procedural considerations

Question 1

burden of proof - civil cases

Answer 1

preponderance of the evidence (more probably true than not true)

*although some civil cases (such as fraud or an oral contract to make a will) require proof of clear and convincing evidence (high probability).

Question 2

The burden of proof for criminal cases

Answer 2

beyond a reasonable doubt

Question 3

preliminary facts decided by jury

Answer 3

The jury decides certain preliminary facts relating to whether evidence is relevant at all.

Before such questions brought before jury, juuge must determine there is sufficient proof to support a jury finding that the preliminary fact exists.

EXAMPLES:

whether evidence is authentic,

whether a person was acting as a party’s agent in a breach of contract case

whether a witness has personal knowledge of the facts of their testimony.

Question 4

preliminary facts decided by judge

Answer 4

Is a witness mentally competent to testify?

Does a privilege exist?

Does the evidence meet the requirements of a hearsay exception?

*judge is not bound by the rules of evidence, except privilege.

Question 5

preliminary facts decided by judge - can jury be there?

Answer 5

discretion of the trial judge. However, the jury must be excused if:

(1) the hearing involves the admissibility of a confession;

(2) the defendant in a criminal case is testifying at the hearing and requests that the jury be excused; or

(3) justice so requires.

Question 6

judicial notice is

Answer 6

the recognition of a fact as true without formal presentation of evidence.

Question 7

judicial notice of fact

Answer 7

A court may take judicial notice of any fact that is “not subject to reasonable dispute” because

• generally known within the trial court’s jurisdiction OR
• fact can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned

Question 8

when can judicial notice be taken

Answer 8

at any stage of the proceedings (and can even be taken for the first time on appeal).

Question 9

If a court does not take judicial notice of a fact on its own accord, a party must

Answer 9

formally request that notice be taken and provide the court with the necessary information.

If the party does this, the court is required to take judicial notice of the fact.

Question 10

judical notice of fact conclusiveness

Answer 10

conclusive in a civil case but not in a criminal case.

civil case, the court must instruct the jury to accept the judicially noticed fact as conclusive.

criminal case, the jury is instructed that it may, but is not required to, accept the judicially noticed fact as conclusive.

Question 11

judicial notice of law - mandatory or permissive?

Answer 11

MUST take judicial notice of federal and state law and the official regulations of the forum state and the federal government.

MAY take judicial notice of municipal ordinances and private acts or resolutions of Congress or of the local state legislature. Laws of foreign countries may also be judicially noticed.

Question 12

mail delivery presumption

Answer 12

A letter, properly addressed, stamped, and mailed, is presumed to have been delivered.

Question 13

death from 7 year absence presumption

Answer 13

If a person is inexplicably absent for a continuous period of 7 years and they have not been heard from, they are presumed dead.

Question 14

presumption against suicide

Answer 14

When cause of death is in dispute, there is a presumption in civil cases that it was not suicide.

Question 15

legitimacy presumption

Answer 15

Every person is presumed to be legitimate (meaning, born to legally married parents).

Question 16

sanity presumption

Answer 16

Every person is presumed sane in civil and criminal cases until the contrary is shown.

Question 17

ownership of car presumption

Answer 17

Proof of ownership of a motor vehicle creates the presumption that the owner was the driver or that the driver was the owner’s agent.

Question 18

chastity presumption

Answer 18

Every person is presumed chaste and virtuous.

Question 19

regularity presumption

Answer 19

It is presumed that persons acting in an official office are properly performing their duties.

Question 20

continuance presumption

Answer 20

Proof of the existence of a person or condition at a given time raises a presumption that it continued for as long as it is usual with things of that nature.

Question 21

solvency presumption

Answer 21

A person is presumed solvent, and every debt is presumed collectible.

Question 22

bailee’s negligence presumption

Answer 22

Proof of delivery of goods in good condition to a bailee and failure of the bailee to return the goods in the same condition create the presumption that the bailee was negligent.

