Burdens and Presumptions

Question 1

Who has the burden of production?

Answer 1

• The burden of going forward/producing evidence is on the plaintiff civilly, and on the prosecution in a criminal case.

Question 2

What are the three different burdens of persuasion?

Answer 2

• Preponderance of the evidence
• Clear and convincing evidence
• Beyond a reasonable doubt

Question 3

What is the preponderance of the evidence standard?

Answer 3

• Easiest to prove (51-49)
• Traditional civil standard.
• Burden in a preliminary matter in criminal cases (e.g., motions to suppress, voluntariness of a confession, etc.).

Question 4

What is the clear and convincing evidence standard?

Answer 4

• Around 75%
• Reserved for criminally-related civil cases - fraud; validity of a deed/will; also defendant’s burden for insanity as a defense in federal criminal cases.

Question 5

What is the beyond reasonable doubt standard?

Answer 5

• The guilt phase in a criminal case (most difficult to prove).

Question 6

What are presumptions (Rule 301)?

Answer 6

• A conclusion made as to the existence or nonexistence of a fact that may or must be drawn from other evidence that is admitted and proven to be true.
• Presumptions function as a shortcut in evidence.

Question 7

How does a presumption work?

Answer 7

• A presumption arises where one set of facts, “basic facts,” once established by the proponent, permits or requires belief of another set of facts, “presumed facts,” absent a contrary showing.

Question 8

What is an example of a legal presumption?

Answer 8

• Presumption of innocence;
• Minors are incompetent to contract or create will.

Question 9

What are examples of factual presumptions?

Answer 9

• Absentia for 7 years = absent person is dead;
• Child born during marriage = child of father;
• If fire a gun at a vital part of the body = intent to kill;
• Proof that a letter was mailed = letter received.

Question 10

What is a rebuttable presumption?

Answer 10

• Presumption can rebutted/disproved with other evidence;
• Most presumptions are REBUTTABLE.

Question 11

What is an irrebuttable presumption?

Answer 11

• Presumption can NOT be rebutted/disproved with other evidence

Question 12

When are irrebuttable presumptions not allowed?

Answer 12

• Irrebuttable NOT permitted in criminal cases

Question 13

What is the bursting bubble theory of presumptions?

Answer 13

• Once the opponent presents sufficient evidence that the presumed fact is not true, the presumption disappears - the bubble bursts – and the trier of fact cannot find the existence of the presumed fact absent other direct proof.
  o EXAMPLE: If a beneficiary in Los Angeles brings a claim against an insurance company seeking death benefits testifies that their spouse has been missing for seven years, a presumption is created. However, if the insurance company presents credible testimony that someone saw the spouse three years ago in London, the bubble bursts, and the presumption disappears. The proponent has then NOT proven that the spouse is dead.