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Evidence
Seton Hall Unversity School of Law
Risinger, D. Michael

Evidence Outline
Advisory System is not a truth finding system: Doesn’t lend to truth while it may seem to, in actually it encourages falsehoods as witnesses are discredited with vigor being cross examination. Plus the distinction between a P’s witness and a D’s witness creates further incentive to view the trial process as not seeking out the truth. Plus the fact that the government does not provide any monetary aid to the victim when an improper win occurs is indicative of the truth not winning out in the end. Frank, Courts on Trial: Myth and reality in American Justice.
Note on Rule Making in New Jersey and Winberry v. Salisbury, 5 N.J. 240 (1950): In Winberry, the N.J. S. Ct. held that evidence and procedural rule making power in New Jersey is constitutionally vested in the New Jersey Supreme Court and the court has held that legislation is ineffective to override judicially prescribed procedure. Because the ruing appears to be contrary to the intent of the 1947 N.J. Constitution, the Legislature refuses to recognize the decision as binding, thus each time a new rule is promulgated by either branch, there is a potential constitutional crisis.
C. Purpose of the Rules – Rule 102: Both the FRE and the NJRE purport to embody the “rectitude of decision” or “search for the truth” model. However, in practice, because of the intensely adversarial nature of American justice (approaching the “combat model”), this noble ideal is often trampled in the name of zealous advocacy. Other official goals of the Rules are efficiency (money and time) and the “growth of the law of evidence.”
F.R.E. 102. Purpose and Construction
These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.
N.J.R.E. 102. Purpose and construction
These rules shall be construed to secure fairness in administration and elimination of unjustified expense and delay. The adoption of these rules shall not bar the growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.
II. The “Burdens of Proof”
A. Generally: The allocation of the various burdens in a trial are NOT generally determined by the Rules of Evidence. Rather burden allocation is a question of statute, and more often caselaw.
2. Several factors influence the allocation of a particular burden:
a. who is attempting to change the status quo (most important),
b. whether certain evidence is more readily available to one side or the other, and
c. social and public policies underlying the substantive law.
3. There are three distinct burdens allocable during a trial: (1) the Burden of Pleading, (2) the Burden of Production, and (3) the Burden of Persuasion. The term “Burden of Proof” is imprecise and has been used to mean both the burdens of production and of persuasion. It is the stuff of TV and should be avoided, except when referring to all the burdens and it is clear you are dong so, or in speaking to the jury. In addition to these three burdens, there is the Burden of Objection.
B. The Burden of Pleading: This burden almost always falls on the party seeking to change the status quo, it sets forth in advance the relevant issues in the case and which side is responsible for proving them. It is generally found in caselaw and not in statutes (although the cases often interpret the statutes). In civil cases, given “notice pleading” under FRCP 8, a high degree of factual specificity is not generally required, but there are exceptions (e.g., fraud under FRCP 9, civil rights cases in certain circuits). A party generally has the burden of pleading those matters he will be required under the substantive law to prove at trial, and consequently, the party with the burden of pleading usually has the burden of production. Whether a party has satisfied his burden of pleading is one of law for the judge, but to get a ruling, the adverse party must object – courts will not rule on this sua sponte.
C. The Burden of Production (of Producing Evidence): As noted above, the party with the burden of pleading on an issue generally has the burden of producing evidence sufficient to support a factual finding consistent with his claims. Every factual element of a claim or defense has a production burden associated with it. The purpose of the production requirement is to make the party with the burden come up with enough evidence to create a jury question – thus, the burden of production is linked to the burden of persuasion because how much evidence is needed to satisfy the burden will vary with the standard of proof. Failure to satisfy this burden for each element will usually result in a directed verdict or some other preclusive action against the party with the burden.
1. Procedural Mechanisms for Enforcing the Burden of Production and the “Sufficiency of the Evidence” Ruling: At the close of a party’s case, the other side may attack the sufficiency of the producing party’s evidence by means of a motion for a directed verdict (JMOL under FRCP 50), a demurrer to the evidence, or a motion to dismiss. This requires a judge to make a sufficiency determination. The question is always whether the party with the burden has produced enough to create a question for the jury – a very low standard. According to Prof. Risinger, the “sufficiency standard” is articulated as:
In light of all the evidence admitted on each element, could a reasonable jury find, to the appropriate standard of proof (see infra), that what the party with the burden of production is alleging is true.
