PROCEDURAL ASPECTS OF EVIDENCE

BURDENS AND PRESUMPTIONS

Burdens of Proof ● Burden of Production:

○ Burden of producing or going forward with evidence
sufficient to make a ​prima facie case​ (create a factual
question for the trier of fact);
○ Once this is met, burden shifts to the other side to
come up with evidence to rebut the accepted evidence
● Burden of Persuasion:
○ Comes after the burden of production of evidence; did
the party satisfy the burden of persuading the finder of
fact:
○ Civil: ​by a preponderance​; some civil cases require
clear and convincing evidence
○ Criminal: ​beyond a reasonable doubt

Presumption Rule that requires that a particular inference be drawn from an

ascertained set of facts. Proof of the presumed fact is unnecessary
once evidence of the basic fact comes in.

Presumptions

True Presumptions Permissible Inferences Conclusive Presumptions

● Shifts burden of ● Allow the party to meet ● Cannot be rebutted and

production, not his burden of production, are ​substantive law
persuasion; but does NOT shift the
● Overcome/destroyed if burden to the adversary
opponent produces
evidence contradicting
that fact (rebuttal);
● In criminal trials, jury
cannot find true
presumptions against the
accused, but as basic
facts as sufficient
evidence of the presumed
fact

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Common Presumptions

Presumption Description

Legitimacy Every person is presumed legitimate

Against Suicide If cause of death is in dispute; presumption in civil cases that it

probably was not suicide

Sanity Everyone is sane in civil/criminal trials unless rebutted

Death from Absence Dead if someone is inexplicably missing for 7 yrs and not heard from

Ownership of Car/Agent Driver Proof of ownership of a car presumes that the operator was an agent

Chastity Every person is presumed chaste and virtuous

Regularity Those acting in an official office are properly performing their duties

Continuance Existence of a person/condition at a given time raises a presumption

that it continued for as long as it is usual with things of that nature

Mail Delivery Properly addressed, stamped, and mailed letter is collectible

Solvency A person is presumed solvent; every debt is presumed collectible

Bailee’s Negligence Failure of bailee to return the goods in the same condition (good
condition when initially given) presumes the bailee was negligent

Marriage Proof of ceremony means marriage is presumed valid

JUDICIAL NOTICE
Recognition of a fact as true without formal presentation of evidence. Can be taken at any time, requested
or not. Judicial notice does not apply to legislative facts, such as legal reasoning or lawmaking, which need
not be of common knowledge or capable of verification. Judicially notice facts are typically those that are
adjudicative​, those relating to the particular case. These facts must be ​indisputable​ and are either:
● Matters of Common Knowledge ​in the community (notorious facts)
● Capable of Verification​ by resort to easily accessible of unquestionable accuracy (manifest facts)
○ Includes scientific principles

Mandatory Permissive

Federal and state law; and official regulations of the Municipal ordinances and private acts or
forum state and the federal government resolutions of Congress or of the local state
legislature; foreign law

RULE OF COMPLETENESS​:
If part or all of a writing/recorded statement is introduced, the adverse party may require the other parts or
related writings/recorded statements be considered for fairness principles

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RELATIONSHIP OF PARTIES, JUDGE, AND JURY
Parties
Responsibilities Frame the issues in the
case and assume the
burden of proving the
issues raised
Det. of Prelim. Facts Not Applicable
Note, the accused may
testify on any
preliminary matter
without being subjected
to testifying against
herself at trial
Calling and Examining Can call and examine
Witnesses witnesses; can examine
witnesses called by the
court
Objections Make timely objections
to evidence
Judge Jury
Superintend the trial Determine questions of
fairly; determine fact
questions of law
Competency of real Agency; authenticity of a
evidence and witnesses; document; credibility of
requirements for a witness; and personal
hearsay objections; knowledge
privileges; and expert
testimony Jury is excluded when
the court is making
Can exclude jury when prelim det., including
making prelim det., admiss. of a confession
including admiss. of a or deft. in crim. case is
confession or deft. in testifying and requests
crim. case is testifying the jury be excused
and requests the jury be
excused
Can examine witnesses Not Applicable
called by the parties
Rule promptly, and may Not Applicable
state grounds