B. PRESUMPTIONS (ART. III)
1. Burden of Proof
a. Burden of production
i) Definition
A party’s duty to come forward with some evidence that A exists.
ii) Consequence of failure
The court will decide the issue against him as a matter of law.
b. Burden of persuasion
i) Definition
If at the close of the evidence the jury cannot decide whether A existed, the jury must find against on that issue.
ii) Consequence of failure
A person with burden of persuasion will lose on that issue.
2. Presumptions (FRE 301)
a. Definition
It is a rule that requires that a particular inference be drawn from an ascertained set of facts.
It is a form of substitute proof because proof of presumed fact is rendered unnecessary once evidence has been introduced of the basic fact that gives rise to the presumption.
b. Comparison
i) Rebuttable presumption
A burden of proof of the non-existence of the presumed fact. (if .., must.., unless..).
FRE 301 governs only rebuttable presumptions.
ii) Conclusive/irrebuttable presumption (if…, must ….)
They are actually substantive rules of law and thus beyond the scope of the FRE.
iii) Inference
A presumption is mandatory. In contrast, an inference is permissible. For example, the doctrine of res ipsa loquitur involves an inference of negligence, but not a conclusion of negligence.
c. Effect of presumptions
i) Shift of burden of production only
The burden of production is shifted on the party against whom it is directed.
But the burden of persuasion remains intact.
ii) Rebutting a presumption
A presumption is overcome when the adversary produces some evidence contradicting the presumed fact.
3. Choice of Law (FRE 302)
Under the Erie doctrine, State law relating the effect of a presumption applies.
Monday, January 21, 2013
Friday, November 30, 2012
Intro to the Federal Rules of Evidence - 74
VIII. OTHERS
A. JUDICIAL NOTICE (ART. II)
1. Definition
Judicial notice is a process by which an adjudicative fact can established without formal evidentiary proof. Judicial notice is thus a substitute for evidence.
The FRE deal only with notice of adjudicative facts, not legislative facts or law.
In a jury trial, the judge must inform the jury by instructions of the fact to be noticed in order for notice to be effective.
2. Judicial notice of adjudicative facts (FRE 201)
a. Adjudicative facts v. Legislative facts
Adjudicative facts are facts that relate to the parties in a particular case - those that are necessary to prove or are used to prove . The term “adjudicative fact” is used in contradiction to the term “legislative fact.”
Legislative facts are facts which the judge considers as part of law-making function. For example, the Supreme Court relied on non-evidentiary studies by psychologist Kenneth B. Clark showing the psychological impact of segregation in Brown v. Board of Education, 347 U.S. 483 (1954).
b. Facts appropriate for judicial notice
i) Facts generally known in the community
The fact that the judge himself knows a fact to be so does not entitle him to take judicial notice of it if it is not truly common knowledge.
ii) Facts capable of immediate verification by sources of indisputable accuracy
Historical, geographic, physical, statistical, and scientific facts have all been noticed as verifiably certain. Facts recorded in the court’s own records are also frequently taken judicial notice.
c. Procedure
i) Party’s request
The judge must take judicial notice of any fact that meets the requirements, if requested by a party and supplied with the required info.
ii) Discretionary notice
The judge may take judicial notice on his own, without a request from a party.
d. Effect of judicial notice
i) Civil cases
In civil cases, judicial notice is conclusive. The jury must treat the fact as being so.
ii) Criminal cases
In criminal cases, it may be accepted as conclusive. It is due to a danger to violate a defendant’s constitutional right to a jury trial.
3. Judicial notice of law
Judicial notice of law means the determination of the law applicable to the case.
It is covered in the rules of procedure. See the Federal Rules of Civil Procedure (Rule 44.1); the Federal Rules of Criminal Procedure (Rule 22.1).
A. JUDICIAL NOTICE (ART. II)
1. Definition
Judicial notice is a process by which an adjudicative fact can established without formal evidentiary proof. Judicial notice is thus a substitute for evidence.
The FRE deal only with notice of adjudicative facts, not legislative facts or law.
In a jury trial, the judge must inform the jury by instructions of the fact to be noticed in order for notice to be effective.
