Evidence – Kirgis – Fall 2013
I. Introduction to Trial [102, 104, 103]
A. Burdens of Proof
1. Burden of Production: evidence sufficient to support a finding (prima facie case)
-enough evidence has been produced to allow the jury to reach a verdict.
-the prosecutor in a criminal case/plaintiff in civil case, has the burden of proof.
-Must put in sufficient evidence to support a finding on each element of the charge. (must be so that the jury could potentially make a finding).
-if the burden is not met, the case is dismissed, because there’s not enough evidence for a reasonable jury to decide, so the case must be dismissed
-if the burden is met (there is sufficient evidence produced by the prosecution), it is passed along to the jury to make their decision
The burden of production, sometimes called the “burden of going forward with evidence,” refers to a party’s responsibility to introduce evidence at trial. Technically, it is the risk of
nonproduction. The judge (never the jury) determines whether this burden has been satisfied. There are two possible adverse consequences if a party fails to satisfy its burden of production:
(1) the party may suffer a directed verdict, or (2) in the case of an affirmative defense, the jury
may not be instructed on the defense. Both consequences take the issue away from the jury.
2. Burden of Persuasion: preponderance of evidence (civil) or beyond a reasonable doubt (criminal)
The burden of persuasion refers to the convincing force of the evidence. Technically, it is the
“risk of nonpersuasion.” Three common standards of proof are used to define the legally
required persuasive force of the evidence: (1) “proof beyond a reasonable doubt” (the highest standard); (2) “clear and convincing evidence” (an intermediate standard); and (3)
“preponderance of evidence” (more probable than not).
-the jury must believe beyond a reasonable doubt, based on the evidence presented
-criminal case: beyond a reasonable doubt
-ex) see FL homicide statute (regarding trayvon martin)—must believe beyond a reasonable doubt that Zimmerman had a motive etc.
-prosecution must prove each of the elements of a charge beyond a reasonable doubt.
-ex) see FL self defense statute—disproving self defense is effectively a part of proving the crime. The prosecution has the burden of proving beyond a reasonable doubt that it was not self defense. This is different than affirmative defenses, where the person who is using the affirmative defense has the burden of proof. However, here, the prosecution must prove beyond a reasonable doubt that it was NOT self defense.
-the burden of proof would’ve had to have been that he approached martin with force or with the threat of force in order for self defense to be not allowed
3. Preliminary Questions: questions that filter down what pieces of evidence should be included, and which shouldn’t.
-the judge decides what should be included and what shouldn’t
-the federal rules of evidence is the law of the preliminary questions
-there’s a fact, and the judge must decide whether or not that fact should be included as evidence
Application of Evidence Rules
Under Rule 104(a), the trial court is “not bound by the rules of evidence except those with
respect to privileges” when ruling on the admissibility of evidence. Accordingly, the judge may
consider affidavits and other hearsay information.
Burden of Proof on Preliminary Issues
As a general rule, the party offering evidence has the burden of persuasion on preliminary issues once an objection has been raised. Also as a general rule, the “preponderance of evidence” standard applies.
Conditional Relevancy:
Under Rule 104(b), the court does not decide questions of conditional relevancy using the
preponderance-of-evidence standard, as under Rule 104(a). Rather, the trial court determines only if sufficient evidence has been introduced “to support a finding of the fulfillment of the condition.” In effect, this is a prima facie standard. The difference is between a preponderance of evidence and evidence sufficient for a jury to find a fact by a preponderance of evidence, a rather subtle difference.
Hearing of Jury:
Rule 104(c) requires the trial judge to hold a hearing out of the presence of the jury when ruling on the admissibility of a confession. Rule 104(c) provides that hearings “on other preliminary matters shall also be conducted out of the hearing of the jury when the interests of justice require, or when an accused is a witness and so requests.”
Testimony by Accused:
Rule 104(d) limits the scope of cross-examination when a criminal defendant testifies on a
preliminary matter; such testimony does not subject the defendant “to cross-examination as to
other issues in the case.”
Weight & Credibility:
A basic axiom of trial practice is that the trial judge decides issues of admissibility and the jury
decides questions of weight and credibility. Rule 104(e) makes clear that a court’s admissibility ruling does not curtail the right of a party to dispute the reliability of admitted evidence before the jury.
2 types of preliminary questions:
-i. Exclusionary Rules: they may be relevant, but they’re bad evidence. Rule 104(a): Covers preliminary questions regarding exclusionary rules: Competence [of expert witnesses], privi
re’s a decision to allow the evidence in
-No plain error/ruling correct—AFFIRMED
-Plain error exists
-If a substantial right was affected—REVERSED
-If no substantial right affected—AFFIRMED
^odds are stacked against getting reversal of an evidentiary ruling
II. Relevance in General
A. Relevance and Materiality [401, 402, 104(b)]
Relevancy is the most pervasive concept in evidence law. It is the threshold issue for all
evidence. If the evidence is not relevant, it is excluded.
Federal Rule 401 defines relevant evidence (probative value). The rule must be read in
conjunction with Rules 402 and 403. Rule 402 makes relevant evidence admissible in the
absence of a rule of exclusion, and Rule 403 specifies the circumstances under which a trial court is permitted to exclude relevant evidence.
Special relevance rules. In some situations an issue recurs so frequently that the courts
developed categorical rules. For instance, character evidence is generally prohibited, although
there are important exceptions. Rules 404, 405, 412-15 deal explicitly with character. Similarly,
evidence of liability insurance is generally inadmissible; Rule 411 covers that issue.
Ancillary rules based on policy. Rules 407-410 are relevance rules of a different kind. They
involve the exclusion of relevant evidence based on external policy reasons – i.e., external to the
truth-seeking function of the trial. For example, subsequent remedial measures (Rule 407) are
excluded in order to encourage people to make repairs after accidents.
Rule 401 defines “relevant evidence” as evidence having any tendency to make the existence of
a material or consequential fact “more probable or less probable than it would be without the
evidence.” Rule 401's standard does not require that the evidence make a consequential (material) fact “more probable than not” (preponderance of evidence), but only that the material
fact be more or less probable with the evidence than without the evidence.
