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Evidence
Wayne State University Law School
Slovenko, Ralph

EVIDENCE OUTLINE – MICHAEL QAQISH –
SLOVENKO – FALL 06’

ARTICLE II. JUDICIAL NOTICE – Chapter XI p. 735
Rule 201. Judicial Notice of Adjudicative Facts
Adjudicative Facts – 3 requirements for 1 kind of test (Varcoe v. Lee p. 735 – Cal. 1919)
i.      Fact must be a fact of common & general knowledge to someone of average intelligence
ii.      Must be well established and authoritatively settled, not subject to dispute
iii.      It must be within courts limits
BIG ISSUE EFFECT OF J.N.: Difference btwn. Criminal & Civil Cases
i.      CIVIL CASE : JURY MUST accept judicial notice as fatually binding
ii.      CRIMINAL CASE : FRE 201(g) states the in a criminal matter the jury MAY accept a judicial notice but MAY NOT


ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS – Chapter XII p. 757

Burdens in Civil – Rules:
301 – Presumptions in General in Civil Actions and Proceedings
i.      In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.
2 Burdens of Proof
i.      Burden of Persuasion (BP)
1.       Never Shifts
2.      Different Standards:
a.       Preponderance of the Evidence – Civil
b.      Clear and Convincing – In btwn. Criminal & Civil
i.      Case such as disbarment of attorney
ii.      Fraud – in some jurisdictions
c.       Beyond a Reasonable Doubt – Criminal
3.       Sometimes Allocated to Defendant in cases where:
a.       Defense is disfavored – Statute of limitations
b.       Defenant has better access to evidence –
c.       Defense is rare – duress in breach of K cases – too much litigation if P were to have to prove no duress occurred in K
ii.      Burden of Going Forward with Evidence (BGF)
1.       Party who bears the burden must offer sufficient evidence to the trial judge such that a reasonable jury could decide in that party’s favor on the element of the claim or defense that is in question
2.       P must give evidence to prove every element of a prima facie case
a.       IE. For a negligence case P must bring evidence to prove all parts – (IE duty, breach, causation, & damages.)
3.       Some Points
a.      Naked statistics not enough to prove BGF – Smith v. Rapid Transit p. 762 – Mass 1945 (Ct would not let jury make inference from stats alone)
Presumptions
Rules
i.      Rule 301 -Presumptions in General in Civil Actions and Proceedings
1.      In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.
ii.      Rule 302. Applicability of State Law in Civil Actions and Proceedings
1.      In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which State law supplies the rule of decision is determined in accordance with State law.
BASIC FACT
i.      A Presumption will not arise until a the basic fact that leads t

ng neither bad or good
vi.      Agency / Ownership of Vehicle
1.       Presumption is that driver/borrower of vehicle was taken with permission, thus owner responsible
vii.      Employee
1.       When one is doing work for another presumption that work is done in an agency relationship Not an independent contractor
viii.      Legitimacy of the Child
1.       Can be rebutted by non access
ix.      Child Custody Cases
1.       Presumption that child should not be divided
2.       Presumption in favor of mother
x.      Immigration
1.       If divorce happens within 2 years of citizen & non citizen considered fraudulent marriage
Types of Criminal Presumptions
i.      Permissive Presumption –
1.       If you find fact A then you MAY find presumption B
ii.      Mandatory Presumption – Subject to Constitutional Challenges
1.       If you find such a fact then you must make a presumption
2.       If you find fact A you MUST find presumption B
iii.      Conclusive Presumption
1.       This is a law of evidence rather then a presumption
2.       A minor is presumed to be unable to commit a crime if less then 8 years old
a.       Can not bring in evidence to change the law


ARTICLE IV. RELEVANCY AND ITS LIMITS – Chapter V – p. 367

401 – Definition of “Relevant Evidence”