of facts
• a form of substitute proof -> proof of the presumed fact is rendered unnecessary once ev has been introduced of basic fact that gives rise to the presumption

Question 17

Common Rebuttable Presumptions

Answer 17

• mail delivery (letter properly addressed, stamped, + mailed presumed delivered)
• death from 7-year absence
• presumption in civil cases against suicide when cause of death in dispute
• every person presumed legitimate (born to legally married parents)
• every person presumed sane in civ + crim cases until contrary shown
• proof of ownership of motor vehicle creates presumption that owner was driver or driver was owner’s agent
• presumed persons acting in an official capacity are properly performing duties
• every debt is presumed collectible + persons presumed solvent
• proof of existence of person or condition at a given time raises presumption that it continued for as long as it is usual w/ things of that nature
• marriage presumed valid on proof of marriage ceremony
• proof of delivery in good condition to bailee + failure of bailee to return goods in same condition create presumption that bailee negligent

Question 18

Effect of Presumption

Answer 18

• until rebutted, a presumption operates to shift the burden of production to the party against whom the presumption operates
• does not shift burden of persuasion though

Question 19

Rebutting Presumptions in Civil Cases

Answer 19

• presumption overcome or destroyed when adversary produces some ev contradicting the presumed fact
• once sufficient contrary ev is admitted, the presumption is of no force or effect

Question 20

Presumptions + Crim Cases

Answer 20

• NO mandatory presumptions
• judge cannot instruct jury that it must find a presumed fact against the accused
  -> instead, must instruct jury that they may regard basic facts as sufficient evidence of the presumed fact

Question 21

Permissible Inferences

Answer 21

• may allow party to meet their burden of production but does NOT shift burden to adversary (distinguish from presumption)

Question 22

Conclusive Presumption

Answer 22

• cannot be rebutted -> really a rule of substantive law

Question 23

Conflicting Presumptions

Answer 23

• when two or more conflicting presumptions arise, judge should apply the presumption founded on the weightier considerations of policy and logic

Question 24

Choice of Law Regarding Presumptions in Civil Acitons

Answer 24

• under fed rules, state law governs effect of a presumption concerning a fact that is an element of a claim or defense to which under Erie doctrine, rule of decision is supplied by state law

Question 25

Rule of Completeness

Answer 25

• where part or all of a statement is introduced into evidence, adverse party may require proponent of ev to introduce any other part (or any related statement) that ought in fairness to be considered at the same time
• adverse party may do so over a hearsay objection

Question 26

Limited Admissibility

Answer 26

• ev may be admissible for one purpose but not another, or admissible against one party but not another
• in such situations, court must, upon timely request, restrict the ev to its proper scope + instruct jury accordingly (limiting instructions)
• court may exclude the ev entirely if it decides that even with a limiting instruction, the probative value of the ev wrt legit purpose would be substantially outweighed by danger of unfair prejudice wrt incompetent purpose

Question 27

Preserving Claims of Error for Appeal

Answer 27

• party may claim error in court’s ruling if it affects a substantial right of the party
• if court admitted ev, party opposing its admission needs to make a timely objection or move to strike
• if court excluded, proponent of the ev needs to inform court of its substance by an offer of proof, unless substance was apparent from context
• once court rules definitively on the record, the party doesn’t have to renew its objection or offer of proof to preserve claim of error for appeal

Question 28

Timing of Objections

Answer 28

• objections at trial should be made after the q but before answer, if q calls for inadmissible info
• otherwise, motion to strike must be made as soon as an answer emerges as inadmissible
• at a deposition, objections to the form f a q, or to a testimonial privilege, should be made when the q is asked or it may be waived
• objection based on substance of q or answer may be postponed until deposition offered in ev

Question 29

Specificity of Objections

Answer 29

• may be specific or general
• fed rules call for specific unless ground for objection was apparent from context

Question 30

Opening the Door

Answer 30

• party who introduces ev on a particular subject thereby asserts its relevance + cannot complain if their adversary offers ev on same subject

Question 31

Motion to Strike - Unresponsive Answers

Answer 31

• if answer is unresponsive but otherwise admissible, only examining counsel can move to strike answer, opposing counsel can’t

Question 32

Exceptions

Answer 32

• not necessary for a party to except from a trial ruling in order to preserve the issue for appeal

Question 33

Offers of Proof

Answer 33

• may be made, disclosing nature, purpose, and admissibility of rejected ev, to persuade trial court to hear ev + preserve ev for review on appeal
• may be made by witness testimony, lawyer’s description of what the ev would’ve been or tangible ev marked + offered
• court can require offer of proof to be made in question-and-answer form

Question 34

Taking Notice of Error

Answer 34

• court may take notice of a plain error affecting a substantial right, even if claim or error wasn’t properly preserved

Question 35

Judicial Power to Comment on Ev

Answer 35

• judge may comment on weight of ev in fed courts

Question 36

Shielding Jury from Inadmissible Ev

Answer 36

• judge must conduct jury trial so that inadmissible ev is not suggested to the jury by any means