2. Judicial notice of adjudicative facts (FRE 201)
a. Adjudicative facts v. Legislative facts
Adjudicative facts are facts that relate to the parties in a particular case - those that are necessary to prove or are used to prove . The term “adjudicative fact” is used in contradiction to the term “legislative fact.”
Legislative facts are facts which the judge considers as part of law-making function. For example, the Supreme Court relied on non-evidentiary studies by psychologist Kenneth B. Clark showing the psychological impact of segregation in Brown v. Board of Education, 347 U.S. 483 (1954).
b. Facts appropriate for judicial notice
i) Facts generally known in the community
The fact that the judge himself knows a fact to be so does not entitle him to take judicial notice of it if it is not truly common knowledge.
ii) Facts capable of immediate verification by sources of indisputable accuracy
Historical, geographic, physical, statistical, and scientific facts have all been noticed as verifiably certain. Facts recorded in the court’s own records are also frequently taken judicial notice.
c. Procedure
i) Party’s request
The judge must take judicial notice of any fact that meets the requirements, if requested by a party and supplied with the required info.
ii) Discretionary notice
The judge may take judicial notice on his own, without a request from a party.
d. Effect of judicial notice
i) Civil cases
In civil cases, judicial notice is conclusive. The jury must treat the fact as being so.
ii) Criminal cases
In criminal cases, it may be accepted as conclusive. It is due to a danger to violate a defendant’s constitutional right to a jury trial.
3. Judicial notice of law
Judicial notice of law means the determination of the law applicable to the case.
It is covered in the rules of procedure. See the Federal Rules of Civil Procedure (Rule 44.1); the Federal Rules of Criminal Procedure (Rule 22.1).
Friday, October 26, 2012
Intro to the Federal Rules of Evidence - 73
F. RESIDUAL EXCEPTION (FRE 807)
1. Intro
The FRE provide a general catch-all exception for hearsay statements not covered by specific exceptions.
2. Requirements
a. Circumstantial guarantees of trustworthiness
In determining whether the statement has “equivalent circumstantial guarantees of trustworthiness”, the court is likely to consider these factors: (1) under oath; (2) how much time lapsed; (3) declarant’s motive for telling truth; (4) first-hand knowledge; (5) written v. oral statement; (6) subsequently recanted statement.
b. Evidence of material fact
The statement must be offered as evidence of a material fact.
c. More probative
The statement must be more probative on the point for which it is offered than any other evidence which is available through reasonable efforts.
d. Interests of justice
Use of the evidence must be consistent with the general purposes of the FRE and the interests of justice.
e. Notice to adversary
The proponent must give notice in advance of trial to the adverse party as to the nature of the statement (including the name and address of the declarant) so that the adversary has an opportunity to prepare to meet it.
1. Intro
The FRE provide a general catch-all exception for hearsay statements not covered by specific exceptions.
2. Requirements
a. Circumstantial guarantees of trustworthiness
In determining whether the statement has “equivalent circumstantial guarantees of trustworthiness”, the court is likely to consider these factors: (1) under oath; (2) how much time lapsed; (3) declarant’s motive for telling truth; (4) first-hand knowledge; (5) written v. oral statement; (6) subsequently recanted statement.
b. Evidence of material fact
The statement must be offered as evidence of a material fact.
c. More probative
The statement must be more probative on the point for which it is offered than any other evidence which is available through reasonable efforts.
d. Interests of justice
Use of the evidence must be consistent with the general purposes of the FRE and the interests of justice.
e. Notice to adversary
The proponent must give notice in advance of trial to the adverse party as to the nature of the statement (including the name and address of the declarant) so that the adversary has an opportunity to prepare to meet it.