Question 23

marriage presumption

Answer 23

Upon proof of a marriage ceremony, a marriage is presumed valid.

Question 24

effect of a presumption

Answer 24

Until rebutted, a presumption operates to shift the burden of production to the party against whom the presumption operates.

Question 25

rebutting presumption in civil case

Answer 25

A presumption is overcome or destroyed when the adversary produces some evidence contradicting the presumed fact. Once sufficient contrary evidence is admitted, the presumption is of no force or effect.

Question 26

special consideration for presumptions in criminal case

Answer 26

The judge cannot instruct the jury that it must find a presumed fact against the accused; the judge must instruct them that they may regard the basic facts as sufficient evidence of the presumed fact.

Question 27

permissible inference

Answer 27

A permissible inference may allow the party to meet their burden of production (establish a prima facie case), but does not shift the burden to the adversary.

Question 28

conclusive presumptions

Answer 28

Because it cannot be rebutted, a conclusive presumption (for example, that a child under age 7 cannot commit a crime) is really a rule of substantive law.

Question 29

conflicting presumptions

Answer 29

When 2 or more conflicting presumptions arise, the judge should apply the presumption founded on the weightier considerations of policy and logic.

Question 30

choice of law regarding presumptions in civil actions

Answer 30

Under the Federal Rules, state law governs the effect of a presumption concerning a fact that is an element of a claim or defense to which, under the Erie doctrine, the rule of decision is supplied by state law

Question 31

rule of completeness

Answer 31

Where part or all of a statement is introduced into evidence, the adverse party may require the proponent of the evidence to introduce any other part—or any related statement—that ought in fairness to be considered at the same time. The adverse party may do so over a hearsay objection.

Question 32

limited admissibilty

Answer 32

Evidence may be admissible for one purpose but not another, or admissible against one party but not another court must, upon timely request, restrict the evidence to its proper scope and instruct the jury accordingly. court may exclude the evidence entirely if it determines that, even with a limiting instruction, the probative value of the evidence with respect to its legitimate purpose would be substantially outweighed by dangers

Question 33

preserving claim of error for appeal

Answer 33

A party may claim error in the court’s ruling if it affects a substantial right of the party (timely objection or move to strike the evidence, offer of proof) Once the court rules definitively on the record (either before or at trial), the party doesn’t have to renew its objection or offer of proof to preserve the claim of error for appeal.

Question 34

timing of objections at trial

Answer 34

Objections at trial should be made after the question, but before the answer, if the question calls for inadmissible information. Otherwise, a motion to strike must be made as soon as an answer emerges as inadmissible.

Question 35

timing of objections at depo

Answer 35

objections to the form of a question, or to a testimonial privilege, should be made when the question is asked or it may be waived. Objections based on the substance of a question or answer may be postponed until the deposition is offered in evidence.

Question 36

specificity of objects

Answer 36

specific objection unless the ground for the objection was apparent from the context.

Question 37

opening the door

Answer 37

A party who introduces evidence on a particular subject thereby asserts its relevance and cannot complain if their adversary offers evidence on the same subject.

Question 38

if answer is unresponsive but otherwise admissible, who can move to strike?

Answer 38

only examining counsel can move to strike the answer; opposing counsel cannot.

Question 39

offers of proof

Answer 39

An offer of proof may be made, disclosing the nature, purpose, and admissibility of rejected evidence, to persuade the trial court to hear the evidence and to preserve the evidence for review on appeal. It may be made by witness testimony, a lawyer’s description of what the evidence would have been, or tangible evidence marked and offered. The court can require the offer of proof to be made in question-and-answer form (meaning, the lawyer conducts their examination of the witness so that the judge hears exactly what the witness would have said in front of the jury)

Question 40

judicial power to comment on evidence

Answer 40

A judge may comment on the weight of the evidence in federal courts.

Question 41

shielding jury from inadmissible evidence

Answer 41

To the extent practicable, the judge must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.