Pressumptions - 301

Question 1

Who has the burden of going fwd in a cse or producing evidence?

Answer 1

• Civil
  
  • plaintiff has burden b/c moving pty
• Criminal
  
  • Prosecution has burden b/c moving pty

EXAMPLE: In a negligence case, Plaintiff establishes duty, breach, and causation, but fails to prove the element of damages. Plaintiff did not meet his burden of production.

Question 2

What is the burden of persuasion?

Answer 2

• goes to the question of how much - the degree to which the evidence must be proven
• there are three levels of persuasion

Question 3

What are the levels of burden of persuasion?

Answer 3

1. Preponderence of the evidence
   
   • tradtional civl standard
   • motion to supress in criminal cases or voluntariliness of a confession
2. Clear & convincing
   
   • reserved for a criminal related civil case
   • i.e. - fraud, validity for a will or deed
   • affirmative defense standard for insanity
3. Beyond a reasonable doubt
   
   • typical criminal standard

Question 4

How do you shift the burden of production?

Answer 4

1. Affirmative defneses
   
   • EXAMPLE: Statute of limitation; establishing jurisdiction, Rule 12b6, self defense, laches.
2. Pressumptions
   
   • conclusions made as to the existence or non-existence of a fact that must be drawn from other evidence that is admitted & proven to be true

Question 5

How do pressumptions function?

Answer 5

• they function as a shortcut in evidence
• Arises when:
  
  • one set of facts are offered by a proponent that
  • gives rise to another set of facts, pressumed facts, absent a contrary showing
  • the opponent has to present sufficient evidence that the pressumed facts are not true thus bursting the bubble of the pressumption

Question 6

Examples of rebuttable pressumptions.

Answer 6

EXAMPLE: If someone has been missing for seven years, it’s presumed that they’re dead.

EXAMPLE: A child born of a husband and wife living together is presumed to be theirs. However, DNA could be used to rebut.

EXAMPLE: If a party can prove that a letter was mailed, the court will allow the jury to presume that it was received.

EXAMPLE: If a party says he mailed a letter, but the opponent claims he never received the letter, the opponent can rebut the presumption that a letter mailed has been received. Then the proponent has not conclusively proved that fact.

Question 7

Are there presummptions in criminal cases?

Answer 7

• rare & disfavored in criminal cases
• if they are not rebutted, results in a judgment as a matter of law violating due process; being unconstitutional
  
  • thus no pressumptions in criminal cases

Question 8

When are pressumptions irrebuttable?

Answer 8

• when they are created by statute or common law

EXAMPLE: In a negligence action, if the defendant is age seven, some states have statutes that say a child aged seven or below is incapable of negligence. As a matter of law, there is an irrebuttable presumption that no matter how mature the seven-year-old is, there can be no finding of negligence.

Question 9

Recap: 1. What is judicial notice?

Answer 9

A substitute for proof where the cts accepts certain adjudicated facts as true w/o requiring formal presentation

Question 10

Recap: 2. Does a civil jury have to accept a judicially noticed fact as conclusive? A criminal jury?

Answer 10

• Yes a civil jury must accept judicially noticed facts as conclusive/true
• No, a criminal jury may but is not required to accept judicially noticed facts as conclusive/true

Question 11

Recap: 3. What are the three levels of burden of persuasion, and when are they applied?

Answer 11

1. Preponderance of the evidence – traditionally civil;
   
   • also in some criminal like motion to surpress & voluntariness of a confession
2. Clear & convincing - criminally related civil cases
   
   • i.e. - fraud, validity of a will or deed, affirmative defense like insanity
3. Beyond a reasonable doubt – typically criminal