EVIDENCE Chapter 1 Preliminary Matters: Overview of Trial Process A. Preliminary Matters 1. Codification & Purpose of FRE 2.

. Proceedings Governed by FRE 3. Preliminary Questions a. 104(a) Judge Decides / Screens 4. Making a Record & Preservation a. Grounds... Particularity... Parties... Purpose 5. Limited Admissibility a. 105 Limiting Instruction: 6. Rule of Completeness a. 106 Completeness 7. Appellate Review & Evidentiary Error a. Error Happens: b. Not Error: c. Interlocutory appeals generally NOT allowed. Chapter 2 Relevancy B. Relevancy a. The most FUNDAMENTAL principle of evidence law is that evidence must be RELEVANT to be ADMISSIBLE. Logical Relevance a. 401 Relevance Defined Judge Decides Most Relevancy Questions a. 104(a) Judge Decides Jury Decides Prelim Questions Affecting Relevancy a. Sometimes turns on prelim question of fact. b. If sufficient evidence, then jury gets to decide on weight as usual c. If jury decides against genuine Connecting Up a. 104(b) Connecting Up Pragmatic Relevance a. 403 Trial Judge Discretion Chapter 3 The Definition of Hearsay C. Definition of Hearsay Most important Exclusion Doctrine 1. The Hearsay Doctrine i. 802 Hearsay Generally Inadmissible ii. 803 Contains 23 Exceptions a. Apply regardless of UNAVAILABILITY iii. 804 Five Exceptions, depend on UNAVAILABILITY iv. 807 Catch-All Exception a. Mainly hinges on trustworthiness 1 of 15

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b. Hearsay Defined i. 801 Defined a. Out court assertion, verbal/non, offered for truth matter asserted c. Narrower Definition d. Broader Definition Hearsay even if NON-assertive Rationale for Rule AGAINST Hearsay i. Like cross, live testimony, oath, live demeanor. b. Criminal Cases Hearsay Dangers a. Perception, memory, narration, veracity Hearsay v. Personal Knowledge a. 602 Need for Personal Knowledge b. 602 Personal Knowledge Requirements Verbal Expressions as Hearsay a. 801(a) Verbal Expression is... Conduct as Hearsay a. Assertive Conduct b. Nonassertive Conduct i. Two Step Inference Test ii. Wright v. Doe d. Tatham iii. 801(a) FRE View: non-assertive conduct is NOT hearsay. c. Distinguishing Assertive Conduct from Nonassertive Conduct Offered to Prove Truth of Matter Asserted & NON-hearsay Uses a. Impeachment NON-Hearsay b. Verbal Acts i. 802 Verbal Acts Come In, of Legal Consequence NON-Hearsay c. Effect on Listener NON-Hearsay Use i. 802 Effect on Listener NON-Hearsay d. Verbal Markers NON-Hearsay Use i. 802 Verbal Markers e. Circumstantial Evidence of State of Mind NON-Hearsay Use i. 802 & 803(3) State of Mind NON-Hearsay Use f. Circumstantial Evidence of Knowledge, Memory or Belief NON-Hearsay Use Admissible as NOT HearsayPrior Statements of TESTIFYING WITNESSES i. 801(d)(1) Three Categories of Prior Testifying Witnesses b. Prior INCONSISTENT Statements TESTIFYING Witnesses i. Requirements a. Cross NOT required, just oath b. Only inconsistent enough to raise doubt c. Loss of memory: inconsistent if claiming lack of memory i. Note: some courts, inconsistent only if feigned. c. Prior CONSISTENT Statements TESTIFYING WITNESS a. ComLaw: hearsay for rehab, NOT truth b. 801(d)(1)(B) allow REHAB and for TRUTH of matter asserted ii. No Oath Required Neither oath or proceeding. iii. Rebut Certain Attacks 801(d)(1)(B) iv. Time Sequence 801(d)(1)(B) d. Prior Statements of IDENTIFICATION TESTIFYING WITNESS 2 of 15

