Burden of Proof
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Burden of Proof

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Burden of Proof. 2 distinct issues:1) which party must prove a fact2) the degree to which that fact must be proved -- the standard of proof. Burden of Proof. First Distinct Issue:1) which party must prove a fact. Burden of Proof (cont.). Allocation:Evid. Code 500 except as otherwi
Burden of Proof

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1. Burden of Proof FRE ? no definition of ?Burden of Proof? Evid. Code ? 115. "Burden of proof" means the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court.

2. Burden of Proof 2 distinct issues: 1) which party must prove a fact 2) the degree to which that fact must be proved -- the standard of proof

3. Burden of Proof First Distinct Issue: 1) which party must prove a fact

4. Burden of Proof (cont.) Allocation: Evid. Code ? 500 ? except as otherwise provided by law, a party has the burden of proof as to each fact the existence or non-existence of which is essential to the claim for relief or defense asserted. Exceptions may be created by constitutional, statutory or decisional law

5. Burden of Proof (cont.) Allocation: Evid. Code ? 550 ? the burden of producing evidence as to a particular fact is on the party against whom a finding on that fact would be required in the absence of further evidence The burden of producing evidence as to a particular fact is initially on the party with the burden of proof as to that fact

6. Burden of Proof (cont.) Allocation: Courts may consider the knowledge of each party concerning the particular fact, the availability of evidence to each party, the most desirable result in public policy in terms of the absence of proof of the fact, and the probability of the existence of the fact. Examples: Res ipsa ? surgery patient Retirement policy ? certification of professors after age 70 Insurance coverage ? event falling within exclusion

7. Burden of Proof Second Distinct Issue: 2) the degree to which that fact must be proved -- the standard of proof

8. Burden of Proof (cont.) Standards of proof ? civil cases Preponderance of the evidence More probable than not Evidence on one side outweighs or preponderates over evidence on the other side Default standard (Evid. Code ?115)

9. Burden of Proof (cont.) Standards of proof ? civil cases Clear and convincing evidence High probability So clear as to leave no substantial doubt Sufficiently strong to command the unhesitating assent of every reasonable mind

10. Burden of Proof (cont.) CLEAR & CONVINCING EVIDENCE STANDARD Applies to certain types of actions, often where fundamental rights are at stake in a civil setting Examples: term of parental rights; establishing a conservatorship; injunctions to abate street gangs; abatement of obscenity; setting aside election results, etc.

11. Burden of Proof (cont.) Standards of proof ? criminal cases Penal Code ? 1096 ? proof beyond a reasonable doubt

12. Burden of Proof (cont.) A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his or her guilt is satisfactorily shown, he or she is entitled to an acquittal, but the effect of this presumption is only to place upon the state the burden of proving him or her guilty beyond a reasonable doubt.

13. Burden of Proof (cont.) Reasonable doubt is defined as follows: "It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.

14. Burden of Proof (cont.) Other Standards of proof: Arbitrary and capricious ? some evidence to support finding Probable cause ? strong suspicion of guilt Substantial Evidence ? must be relevant and reliable evidence Concept of sufficiency of the evidence ? reviewing court standard ? could be some evidence; or a rational basis; or substantial evidence

15. Burden of Proof/Persuasion/Production Problems in terminology ? What does ?Burden of Persuasion? mean? Is it the same as ?Burden of Proof?? Or is it the same as ?Burden of Production??

16. Burden of Proof/Persuasion/Production Problems in terminology ? Mendez uses ?Burden of Persuasion? to also mean ?Burden of Proof? Merritt and Simmons do little with the burden of proof

17. Burden of Proof/Persuasion/Production FRE 301: 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.

18. Burden of Proof/Persuasion/Production Evid. Code ? 110. "Burden of producing evidence" means the obligation of a party to introduce evidence sufficient to avoid a ruling against him on the issue. Evid. Code ? 115. "Burden of proof" means the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court.

