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Flashcards in Evidence Answers Deck (8)
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Burden of Proof—

In a criminal case, the prosecution must prove each element of the crime “beyond a reasonable doubt.” Once a defense is raised by the defendant, the prosecutor must disprove each element of the defense [beyond a reasonable doubt]. (It is the defendant's duty to first raise the defense.)

There is a common law exception to this: In most states, the insanity defense must be proven by the defendant, by a preponderance of the evidence. This shifts the burden of proof to the defense.


Defendant’s Burden of Production—

The defendant is sometimes required to provide advance notice to the prosecution of defenses he intends to assert at trial. The amount of evidence required to satisfy the burden of production on affirmative defenses varies by jurisdictions In some jurisdictions, the defendant meets his burden of production (and thus, is entitled to an instruction to the jury on the defense) if he produces more than a ""scintilla of evidence"" regarding an affirmative defense. In other jurisdictions the defendant must introduce enough evidence to raise a reasonable doubt on the issue of the defense claimed.

If the defendant fails to meet his burden of production regarding an affirmative defense, the judge will not instruct the jury on the law pertaining to the defense, and the defendant is not entitled to have the issue considered by the jury in its deliberations.


Burden of Persuasion—

The burden of persuasion is the burden of a party to convince the jury or judge (whichever is the trier of fact) as to the issue(s) of fact. By contrast, the burden of proof is the burden of a party to establish the truth of a given proposition or issue (by whatever standard is required in that case—a preponderance, beyond a reasonable doubt, clear and convincing, etc.). So the latter, the burden of proof, is about convincing the trier of fact that a particular issue or proposition is true—that the accused was the person who robbed the victim, or that the defendant did overstep the property boundary and trespass on a given date. The former, the burden of persuasion, is the burden of then convincing the trier of fact that the issues of fact mean that party should prevail—that the accused should be found guilty because of the proven identification by the victim, or that the plaintiff should recover damages because of the proven fact that the defendant trespassed.

The burden of persuasion is, essentially, the ultimate burden of proof—it is the be-all-end-all burden for a party, whereas the burden of proof on an issue may shift around (if rebuttable presumptions arise or are rebutted).


The forms of impeachment for which you can use extrinsic evidence include:

-Prior inconsistent statements; (witness needs opportunity to explain/deny the statement and an adverse party is given an opportunity to examine the witness about it, or if so justice requires)
-Demonstrating bias or interest;
-Demonstrating sensory defects;
-Impeachment by criminal conviction; and
-Bad reputation/opinion for truthfulness evidence by a character witness.

The forms of impeachment where you cannot use extrinsic evidence include:
-Except for a criminal conviction under Rule 609, extrinsic evidence is inadmissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness via specific instances of uncharged conduct [Fed. R. Evid. 608(b)].
-Proving collateral matters relating to witness credibility upon denial by that witness; and (for example, If Glenda claims to have graduated from Yale, and the prosecution, under cross-examination, is unable to obtain an admission from Glenda that she did not complete her degree, the prosecution may not introduce testimony by the dean of Yale to prove Glenda is lying.)
-Self authenticating evidence does NOT REQUIRE extrinsic evidence of authenticity.


What rules to apply on the MBE for Evidence

The Multistate Bar Exam (MBE) generally tests the law “common to the states” (also referred to as “the generally prevailing view” or “the generally accepted view”). This means the common law approach. On some points of law, however, there is a divergence between the early common law approach and the modern trend among common law jurisdictions. The outline notes where modern statutes diverge from the common law. In all released questions available to date from the MBE, the bar examiners have either specified the approach in the question (the common law or the modern trend) or they have specified facts in the question that eliminate any possible differences in the answer to the question.


When answering a question on the MBE, should I automatically assume that there is a physician-patient privilege?

In the event that an MBE question gives absolutely no indication of what law is being applied, you should NOT apply the physician-patient privilege.

In FEDERAL court, do NOT apply the physician-patient privilege. BUT, in federal DIVERSITY cases (where state law will govern the substantive claims), you should still apply the Federal Rules of Evidence, but also apply state law with respect to privileges. Therefore, DO apply the physician-patient privilege to a diversity question (if the underlying state’s law encompasses such a privilege, that is!).

You should always look carefully to the question for relevant facts indicating whether or not the privilege will apply.

Here are some general rules with respect to applying privileges:

Federal courts recognize the following privileges through federal common law:
—Spousal (Husband-Wife) (which includes both the spousal communications privilege as well as the spousal testimony privilege)
—Clergy (Priest-Penitent)


What is the difference between honesty and truthfulness?

The distinction here between honesty and truthfulness is a very fine one. Generally, honesty refers to actions, while truthfulness refers to statements. So in this question, because committing fraud is an act rather than a simple statement, the character trait at issue is honesty. In a case where someone has made a statement that is a lie, on the other hand—such as by stating that a traffic light was red when he knew in fact that the light was green—then the character issue would be truthfulness.

If you come across this dilemma again and the person has committed a crime, the character issue is likely honesty. If this person has made an untruthful statement, the character issue is likely truthfulness.


Accordingly, one seeking to introduce evidence that an alleged admission by silence has occurred has been required to prove that:

(1) the statement was extrajudicial;
(2) it was incriminatory or accusative in import;
(3) it was one to which an innocent person would in the situation and surrounding circumstances naturally respond;
(4) it was uttered in the presence and hearing of the accused, or the accused heard it;
(5) the accused understood and comprehended the statement;
(6) the accused had sufficient knowledge to reply to the statement;
(7) the accused had an opportunity to reply; and
(8) he or she was at liberty to deny it or reply to it.