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801(d)(1)(C) Prior ID Chapter 4 Hearsay Exceptions

D. Hearsay Exceptions 1. Admissions 801(d)(2) EXCEPTION i. NOT hearsay, if out court statement, by party offered against party at trial. b. Individual Admissions 801(d)(2)(A) EXCEPTION i. Bruton Doctrine: bars use of statement made by one criminal defendant that implicates another co-defendant; limiting instructions arent enough under Sixth Amendment Confrontation Clause. c. Adoptive Admissions 801(d)(2)(B) EXCEPTION d. Authorized Admissions 801(d)(2)(C) EXCEPTION i. Current Pleadings ii. Other Pleadings iii. Interrogatories iv. Requests to Admit e. Admissions by Agents and Employees EXCEPTION i. ComLaw: admissible against employer only when speaking authority. ii. 801(d)(2)(D) Authority NOT required, BUT must be within scope. f. Co-Conspirator Statements 801(d)(2)(E) EXCEPTION i. Bourjaily: Judge under 104(a) must find these by preponderance of the evidence before admitting. Jury may still find NO conspiracy, and their standard is beyond a reasonable doubt. 2. Exceptions NOT Requiring Declarant UNAVAILABILITY a. Present Sense Impressions 803(1) EXCEPTION b. Excited Utterances 803(2) EXCEPTION c. State of Mind EXCEPTION a. 803(3) Current Physical or Mental Condition i. Physical Condition 803(3) EXCEPTION ii. Proving Mental State 803(3) EXCEPTION iii. Proving Future Conduct 803(3) EXCEPTION a. Hillmon: SCOTUS approved use of statement of intent to prove future conduct. Statement CANNOT be used to prove future conduct of ANOTHER PERSON. d. Medical Diagnosis or Treatment 803(4) EXCEPTION e. Past Recollection Recorded 803(5) EXCEPTION f. Business Records 803(6) EXCEPTION i. Multiple Hearsay in Business Records 805 ii. Untrustworthiness 803(6) i. Trust Factors a. Prepped for litigation, b. Useable outside litigation, c. Motives to fabricate, d. Complex Records, e. Experience of preparer, f. Record offered against entity. g. Absence of Records or Entry 803(7) -- EXCEPTION 3 of 15

h. Public Records 803(8) EXCEPTION i. Activities of Office or Agency 803(8)(A) ii. Matters Observed 803(8)(B) iii. Investigative Findings 803(8)(C) i. Learned Treatises 803(18) EXCEPTION j. Vital Statistics 803(9) EXCEPTION k. Absence of Public Record or Entry 803(10) -- EXCEPTION l. Ancient Documents 803(16) EXCEPTION m. Commercial Lists 803(17) EXCEPTION n. Reputation 803(21); 404; 405; 608 EXCEPTION o. Court Judgments 803(22) 3. Exceptions REQUIRING Declarant UNAVAILABILITY more EXCEPTIONS a. Unavailability Defined 803(a) i. Privilege exempted if court rules privileged. ii. Refusal declarant refuses to testify in face of court ruling. iii. Lack Memory no longer remembers, events or conditions from earlier statement iv. Death or Illness unavailable, if can testify later, may wait instead of admit hearsay v. Absence proponent unable to get declarant by process or reasonable means b. Wrongful Procurement & Exceptions 804(b) c. Constitutional Unavailability 804(a) i. Barber v. Page: Prosecutor must show good faith effort to get declarant in court before the judge will admit the hearsay statement instead. d. Forfeiture of Hearsay Objection 804(b) FORFEITURE e. Former Testimony 804(b)(1) EXCEPTION i. Depositions 804(b)(1) EXCEPTION ii. Grand Jury Testimony DOESNT FIT a. Salerno: burden on defendant to show government had similar motive. f. Dying Declarations 804(b)(2) Admitted EXCEPTION i. ComLaw: Such statements were only admissible in homicide cases. ii. FRE 804(b)(2) doesnt have to actually die, must think dying & be unavaiable g. Statements Against Interest 804(b)(3) EXCEPTION i. Subjective Standard ii. Conflicting Interests iii. Fact Versus Statement iv. Against Penal Interest 804(b)(3) EXCEPTION v. Collateral Statements 804(b)(3); Williamson Case h. Catchall Exception 807 EXCEPTION i. Trustworthiness The hearsay must have... a. Idaho v. Wright: Confrontation objection? Corroboration CANT overcome it ii. Material 401; 402 iii. More Probative iv. Interests of Justice v. Notice Chapter 5 Confrontation E. Confrontation Sixth Amendment guarantees def right to cross, applicable in State and Federal. 1. Right to be Present, to Face Prosecution Witnesses, and to Cross 4 of 15