A motion for summary judgement may also, after Matsushita, require the party with the burden to point to the existence of evidence to survive the motion, giving the opponent a blueprint of other side’s case – it is thus a powerful tactical tool. In addition, a JNOV is really a directed verdict after the fact and is in reality a post hoc sufficiency determination.
D. The Burden of Persuasion: “The burden of persuasion is a rule of decision that informs the decision maker how to decide a case in light of the uncertainties that inevitably will accompany the presentation of evidence.” The burden of persuasion is also referred to the “standard of proof,” because it is not really a “burden” but rather the risk of non-persuasion. The burden of persuasion is generally allocated to the plaintiff or moving party, who must prove all facts necessary to justify a verdict or judgement on their behalf. There are exceptions such as affirmative defenses that have an attached burden of persuasion. However, states are free to allocate the burdens in civil cases any way they like. In criminal cases, the burden may not shift to a defendant if dong so would require him to negative an element of the offense. Who bears the risk of non-persuasion is relative, if one party has the burden of proving a fact is more than 50% likely to be true, the other side can be said to have the burden of proving that it is more that 50% chance that it is untrue. There are generally three standards of proof, two in civil cases, and one in criminal cases described in “quasi-mathematical” language.
1. Civil Burdens of Persuasion:
a. “Preponderance of the Evidence”: The normal burden of persuasion in all civil cases. It is generally understood to mean “more than a 50% chance of being true,” although one study found that jurors often set the probabilistic number as high as 70% or 80%
b. “Clear and Convincing Evidence”: In some civil actions where the complaint is based on conduct that is also proscribed by the criminal statutes, the standard is raised to require “clear and convincing” evidence.
2. Criminal Burden of Persuasion- “Beyond a Reasonable Doubt”: The

technically come in two flavors, rebuttable burden of production presumptions, and rebuttable burden of persuasion presumptions. FRE 301 and NJRE 301 purport to eliminate the latter, but it is unclear if judicially created burden of persuasion presumptions are still valid.
a. Rebuttable Burden of Production Presumptions: These are procedural devices that shift the burden of producing evidence on the disputed fact to the other side. Once a proponent has established fact BF (a question for the jury), the burden shifts to the other side to produce evidence negating that proponent’s evidence.
i. How Much Rebuttal Evidence? The FRE and NJRE adopt Professor Thayer’s “bursting bubble” standard for what amount of rebutting evidence is sufficient to eliminate the presumption: Once the proponent has produced sufficient evidence so that a reasonable juror could find to the appropriate standard of proof that the BF exists, the opponent must produce evidence sufficient to permit a reasonable juror to be convinced of the contrary of the BF (its non-existence). This standard has not been uniformly applied in courts, some only requiring any rebuttal evidence to “burst the bubble,” others requiring “credible” evidence, or even a preponderance of the evidence. Judge Weinstein correctly points out that the appropriate standard should be a sufficiency standard, see supra.
(a) Failure to produce sufficient rebutting evidence will result in the court instructing the jury that the proponent has conclusively established the PF if they find that the proponent has proven BF (“If you find that it is more probable than not that the bailed article was delivered in good condition, you must find that the bailor was negligent. The burden of proof is on the bailee.”). In this sense rebuttable burden of production presumptions are in effect directed verdicts on the presumed fact.
(b) If the opponent produces sufficient rebuttal evidence, the presumption disappears completely (“If you find, from all the evidence, that it is more probable that the bailee was negligent, then you will find that the bailee was negligent; otherwise, you will find that the bailee was not negligent. The burden of proof is on the bailor.”). Note however, that nothing prohibits a judge from commenting on the inferential link underlying the presumption in the first place (assuming judicial comment is permitted) (“It is a reasonable inference that something delivered in good condition will generally remain so without some intervening cause.”). Moreover, the judge may even comment that the bailee is in a better position to explain what happened than the bailor.
(c) Presumption Instructions in Criminal Cases – Constitutional Limits: In assessing the constitutionality of a presumption instruction, courts will focus on the precise language used by the judge to the jury. If the instructions could be understood to shift the burden of persuasion on any element of the crime to the defendant (i.e., appears to require him to negate an element of the offense), or to require the prosecution to meet a standard less than “beyond a reasonable doubt,” it is unconstitutional.