Procedural considerations Flashcards
Burdens of proof
burden of proof encompasses the burden of producing or going forward with the evidence and the burden of persuasion
a. Burden of producing evidence—party with the burden of producing or gong forward with sufficient evidence for a prima facie case. Once the party has satisfied burden of going forward with evidence, other side must come forth to rebut
b. burden of proof/ persuasion— This is the burden a party has to persuade a jury to decide an issue in its favor. question is whether party with burden of persuasion has satisfied it.
i. Civil cases→ belongs to the person bringing a case. usually a preponderance of the evidence (more likely than not). Can also be clear and convincing (high chance)
ii. Criminal→ beyond a reasonable doubt
c. Then must meet burden of going forth with the evidence, i.e producing sufficient evidence to create a fact question of the issue involed.
i. This is basically making out a prima facie case.
ii. After this, burden shifts to the defendant.
Presumptions
rule requiring a particular inference be drawn from an ascertained set of facts.
a. a. Effect—shift of burden of proof—presumption operates until shifted.
b. If the basic facts that support the presumption are proven at trial, and no other evidence is introduce, jury must find in accord with the presumption, because other party didn’t meet burden of going forward with rebuttal evidence.
c. Can rebut by introducing evidence contrary to the presumed fact. Presumption goes away after you get enough evidence.
d. They differ from inferences (like RIL, inference that destroyed evidence was unfavorable, or inference of undue influence if will drafter is also principal beneficiary).
i. In criminal case—presumption of innocence is a permissible inference because it never shifts to the accused.
e. Some presumptions are conclusive, so basically substantive law
i. Like kids under 7 cannot commit crime.
f. Under Erie, in a case based on diversity, federal court must apply subt law of the state in which the court sits. However, court will apply federal law to procedural issues.
i. If the presumption is on a substantive element of a claim or defense→ apply state law
Relationship of parties, judge and jury
a. Preliminary facts decided by a jury – agency, authenticity of a document, credibility of a witness and personal knowledge
b. Preliminary facts for a judge—facts regarding the competency of the evidence, like requirements for hearsay exceptions, privileges, expert testimony, mental competence
i. FRE allow trial judge to consider any nonprivileged relevant info even If not otherwise admissible.
ii. Some state courts say that only admissible evidence can be considered
iii. At the hearing where judge decides—both parties must have chance to present evidence with regard to the fact to be determined.
iv. Judge has discretion to decide whether to do so privately or in presence of jury.
c. Whether jury should be used is to be determined by the judge and is a preliminary fact determination.
d. Preliminary testimony (e.g circumstances surrounding an allegedly illegal search) by an accused doesn’t waive privilege against self-incrimination.