2. Right to Impeach 3. Right to Exclude Testimonial and Some Other Hearsay Witnesses deemed to include declarants a. Testimonial Hearsay i. Crawford v. Washington a. If declarant testify at trial, & can or was crossed in past, 6th NOT in way. ii. 804(b)(1) Note: Despite Crawford, dont forget the Hearsay Exceptions. b. Non-testimonial Hearsay i. Ohio v. Roberts (Old Doctrine): a. 1st show unavailable, and statement as reliable, if statement is hearsay b. Note: under this std., reliability assumed if firmly rooted exception applies. c. Reliability: statement meets std if particularized showing, w/ corroboration 4. Limits of Confrontation, and Forfeiture of Objection a. Certain Exceptions Approved i. Crawford a. Supreme Court holds to allow certain hearsay exceptions against accused. b. Examples: co-conspirator statements; Business records; maybe dying declaration. ii. Ohio v. Roberts (Old Doctrine): a. allow present sense, excited utterance, state of mind, medical statements b. Required: Were looking for those private in nature. b. Non-hearsay Uses i. Crawford: non-hearsay use DOESNT violate Confrontation of 6th. c. Forfeiture of Right to Exclude Chapter 6 Character & Habit Evidence F. Character and Habit Evidence 1. Character to Prove Past Conduct a. First Exception: Criminal Defendants 402(a)(2) EXCEPTION b. Second Exception: Crime Victims EXCEPTION i. Rape Shield Statutes 412 ii. Exceptions to Rape Shield 412 iii. Procedural Requirements 412 c. Third Exception: Witnesses 607, 608, 609 EXCEPTION d. Fourth Exception Sexual Assault Cases 412 through 415 i. FRE 413 415 a. Allows for to character of def as way of showing conduct. b. Note: 413/414 case use past child molestation to show committed presently c. Notice: Prosecutor must give advance notice. ii. FRE 415: same principle in civil suits. 2. Character as an Element a. Showing: This may be done with opinion, reputation AND specific instances on direct. 3. Prior Bad Acts 404(b) MAY ADMIT i. Evidence of prior wrongs, admit under 404(b) narrowly, to prove: a. Motive, opportunity, intent, prep, plan, knowledge, identity, etc. ii. Note: MAY admit if NOT require general inference from CHARACTER TO CONDUCT. iii. Note: Evidence under 404(b) still subject to exclusion under 403. b. Extrinsic Acts Versus Intrinsic 404(b) 5 of 15

