Kaplan Pgs 447-459 - Presumptions, Relevancy, Privileges

Question 1

How does the burden of proof work?

Answer 1

The party that has this burden must initially produce legally sufficient evidence for each element of the claim or defense so that a reasonable trier fact could infer proof of the facts alleged

Question 2

If a party fails to meet their burden of proof, what happens?

Answer 2

A judgement as a matter of law is recorded against that party

Question 3

What are the three different standards of persuasion for evidence?

Answer 3

– by a preponderance of the evidence
- by clear and convincing evidence
– beyond a reasonable doubt

Question 4

What is the civil standard of persuasion?

Answer 4

By a preponderance of the evidence: this means enough evidence to tip the balance in favor of the fact.

This applies to most civil cases, preliminary fact determinations by the court, and some criminal issues like: venue, SOLs, and voluntariness of a confession

Question 5

What is the stricter civil standard of persuasion?

Answer 5

Clear and convincing evidence: this means the evidence may support a finding that the fact is significantly more likely to be true than to not be true.

This requires a high probability of truth and is used in situations like: fraud, disbarment, and the validity of a deed or will

Question 6

What is the criminal standard of persuasion?

Answer 6

Beyond a reasonable doubt: this means that the defendant must be proven guilty of each element of the crime, with no mitigating factors, beyond a reasonable doubt. Any doubt that exists must not affect a reasonable person’s belief that the fact is true

Question 7

What is a presumption?

Answer 7

This is a procedural device that shifts the burden of going forward to the opposing party.

It is an inference that can be drawn when one set of basic facts establishes a very high probability of the existence of another set of facts/ultimate or presumed facts, it there is no contrary showing.

Question 8

If countrary evidence is introduced to rebut the presumption, what happens?

Answer 8

The federal rules follow the Thayer majority view called the bursting bubble theory: The presumption disappears and then the jury determines the weight and credibility of the evidence

Question 9

What is an example of how presumptions work?

Answer 9

Proof that a letter was mailed establishes a presumption that the letter was received unless some evidence is introduced to refute receipt of delivery. If it can be shown that on the day the letter would likely have been delivered, a bucket of mail was stolen out of the mail truck, that would refute the presumption

Question 10

What are conclusive or irrefutable/irrebuttable presumptions?

Answer 10

Ones that are conclusively established once a set of basic facts is proven. They are then treated as a rule of substantive law instead of a presumption.

Ie: there is an irrebuttable presumption that a child under seven is incapable of negligence. So if you prove that a child is six, it is conclusively establishes that they cannot be liable for negligence

Question 11

When the rules of decision arise under state law, what doctrine is followed?

Answer 11

Erie doctrine which applies the substantive law of the state court

Question 12

Evidence is relevant if what?

Answer 12

1. It has any tendency to make a fact more or less probable than it would be without the evidence, and
2. The fact is of consequence in determining the action

Question 13

What would be an example of evidence that would be relevant?

Answer 13

Evidence that the defendant had an insurance policy on his wife before her death. This is relevant to whether or not he killed her. It does not prove he is guilty, it just makes his guilt slightly more likely by giving a possible motive

Question 14

What is the difference between logical relevance and legal relevance?

Answer 14

– 401 logical relevance: this is a threshold question that has to be answered before there can be consideration of other evidentiary principles or exclusionary rules. The evidence must have some logical tendency to prove or disprove a fact of consequence. This is a very low standard that is easy to establish
– 403 legal relevance: the evidence must be actually helpful to decide the case. If it is too minimally relevant, or carries a high probability of being misused, it might not be legally relevant

Question 15

What is the difference between direct evidence and circumstantial evidence?

Answer 15

– direct: evidence that proves the fact or set of facts without the need to draw another inference. I.e.: witness testimony that he saw a defendant shoot the victim
– circumstantial: in order to prove one set of facts, an inference must be drawn from another set of facts. I.e.: witness testimony that he saw D fight with victim a week before the murder

Question 16

Relevant evidence is admissible unless what things provide otherwise?

Answer 16

The constitution, a federal statute, the FRE, or other rules by the supreme court

Question 17

Irrelevant evidence is what?

Answer 17

Not admissible

Question 18

What are reasons that a court would exclude relevant evidence under 403?

Answer 18

If its probative value is substantially outweighed by a danger of these things:
– undue prejudice
– confusing the issues
– misleading the jury
– undue delay
– wasting time
– needlessly presenting cumulative evidence

Question 19

Rule 403 is concerned only with what kind of prejudice?

Answer 19

Unfair. Technically all evidence presented against the defendant will prejudice the jury, so 403 is only concerned with unfair prejudice

Question 20

If someone is suing another person for rear-ending them, would a judge allow that person to present evidence that the defendant works as a topless dancer to prove negligence?

Answer 20

Probably not under 403 because the probative value is low and there’s a substantial risk of prejudicing the jury against that person

Question 21

Can a reputation witness be cross examined in good faith regarding whether or not he has heard of specific acts of a party bearing on reputation?

Answer 21

Yes, this is an example of using specific acts for the limited purpose of impeachment as opposed to substantive evidence. This is heavily tested

Question 22

When are specific instances of animal behaviour admissible?

Answer 22

To prove the conduct in conformity with what happened in the case. So evidence that a dog has bitten others is relevant to show the likelihood of the dog biting a particular victim on a later occasion

Question 23

What are the words that would be used to describe something that would be considered a habit?

Answer 23

“Always“ or “invariably.” This refers to traits that are automatic and invariable patterns of behaviour

Question 24

Would words such as “frequently“ or “often“ be enough to constitute a habit?

Answer 24

No

Question 25

What is a habit?

Answer 25

A regular response to a given situation that is done without a high degree of forethought

Question 26

What are some examples of things that are considered to be habits?

Answer 26

Wearing a seatbelt on every car trip or taking vitamins every morning