Intro to the Federal Rules of Evidence - 72
6. Forfeiture by Wrongdoing (FRE 804(b)(6))
a. Purpose
To remove the incentive of witness-tampering: D’s attempt to intimidate, bribe, or even murder the witness.
b. No reliability requirement
This exception does not require that the out-of-court declaration be reliable in order to be admitted. This makes the exception much easier to use than the residual exception of FRE 807 which requires circumstantial guarantees of trustworthiness.
c. Common scenarios
The out-of-court statements to which FRE 804(b)(6) is often applied include: (1) statements made by W while under police interrogation; (2) statements made by W in a grand jury proceedings or preliminary hearing; (3) statements made by W in W’s own criminal trial, or in a criminal trial of some third person.
a. Purpose
To remove the incentive of witness-tampering: D’s attempt to intimidate, bribe, or even murder the witness.
b. No reliability requirement
This exception does not require that the out-of-court declaration be reliable in order to be admitted. This makes the exception much easier to use than the residual exception of FRE 807 which requires circumstantial guarantees of trustworthiness.
c. Common scenarios
The out-of-court statements to which FRE 804(b)(6) is often applied include: (1) statements made by W while under police interrogation; (2) statements made by W in a grand jury proceedings or preliminary hearing; (3) statements made by W in W’s own criminal trial, or in a criminal trial of some third person.
Intro to the Federal Rules of Evidence - 71
5. Statement of Personal or Family History (FRE 804(b)(4))
a. Rationale
Hearsay statements concerning family history are often necessary to prove the facts of people’s everyday lives. For example, most people rely on the hearsay statements for the knowledge of where they were born, who their relatives are, etc.
b. Requirements
i) Person or relative
The now unavailable declarant must be a member of the family in question or otherwise so intimately associated with the family that they are likely to have accurate information concerning the matters declared (e.g., a family doctor).
ii) Personal knowledge
The declarant’s statements may be based either on her own personal knowledge of the facts involved or on her knowledge of family reputation.
c. Other ways to prove pedigree
Personal and family history may be proven by use of other exceptions to the hearsay rule. For example, it may be proven by: vital statistics (FRE 803(9); records of religious organizations (FRE 803(11)); marriage certificates and other certificates (FRE 803(12)); family records (FRE 803(13)); statements in property documents (FRE 803(15)); reputation (803 (19)); and judgments (FRE 803 (23)). For these exceptions, the declarant’s availability is immaterial.
a. Rationale
Hearsay statements concerning family history are often necessary to prove the facts of people’s everyday lives. For example, most people rely on the hearsay statements for the knowledge of where they were born, who their relatives are, etc.
b. Requirements
i) Person or relative
The now unavailable declarant must be a member of the family in question or otherwise so intimately associated with the family that they are likely to have accurate information concerning the matters declared (e.g., a family doctor).
ii) Personal knowledge
The declarant’s statements may be based either on her own personal knowledge of the facts involved or on her knowledge of family reputation.
c. Other ways to prove pedigree
Personal and family history may be proven by use of other exceptions to the hearsay rule. For example, it may be proven by: vital statistics (FRE 803(9); records of religious organizations (FRE 803(11)); marriage certificates and other certificates (FRE 803(12)); family records (FRE 803(13)); statements in property documents (FRE 803(15)); reputation (803 (19)); and judgments (FRE 803 (23)). For these exceptions, the declarant’s availability is immaterial.
Friday, August 31, 2012
Intro to the Federal Rules of Evidence - 70
4. Statement against interest (FRE 804(b)(3))
a. Justification
It is based on a common sense notion that reasonable person tend not to make statements against his own interest unless they believe them to be true.
b. Requirements
i) Meaning of “against interest”
1) When made
The declaration must have been against the declarant’s interest at the time it was made.
2) Pecuniary interest or property interest
Property rights, debts, and tort liability are included.
3) Penal interest
a) Third party’s self- inculpating statement
Independent corroborating evidence is required for the trustworthiness of the statement.
Here are some of factors to be considered to decide what constitutes adequate corroboration: whether the declarant had an apparent motive to lie; the general character of the declarant; whether more than one person heard the statement; whether the declaration was made spontaneously; the timing of the declaration and the relationship between the declarant and the witness; whether there is other evidence linking the declarant to the crime.
b) Statement inculpating the accused
The prosecution may introduce an out-of-court declaration, made against the declarant’s penal interest, that has the effect of inculpating the accused.
c) Co-defendant’s confession may not be admissible
The confession of a co-defendant implicating himself and the accused may not be admissible because of confrontation problems.
c. Inadmissibility of collateral statements
Statements may consist of declaration- against- interest parts and collateral parts (neutral or self-serving).