i. Intrinsic Offenses c. Degree of Similarity Required d. Showing that the act was Committed i. Huddleston: can use prior act show def committed present, if proof sufficient to support finding, jury then decides under 104(b) 4. Habit Evidence GENERALLY ADMISSIBLE a. Meaning of habit i. Define: behavior in a specific setting. a. Specificity, b. Regularity of behavior, c. Degree to which automatic. b. Proof of habit c. Common law limitations rejected 406 Chapter 7 Relevancy: Specific Applications G. Relevancy: Specific Applications a. Note: excluded despite minimal relevancy under 401. 2. Subsequent Remedial Measures 407 Often NOT admissible a. Rationale b. Application i. Includes: design, labels, warnings, instructions, personnel or procedures. c. Product Liability Suits i. Majority of States: will NOT exclude in this setting & they dont follow federal lead. d. Erie Problem i. Most courts ignore state law in diversity, apply federal for products liability. e. Exceptions 407 EXCEPTIONS i. Impeachment ii. Feasibility 3. Civil Settlement Offers & Negotiations 408 EXCLUDED Often a. Claim b. Dispute i. Note: 801(d)(2) says promises to pay on non-disputed matters ARE admissible. c. Settlement Agreements d. Settlements with a Third Party 408 e. Exceptions: Two recognized, one possible i. Proving Bias ii. Refuting Claim of Undue Delay iii. Impeachment possibly 4. Payment of Medical Expenses 409 5. Pleas and Plea Bargaining 410 a. Withdrawn pleas 410 b. Nolo pleas c. Plea bargaining statements ARE EXCLUDIBLE i. Statements to Police ii. Impeachment or Substantive Evidence 410 iii. Exceptions 6. Liability Insurance 411 6 of 15

a. Rationale 411 b. Exceptions i. Proving agency, ownership, control ii. Impeachment CAN USE Chapter 8 Competency of Witnesses H. Competency of Witnesses a. Term of art describes req that witness be qualified to give testimony on stand 2. Almost Everyone is Competent as a Witness 601 3. Mentally Disabled Witnesses 601 a. 403: element of relevancy determination still applies. b. Medical Exam: Doubtful courts can compel, but if witness wont, court may decide to exclude such testimony. 4. Drug or Alcohol Use or Addiction 5. Hypnotized Witnesses a. Rock Case: SCOTUS held absolute bar against hypnotically refreshed testimony is unconstitutional. 6. Children 7. Lawyers barred from testifying in own case 8. Judges no testimony case presiding 9. Jurors: Trial Testimony not in trials in which they sit 10. Jurors: Impeaching Verdicts 606(b) a. Extraneous Information ADMISSIBLE b. Outside Influence c. Error On Verdict Form 11. Dead Mans Statutes: blocks those whom sue estates of decedents from testifying as witnesses. Prevents claimants from giving false testimony and the decedent unable to respond. Chapter 9 Direct and Cross-Examination I. Direct and Cross-Examination a. 611 Judge Discretion 2. Leading Questions i. Below are exceptions. b. Preliminary Matters c. Adverse or Hostile Witness d. Forgetful or Frightened Witness e. Child Witness 3. Refreshing Recollection a. Note: If document doesnt refresh, that doesnt make document admissible. Must qualify under hearsay rules such as 803(5) Past Recollection Recorded or the rule covering prior inconsistent statements under 801(d)(1)(A). b. Adverse Party May Examine Document: They must be given this opportunity. 4. Cross-Examination i. Fundamental trial right, if no cross, direct can be stricken, or mistrial declared b. Scope of Cross i. Majority 7 of 15

c. d. e. f.

ii. Minority iii. Note on 611(b) Leading Questions i. They are allowed in cross Harassment of Witnesses 611(a) Questioning by Judge 614(a) and (b) Exclusion of Witnesses 615 Chapter 10 Impeachment and Rehabilitation

J.