19. Burden of Proof/Persuasion/Production Treatises Witkin on California Evidence ? no category for burden of persuasion Simons California Evidence Manual ? no discussion of burden of persuasion Jefferson Evidence Benchbook ? refers to the need to persuade if one is the moving party on a motion or in closing arguments All three of these works extensively discuss the separate, but related, ideas of burden of proof and the burden of producing evidence

20. Burden of Proof/Persuasion/Production Motions to suppress: no warrant expectation of privacy with search warrant Miranda motion after evidence of proper warning and valid waiver Expert witness example no. 1 (defendant offers expert DNA evidence) Expert witness example no. 2 (defendant offers opinion evidence of lack of propensity to molest) Motion to impeach with priors ? prosecution moves, defense claims prejudicial ? who has burden of ?persuasion?? Chain of custody example Closing arguments Rebuttable presumption in employment case (St.Mary?s v. Hicks at 509 U.S. at pp 507-508; at pp. 509-510; at pp. 510-511 Celotex 477 U.S. at 322-323 (defendant moves for summary judgment ? has burden on motion but no burden of proof in case) Celotex at pp. 324-325 discussion of burden of proof and burden of producing evidence ? where exactly does burden of persuasion fit in here? Is it a synonym of burden of proof, which also means burden of production?

21. Presumptions FRE 301? default rule in federal court It only applies when some other provision does not It shifts the burden of going forward, but not the burden of proof FRE 302 ? State law governs presumptions in cases based on Diversity jurisdiction (similar to FRE 501 privileges and FRE 601 in determining witness competence) FRE has no presumptions that apply to criminal cases

22. Presumptions (cont.) Definitions: Evid. Code ? 110 -- Burden of producing evidence Evid. Code ? 115 -- Burden of proof Evid. Code ? 600 ? presumption and inference defined Evid. Code ? 601 ? classification of presumptions (3 kinds ?1) conclusive or rebuttable ? rebuttable either affects 2) burden of proof or 3) burden of producing evidence)

23. Presumptions (cont.) Evid. Code ? 600(a): A presumption is an assumption of fact that the law requires to be made from another fact or group of facts found or otherwise established in an action. A presumption is not evidence.

24. Presumptions Merritt & Simmons ?Learning Evidence: From the Federal Rules to the Courtroom? Most presumptions fit within 4 categories: 1. permissive inferences 2. burden of production shifting presumptions 3. burden of proof shifting presumptions 4. conclusive presumptions

25. Presumptions (cont.) 1. Permissive inferences ? with this type of presumption, the judge instructs the jury that it may infer one fact from another. e.g. CALJIC 204 ? consciousness of guilt

26. Presumptions (cont.) 2. Burden of production shifting presumptions Shifts the burden of producing evidence from one party to another A plaintiff in a civil action has two different burdens: Burden of proof ? persuade the jury that each element of claim is true Burden of producing evidence ? during case-in-chief plaintiff must produce enough evidence on each element of claim to get the case to the jury (to avoid a directed verdict) If a party successfully invokes one of these presumptions, the opponent must respond by producing some contrary evidence Once the opponent responds, the original party retains the burden of proof on the issue

27. Presumptions (cont.) Rebuttable presumptions, burden of producing evidence: Evid. Code ? 603 ? a presumption affecting the burden of producing evidence is a presumption established to implement no public policy other than to facilitate the determination of the particular action in which the presumption is applied.

28. Presumptions (cont.) Rebuttable presumptions, burden of producing evidence: Evid. Code ? 604 ? The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption.

29. Presumptions (cont.) Rebuttable presumptions, burden of producing evidence: Evid. Code ?? 630-647

30. Presumptions (cont.) Evid. Code ? 646 (a) As used in this section, "defendant" includes any party against whom the res ipsa loquitur presumption operates. (b) The judicial doctrine of res ipsa loquitur is a presumption affecting the burden of producing evidence.

31. Presumptions (cont.) Evid. Code ? 646 (c) If the evidence, or facts otherwise established, would support a res ipsa loquitur presumption and the defendant has introduced evidence which would support a finding that he was not negligent or that any negligence on his part was not a proximate cause of the occurrence, the court may, and upon request shall, instruct the jury to the effect that: (1) If the facts which would give rise to res ipsa loquitur presumption are found or otherwise established, the jury may draw the inference from such facts that a proximate cause of the occurrence was some negligent conduct on the part of the defendant; and (2) The jury shall not find that a proximate cause of the occurrence was some negligent conduct on the part of the defendant unless the jury believes, after weighing all the evidence in the case and drawing such inferences therefrom as the jury believes are warranted, that it is more probable than not that the occurrence was caused by some negligent conduct on the part of the defendant.

32. Presumptions (cont.) Evid. Code ? 646 - Hypo: patient unconscious during surgery ? scalpel left in incision Res ipsa - 3 conditions to be proved: 1) it is the kind of injury that ordinarily does not occur in the absence of negligence; 2) the injury was cause by an agency or instrumentality in the exclusive control of D. 3) the injury was not due to contribution by P.

