Procedural Issues

Question 1

Preliminary Issues of Admissibility

Answer 1

1. The judge decides:
   
   1. Whether a witness is qualified to testify
   2. Existence of privilege
   3. Admissible of evidence
2. In doing so, the judge is not bound by the rules of evidence, except privilege.

Question 2

Judicial Notice

Answer 2

Definition: the recognition of a fact as true without formal presentation of evidence

Question 3

What Facts May Be Judicially Noticed

Answer 3

1. A ct may judicially notice a fact that is not subject to reasonable dispute because:
   
   1. The fact is generally known within the trial ct’s jurisdiction, or
      
      1. NYC is in New York.
   2. The fact can be accurately and radily determined from sources whose accuracy cannot reasonably be questioned
      
      1. E.g. October 10, 2017 was a Tuesday.

Question 4

Conclusiveness in Judicial Notice

Answer 4

1. In a civil case, the ct must instruct the jury to accept the judicially noticed fact as conclusive
2. In a criminal case, ct must instruct the jury that it may or may not accept the judicially noticed fact as conclusive

Question 5

Presumptions

Answer 5

• Definition- a rule that requires a particular inference to be drawn from an ascertained set of facts
• E.g. a person who has been missing for 7 years is presumed dead.

Question 6

Destroying presumptions

Answer 6

1. Destroying presumptions in civil cases
   
   1. A presumption in destroyed when the adversary produces evidence to rebut the presumption
2. Destroying presumptions in criminal cases
   
   1. A D in a criminal case does not need to produce evidence to rebut a presumption (i.e. there are no mandatory presumptions against criminal defendants)