Impeachment and Rehabilitation a. ALL witnesses subject to impeachment w/ other testimony and extrinsic evidence. b. Five methods follow. 2. First Method: SHOWING BIAS i. No federal Rule: no FRE that governs bias. Bias is ALWAYS relevant. b. Types of Bias i. Personal, social, romantic, sexual, ii. Business relationships, interest in outcome, iii. Fear of retaliation, settlement of claim between, iv. Party and the witness, etc. c. Proving Bias d. Restricting Proof of Bias Discretion under 403 3. Second Method: SHOW DEFECT IN SENSORY OR MENTAL CAPACITY i. NO FRE on point. b. Form of Proof c. Alcohol or Drug Use d. Mental Illness or Disability 4. Third Method: SHOW BAD CHARACTER BY MEANS OF PRIOR BAD ACTS a. Truthfulness i. FRE 608, however, limits that inquiry, to fraud, falsehood, or deception. b. Focus on Act c. Good Faith Basis d. Discretion to Exclude 608(b), 403, 611 e. No Extrinsic Evidence 608(b) 5. Third Method Continued: SHOW BY MEANS OF PRIOR CRIMINAL CONVICTIONS i. Allow for some prior crimes, certain ones harbor inherent dishonesty. b. Automatic admissibility 609(a)(2) i. Auto admit for convictions involving dishonesty. c. Discretionary admissibility 609(a)(2) i. Can use prior felony to impeach, subject to balancing test. d. Balancing tests 403 i. Admit felonies to impeach if high probative above prejudicial effect on accused e. Factors considered in balancing 609(a)(2) and 403 i. Nature of prior crime, ii. Bears on veracity, iii. Recent occurrence, iv. Similar to current crime, v. Entire criminal record context, 8 of 15

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vi. Credibility issues? f. Ten-year limit 609(b) g. Proof of conviction h. Details of conviction Only Following Allowed i. Date, nature, punishment, location conviction obtained. i. Effect of pardon or annulment j. Juvenile adjudications i. And the impeachment is key to determination of guilt or innocence. k. Pendency of appeal Third Method Continued: SHOW BY MEANS OF REPUTATION OR OPINION EVIDENCE i. 608(c) of FRE, b. Foundation 608 c. Cross-Examination Fourth Method: SHOW PRIOR INCONSISTENT STATEMENTS i. May be impeached w/ evidence made prior inconsistent w/ trial testimony. b. Inconsistent If feigned c. Foundation required 613(a) d. Opportunity to explain 613(b) e. Collateral matters 613 f. Abuse of 407 g. Impeaching by Silence h. Impeaching and Miranda Rights Fifth Method: CONTRADICTING THE WITNESS a. Dual relevancy requirement i. Note: Exception for single purpose evidence when evidence refutes lynchpin point. b. Setting up witness c. Illegally seized evidence i. Havens Case: even testimony on cross-examination can be contradicted by illegally seized evidence provided the scope is still within direct testimony. Rehabilitation or Repair i. Note: cannot repair party unless theyve been attacked. b. Allowing witness opportunity to explain c. Showing character for truthfulness a. Note: can only describe general truthfulness, cant get into specifics. ii. Attack on character a. Note: bias or inconsistent statement allegations DONT open the door. iii. Foundation for character testimony iv. Cross-examining the character witness. Prior Consistent Statements a. FRE 801(d)(1)(B): must be to reubt an express or implied charge recent fabrication. b. Note: the prior consistent is admissible for rehab and the substantive point. Chapter 11 Opinion and Expert Testimony

K. Opinion and Expert Testimony 1. Lay Opinions 701 a. Collective Facts b. Personal Perception 701(a) 9 of 15

c. Helpfulness Requirement 701(b) 2. Expert Opinions 3. Qualifications of Expert 702 a. Note 104(a): Judge determines if qualified, jury decides weight of testimony. 4. Bases for Expert Testimony 703 a. Facts Perceived by Expert b. Facts Made Known to Expert at Trial c. Facts Reasonably Relied On i. 703 Bars proponent from disclosing hearsay; must meet a hearsay exception; unless probative value is high. ii. If Hearsay Gets Used: Cross examiner gets benefit of its use as well. 5. Ultimate Issue Rule REJECTED 704(b) 6. Testimony About Mental Condition 704(b) 7. Expressing Opinion Without Disclosing Underlying Facts 705 8. Appointing Expert Witnesses 706 9. Scientific Evidence 401 - 403 a. Frye i. scientific ideas reflect ideas that won general acceptance, in scientific community b. Daubert i. Discarded Frye and required judge can pass on reliability of scientific. c. Khumo Tire i. Expanded Duabert, all expert testimony technical in nature reached d. 702 Criterion i. Must rest on sufficient data, application of reliable principles, applied reliably, ii. Note: Reliability is judges determination under 104(a) e. Daubert Factors for Reliability i. Theory tested, peer review, ii. Rates of error, iii. Established standards for technique, iv. Technique generally accepted, v. in pertinent community. Chapter 12 Authentication L. Authentication a. Any exhibit, proponent lay foundation, by offering evi to suppor jury to find is what it is. 2. Role of Judge and Jury a. Judge decides if sufficient evidence, jury on authenticity. b. Note: raises issues of conditional relevancy i. Exhibit is relevant if condition is satisfied, ii. That it is what proponent claims it is, iii. If jury finds authentic, jury decides weight, iv. If NOT authentic, jury told to ignore. 3. Steps in Process a. Mark for identification b. Show is what proponent claims, c. Goes into evidence, d. Letting opposing examine, 10 of 15

