Procedural Considerations

Question 1

BOP

Answer 1

Burden of Producing or Going Forward With the Evidence: Party must present sufficient evidence to raise fact question for jury (usually on P unless it shifts by satisfying a PF case)
Burden of Persuasion: After all evidence is in, jury must be instructed how to decide; if issue is equally balanced in minds of jury, party with burden of persuasion must lose

Question 2

Jury Instructions: who has the BOP

Answer 2

Jury is only instructed on the BOP at the end of the trial when it’s time for them to decide; all throughout the trial, the judge decides

Question 3

POE

Answer 3

Most civil cases; party with BOP must persuasde jury that fact is more probably true than false (51%)

Question 4

C&CE

Answer 4

Some civil cases; party with BOP must persuade jury that there is a high probability that the fact is true (»50%)

Question 5

BARD

Answer 5

Criminal cases; prosecution must prove D’s guilt BARD

Question 6

Presumption

Answer 6

Rule that requires a particular inference ot be drawn from an ascertained set of facts (e.g., presumed innocent); contra permissible inferences (e.g. RIL)

Question 7

Destroying Presumptions

Answer 7

Civil: Adversary produces evid to rebut presumption
Crim: No mandatory presumptions against crim Ds; D need not produce evidence to rebut presumption

Question 8

Preliminary Facts Decided by JUDGE

Answer 8

Competency of evidence, privilege requirements, hearsay exceptions, mental capacity, expert quealifications, secondary evidence of writing, voluntariness of confessions

Question 9

Preliminary Facts Decided by JURY

Answer 9

Agency, authenticity, credibiilty, personal knowledge

Question 10

Other judicial powers

Answer 10

call Ws, comment upon evidence/credibility of Ws (federal only), prompt rulings, give limiting instructions