Under the principle of single mark, self-inculpatory parts and collateral parts are separated. And self-inculpatory statements are admissible, while collateral statements are not admissible under 804(b)(3).
It is because the fact that a statement is self-inculpatory does make it more reliable; but the fact that a statement is collateral to a self-inculpatory statement says nothing at all about the collateral statement’s reliability. See Williamson v. United States, 512 U.S. 594 (1994).
a. Justification
It is based on a common sense notion that reasonable person tend not to make statements against his own interest unless they believe them to be true.
b. Requirements
i) Meaning of “against interest”
1) When made
The declaration must have been against the declarant’s interest at the time it was made.
2) Pecuniary interest or property interest
Property rights, debts, and tort liability are included.
3) Penal interest
a) Third party’s self- inculpating statement
Independent corroborating evidence is required for the trustworthiness of the statement.
Here are some of factors to be considered to decide what constitutes adequate corroboration: whether the declarant had an apparent motive to lie; the general character of the declarant; whether more than one person heard the statement; whether the declaration was made spontaneously; the timing of the declaration and the relationship between the declarant and the witness; whether there is other evidence linking the declarant to the crime.
b) Statement inculpating the accused
The prosecution may introduce an out-of-court declaration, made against the declarant’s penal interest, that has the effect of inculpating the accused.
c) Co-defendant’s confession may not be admissible
The confession of a co-defendant implicating himself and the accused may not be admissible because of confrontation problems.
c. Inadmissibility of collateral statements
Statements may consist of declaration- against- interest parts and collateral parts (neutral or self-serving).
Under the principle of single mark, self-inculpatory parts and collateral parts are separated. And self-inculpatory statements are admissible, while collateral statements are not admissible under 804(b)(3).
It is because the fact that a statement is self-inculpatory does make it more reliable; but the fact that a statement is collateral to a self-inculpatory statement says nothing at all about the collateral statement’s reliability. See Williamson v. United States, 512 U.S. 594 (1994).
Intro to the Federal Rules of Evidence - 69
3. Statement under belief of impending death (FRE 804(b)(2))
a. Justification
The basis of its trustworthiness is more religious and psychological than it is legal: people would not want to die with a lie upon their lips.
b. Requirements
i) Awareness of imminent death
It is not enough that he knows that he is seriously ill/wounded, or that he will probably die.
1) Actual death not required
It will suffice if the declarant is unavailable for some reason other than death (e.g., disability or forgetfulness).
ii) Homicide cases or civil actions
Dying declarations can be used in civil cases. But regarding criminal cases, they can be used only in homicide cases.
iii) Must relate to circumstances of killing
The statement must be one concerning the cause or circumstances of what the declarant believed to be his impending death.
c. Miscellaneous
i) Usable on accused’s behalf
Dying declarations may be admitted on behalf of the defendant, even though most of the time they are admitted against him.
ii) Personal knowledge
As with other out-of-court declarations, the dying declaration will be admissible only if it appears to come from the declarant’s first-hand knowledge.
a. Justification
The basis of its trustworthiness is more religious and psychological than it is legal: people would not want to die with a lie upon their lips.
b. Requirements
i) Awareness of imminent death
It is not enough that he knows that he is seriously ill/wounded, or that he will probably die.
1) Actual death not required
It will suffice if the declarant is unavailable for some reason other than death (e.g., disability or forgetfulness).
ii) Homicide cases or civil actions
Dying declarations can be used in civil cases. But regarding criminal cases, they can be used only in homicide cases.
iii) Must relate to circumstances of killing
The statement must be one concerning the cause or circumstances of what the declarant believed to be his impending death.
c. Miscellaneous
i) Usable on accused’s behalf
Dying declarations may be admitted on behalf of the defendant, even though most of the time they are admitted against him.
ii) Personal knowledge
As with other out-of-court declarations, the dying declaration will be admissible only if it appears to come from the declarant’s first-hand knowledge.
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