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e. Opportunity for objection, f. Get ruling from court, g. Some cases: present to jury to examine in court. Pretrial Authentication Sample Foundations 901(b) i. 10 primary examples of authentication that satisfy as matter of law. b. Testimony of Person with Knowledge c. Chain of Custody Writings a. Lay Opinion on Handwriting b. Comparison by Trier or Expert Witness c. Distinctive Characteristics i. Show distinctive patters, internal make-up, w/ surrounding circumstances ii. Reply Letter Doctrine a. Letter may be authd based on, b. Content as being from A, c. By showing it is a reply, d. To a letter previously sent to A. e. Note: Signature on letter not enough to authenticate. d. Public Records or Reports e. Ancient Documents Hearsay Exception 803(16) Recordings Photographs Medical Images Computer Output 901(b)(9) Telephone Conversations Self-Authentication i. Means that at face value, that no authentication is required. b. Public Documents i. Originals are self-authenticating, if they are certified. ii. Domestic Public Documents 902(1) a. Bear Seal b. Not Bear Seal iii. Foreign Public Documents 902(3) c. Copies of Public Records 902(4) d. Official Publications 902(5) e. Newspapers and Periodicals 902(6) f. Trade Inscriptions 902(7) g. Acknowledged Documents 902(8) h. Commercial Paper 902(9) Chapter 13 Best Evidence Doctrine

M. Best Evidence Doctrine a. Proving content requires original of thing itself, unless unavailable or exception. 2. Definitions a. Writings 11 of 15

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4. 5. 6. 7. 8. 9. 10. 11.

b. Recordings c. Photographs d. Original e. Duplicate General Rule 1002 a. Two Scenarios for Content and Best Evidence Doctrine i. Sometimes substantive requires proof of content, ii. Or party proves content on its own, both situations, 1002 Best Evidence applies. Matters Incidentally Recorded 1002 NOT implicated Admissibility of Duplicates 1003 Production of Original Excused Degrees of Secondary Evidence 1004, rejects concept Public Records 1003, 1005 Summaries 1006 Written or Testimonial Admission Judge and Jury 104(a), 1008 a. 1008, jury decides if writing ever existed, original, or whether evidence reflects contents. Chapter 14 Privileges

N. Privileges 1. Sources of Privileges 501 a. FRE leaves to common law, and where state rules of decision govern. 2. Attorney-Client Privilege a. Client b. Lawyer c. Legal Services d. Communications e. Confidentiality f. Joint Clients g. Pooled Information h. Corporate Client a. Privilege applies to corporations, but question is how far. b. Control Group Theory: c. Subject Matter Theory: d. Upjohn: SCOTUS virtually adopts the subject matter theory. ii. Obtain legal advice iii. Request by superior iv. Scope of duties v. Treated as confidential i. Shareholder Litigation i. Garner: shareholders can overcome by making showing of good cause that justifies, access to the privileged info. j. Client Identity, Fee Arrangements k. Lawyers Observations of Client l. Evidence Delivered to Lawyer i. Note: attorney doesnt have to disclose who gave it to him. m. Future Crime or Fraud Exception 12 of 15

