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Villanova University School of Law
Moreland, Michael P.



Keeping Evidence out
· Default rule-Evidence IS admitted.
§ Opposing party must object to prevent the evidence from coming in. (rule 103)
· Rule 104a-Judge makes all determinations on admissibility of evidence
§ -Is judge bound by rules of evidence in hearing argument on admissibility?
· -NO (except for privileges)

Rule 611 objections
-611b-cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination

Judicial Notice

· Judicial notice is a way for the jury to take things for granted
· Judicial notice needs to be precise, and specific to itself
o Can have an almanac prove that the moon was not full one night, but not take that fact and turn it into a judicial notice that someone couldn’t see at night
· Judicial notice is a substitute for evidence
4 Facts that are subject to Judicial Notice


only one governed by FRE
basically the facts that go to the jury for a jury trial
These facts are not to be based on personal knowledge, but rather information brought through the circumstances of the trial. Virgin Islands v. Gereau
In criminal cases, judicial notice still exists, but is not binding in order to preserve jury nullification. US v. Jones- see also FRE 201(f)


Common knowledge (nods, expressions)
Generally no need for judicial notice here


Interpretation of a statute or constitutional provision


Interpretation of case law or common law
Cannot allow for jury nullification for these facts-US v. Gould

o prof thinks Gould was too quick to determine that the facts were matters of law.
o most often, it looks like many facts are adjudicated facts
2 Alternate bases for judicial notice (rule 201)

Facts generally known in the locale, e.g.

Lancaster Ave is a heavily traveled street
The Eagles have never won a Super Bowl

Facts not generally known, but ascertainable from references of indisputable accuracy

closing price of IBM on June 3
High tide times on Jersey shore on May 22

Burden of Proof and Presumptions

Different burdens

Burden of pleading- for both parties- for an issue to be brought at trial

i. Clear statement of claim

Burden of production- to say a party bears the burden of production is to say that without producing the evidence, she will lose

i. aka “burden of going forward”, aka “risk of dismissal”
ii. often this is placed on the defendant

Burden of persuasion- to say a party bears this burden is to say that she can only win if the evidence persuades the trier of the existing facts that she needs in order to prevail.

i. Often shifts to the prosecution
ii. Comes in different sizes depending on the case
1. lowest-preponderance of the evidence
2. middle-clear and convincing evidence (common with elements within a claim
3. highest-beyond a reasonable doubt

If motion is denied and defendant puts on his case, jury will decide case


Slippery to define
One example of the use of presumptions, which is misleading, is a rule of substantive law
Another misleading use is a permissive presumption, or permissible inference

Permissive presumption is what is used to assume B if A happened
“If A is established, then trier of fact must find B”
Important to know the relationship between the appropriation of burdens and the presumption—this is the part that is hard

i. Presumptions have an effect on where burdens are placed
Relationship between burdens and presumptions

Presumptions have this effect on where the burden is placed
A presumption is a judge-mandated conclusion that the jury must reach if it finds certain premise facts
Properly speaking, presumptions only exist in civil cases
However, historical development has mixed up the language

Today we say there are presumptions in criminal cases, but their effect is different
These are actually permissive comments made to the jury, rather than mandates
Unlike a presumption, a “permissive inference” is merely a nudge

i. A conclusion the jury may draw if it wishes
ii. Judge tells them they may draw it
· Based on case precedent

Presumptions are based on premises, called trigger facts
The judge tells the jury that if they find X and Y, they must (criminal-may) find Z
Trigger facts: 1. Marriage 2. Child born during the marriage

i. Presumed fact- husband is child’s father
Criminal Presumption
· Presumptions and permissible inferences are handled in the same way
o If premise facts are raised by the evidence, the judge says in the final instructions, “if you find x and y, you may conclude z”
· Patterson v. New York
o Shifting the burden of proof to the Defendant of a mitigating circumstance affirmative defense does not violate the Due Process Clause of the U.S. Constitution.
· Sandstrom v. Montana
o The effect of a presumption in a jury instruction is determined by t

o ignore the item if it believes it is inauthentic
· FRE 611 controls authentication with regards to voir dire witnesses
o It is generally improper to take the authenticating witness on voir dire prior to time when the document or object is offered in evidence
· Judge is gatekeeper of authentication (as usual)
o But jury can still ignore
o Judge is not bound by rules of evidence (except rules of privilege)
o However jury is ultimate decider of all facts
· FRE 901 controls ways to authenticate
o it assumes the authentication requirement and sets out a lists of ways to satisfy it. However, no provision expressly imposes such a requirement
o FRE 901(a) provides that “the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims”
o Ways to authenticate
1. Testimony from a lay witness with knowledge
2. Affidavit testimony on authenticity
3. Comparison by expert witness or by jury
4. Distinctive characteristics
5. Voice authentication
6. Phone calls
· Testimony that x’s number was dialed
7. Self Authenticating docs
· Public docs under seal; Public docs not under seal, but with seal attestation sheet attached;Government publications; Newspapers and periodicals; Trademarks on goods; Docs with private signature
· US v. Johnson
o Person accused of axing someone up. Guy who was axed was testifying that he was “pretty sure” the ax in evidence was the ax used against him
o Even though the testimony by victim was not definitive, court found that a reasonable jury could conclude that it was authentic.
§ This shows that the testimony authenticating the evidence does not need to be iron-clad
· US v. Howard-Arias
§ “A Missing link does not prevent the admission of real evidence, so long as there is sufficient proof that the evidence is what it purports to be and has not been altered.”
· US v. Bagaric
o The evidence can be authenticated entirely by circumstantial evidence
· When evidence may not be enough
o US v. Pool
§ There was no recording of a drug dealer using his nickname