Procedural Considerations

Question 1

Burden of Producing Evidence

Answer 1

= burden of introducing sufficient evidence to avoid judgment as a matter of law

(create fact question of issue involved –> can proceed to jury) equal in minds of jury –> lose

Question 2

Judicial notice:

What must judge take notice of?

Answer 2

Federal public law (const, fed treaties) State public claw Official regulations

Question 3

Judicial notice:

What may judge take notice of?

Answer 3

IF given sufficient info: Municipal ordinances Private acts Resolutions of C/local state legislature Laws of foreign countries

Question 4

When may court take judicial notice?

Answer 4

May take on its own accord. If does not –> party can request that notice be taken.

Question 5

Judicial notice on appeal:

For first time?

Answer 5

Reviewing ct MAY take judicial notice of fact on appeal for first time.

Question 6

Judicial notice on appeal:

Of matters of which trial court took judicial notice?

Answer 6

Yes-

MUST take judicial notice on appeal of any matter that trial court properly noticed

Question 7

Effect of judicial notice?

(Crim vs. civil)

Answer 7

–> Proof of the prsumed fact is unneccessary once evidence of the basic fact giving rise to the presumption has been raised

• can overcome w/conflicting evidence

Civil: jury MUST accept as conclusive fact (instructed)

Criminal: jury MAY accept as conclusive any fact judicially noticed

Question 8

2 Sources of knowledge for judge in taking notice

Answer 8

1. Notorious facts
   
   • (matters of common knowledge within the community)
2. Manifest facts
   
   • (matters easily verified by resorting to well-established, easily accessible sources) (NOT personal knowledge of judge)

Question 9

Rebuttable Presumptions re: legitimacy

Answer 9

Birth –> presume legitimate

To overcome: clear & convincing evidence

Question 10

Rebuttable presumption re: car driver

Answer 10

Proof of ownership of car –> presume owner was driver OR that driver was owner’s agent

Question 11

Rebuttable presumption re: missing person = death

Answer 11

ONLY if:

• inexplicably absent for continuous period of 7 years
• AND has not been heard from by those w/whom she would normally be expected to communicate

Question 12

Presumption: Sanity

Answer 12

Presume sane until contrary is shown

Question 13

2 conflicting presumptions arise?

Answer 13

Judge decides which applies which is weightier based upon policy and logic

Question 14

What is the “burden of proof”? (2 burdens)

Answer 14

1. Burden of producing evidence
   
   • = burden to produce sufficient evidence to creat a fact question of issue involved
   • permisisble inference can meet
   • *may shift to other side once established, but NOT if a permissibel inference
2. Burden of persuasion (AFTER the evidence is produced)
   
   • *never shifts
   • (if equal balance at end –> person w/burden of persuasion loses)

Question 15

Judicial notice: scientific tests

Need always prove scientific basis?

Answer 15

*Once scientific fact is universally accepted, are manifest fact –> binding on civil court

Scientific test has become sufficiently-well established (accepted in scientific community), courts no longer require proof of the underlying basis of the test

Expert testimony not always required IF scientific fact sufficiently well-established

Question 16

OBjections on appeal:

What is standard?

Answer 16

If general objection (“I object”)- will sustain if any ground for the objection

If specific objection (“hearsay”)- will sustain only if the stated ground was the correct one.