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i. Zolin: material claimed to be privileged must be reviewed in camera. Breach of Duty Exception Claimants Through Same Deceased Client Duration of Privilege Claiming the Privilege Appellate Review i. Note: Claimant of privilege held in criminal contempt can seek immediate review. ii. Note: if civil contempt, relief depends on if party. If party, NO interlocutory appeal. If non-party, then YES to immediate appeal. s. Waiver by Voluntary Disclosure i. 612 judge can order disclosure of document used refresh client in fairness. t. Waiver by Inadvertent Disclosure u. Waiver by Claim Assertion Spousal Testimony i. Most states recognize this privilege, when offered against him in criminal case. b. Holder c. Scope d. Marital Relationship e. Exceptions i. Majority recognize exception when one spouse charged w/ crime/tort, Marital Confidences i. Fed. Courts, covers comm. between spouses DURING marriage in crim and civil b. Holder i. Majority: c. Scope d. Marriage Relationship e. Exceptions Psychotherapist-Patient Privilege a. Jaffee: applies federally, and statements made in confidence, for purposes of treatment. Other Professional Privileges a. Patient doctor b. Clergy-Parishioner: only for purposes of spiritual counseling. c. Journalists: have a qualified privilege that allows, them to protect their sources. State Secrets Official Information a. Qualified privilege. b. Privilege is Qualified and Balanced: Informers Identity a. Qualified privilege. b. Note: requires balancing Privilege Against Self-Incrimination i. 5th Amendment, federal and state, protects witness from being, compelled ii. To give testimony that may be incriminating. b. Persons protected c. Testimonial d. Incrimination e. Immunity f. Adverse Inferences n. o. p. q. r. 13 of 15

Griffin: violation of due process for court, to instruct jury that they should, draw and inference of guilt against a, criminal defendant because he doesnt, take the stand. ii. Note: Griffin doesnt apply in civil cases. g. Act of Production h. Required Reports i. Note: courts find no violation of privilege, where government can show reports were required for genuine regulator purpose. Chapter 15 Burdens and Presumptions O. Burdens and Presumptions 1. Two Meanings of Burden of Proof a. Burden of Production b. Burden of Persuasion 2. Three Common Standards of Proof a. Preponderance of the Evidence b. Clear and Convincing c. Beyond a Reasonable Doubt 3. Burdens of Pleading, Production, and Persuasion Generally Coincide 4. Criminal Cases a. Prove beyond a reasonable doubt (highest standard). 5. Inferences 6. Presumptions 7. Contesting Basic Fact 8. Contesting Presumed Fact a. Thayer View FRE 301 i. FRE adopts this bursting bubble view, ii. Where presumption disappears, iii. When counterproof is simply offered, iv. That is sufficient to support a jury, v. Finding of non-existence of presumed fact. b. Morgan View i. Presumption doesnt disappear in face, ii. Of evidence contesting presumed fact, iii. And instead presumption shifts, iv. Burden of persuasion to opponent, v. To establish non-existence of presumed fact. 9. State Presumptions in Federal Civil Cases 302 10. Presumptions in Criminal Cases 11. Inferences in Criminal Cases Chapter 16 Judicial Notice P. Judicial Notice a. FRE 201 Covers only judicial notice of adjudicative facts. 2. Substitute for Evidence 3. Four Concepts 14 of 15

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a. Adjudicative facts 201, b. Basic facts (communicative and evaluative), c. Legislative facts, d. Law Adjudicative Facts 201 a. Facts to which law applied, typically for fact finder, b. Defined: adjudicative if party would be, required formally to prove it if notice not taken Beyond Reasonable Dispute 201(b) Generally Known Verifiable Initiating Notice Opportunity to be Heard When Notice Can be Taken Instructing the Jury 201(g) a. Criminal cases, jury instructed, NOT required to accept the noticed fact. b. 201(g) doesnt allow mandatory notice on anything in criminal case. Basic Facts a. Communicative b. Evaluative Legislative Facts Notice of Law

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