33. Presumptions (cont.) Evid. Code ? 646 - Hypo: patient unconscious during surgery ? scalpel left in incision Res ipsa - Once 3 conditions are proved: D. now must produce evidence sufficient to support a contrary finding; If D. fails to do so, presumption attaches and jury must find D.?s negligence caused injury;

34. Presumptions (cont.) Evid. Code ? 646- Hypo: patient unconscious during surgery ? scalpel left in incision Res ipsa - Once 3 conditions are proved: If D. is able to produce evidence sufficient to support a contrary finding, the presumption disappears; Now proof of 3 conditions will support an inference that D.?s negligence caused the injury; This inference is then weighed by the jury against the evidence that D. produced to support a contrary finding

35. Presumptions (cont.) Evid. Code ? 646 Hypo: patient unconscious during surgery ? scalpel left in incision Now, the court may, and upon request shall, instruct the jury to the effect that: (1) If the facts which would give rise to res ipsa loquitur presumption are found or otherwise established, the jury may draw the inference from such facts that a proximate cause of the occurrence was some negligent conduct on the part of the defendant; and (2) The jury shall not find that a proximate cause of the occurrence was some negligent conduct on the part of the defendant unless the jury believes, after weighing all the evidence in the case and drawing such inferences therefrom as the jury believes are warranted, that it is more probable than not that the occurrence was caused by some negligent conduct on the part of the defendant.

36. Presumptions (cont.) Another example of burden of production shifting presumption: St. Mary?s Honor Center v. Hicks, 509 U.S. 502 (1993) ? Title VII suit-race discrimination claim ? Hicks proved in case-in-chief that 1) he was African American; 2) he was qualified for his position; 3) the Dept. of Corrections discharged him; and 4) a white man replaced him. These facts created a presumption of racial discrimination that shifted the burden of producing evidence to the employer Hicks proof was sufficient to withstand a motion for directed verdict The employer had to counter Hick?s case by producing its own evidence, or else Hick?s gets benefit of presumption and instruction from court to find for Hicks if jury believes facts 1-4.

37. Presumptions (cont.) Example of burden of production shifting presumption (cont.): If employer counters with evidence that Hicks was fired because of misconduct on the job, the presumption is dropped from the case Jury never hears about the presumption Now jury decides whether Hicks was fired because he was African American or because he committed workplace misconduct ? Jury can decide for either party, with many possible findings At all times, Hicks retains the burden of proof as to each element of his claim

38. Presumptions (cont.) 3. Burden of Proof shifting presumptions Similar to burden of production shifting presumption, but goes one step further and shifts burden of proof to other party Before burden shifts and presumption applies, jury must find facts supporting presumption to be true. Example: Just before declaring bankruptcy, debtors transfer assets to relatives and friends. Bankruptcy trustee sues claiming fraud. Once trustee proves ?badges of fraud?, burden of proof shifted to debtors to show that they did not act fraudulently. Jury gets instructed that if they find that trustee proved badges of fraud, debtors must prove no fraud by preponderance of the evidence. If debtors fail to meet this burden of proof, then jury must find for trustee.

39. Presumptions (cont.) Rebuttable presumptions, burden of proof: Evid. Code ? 605 ? A presumption affecting the burden of proof is a presumption established to implement some public policy other than to facilitate the determination of the particular action in which the presumption is applied, such as the policy in favor of establishment of a parent and child relationship, the validity of marriage, the stability of titles to property, or the security of those who entrust themselves or their property to the administration of others.

40. Presumptions (cont.) Rebuttable presumptions, burden of proof: Evid. Code ? 606 The effect of a presumption affecting the burden of proof is to impose upon the party against whom it operates the burden of proof as to the nonexistence of the presumed fact.

41. Presumptions (cont.) Rebuttable presumptions, burden of proof: Evid. Code ? 606 ? 660: The presumptions established by this article, and all other rebuttable presumptions established by law that fall within the criteria of Section 605, are presumptions affecting the burden of proof. Evid. Code ?? 660-670

42. Presumptions (cont.) 4. Conclusive presumptions: A.k.a. irrebuttable presumptions if the jury finds the facts giving rise to the presumption to be true, the jury is required to draw a particular inference Example: personal injury ?plaintiff wearing nightgown which catches fire and clings to plaintiff causing severe burns; if seller defendant can show that product complied with regulatory safety standards, conclusive presumption entitles seller defendant to judgment

43. Presumptions (cont.) Conclusive presumptions: Evid. Code ?? 620-624 Facts recited in an instrument Estoppel by own conduct Estoppel of tenant to deny title of landlord

44. Presumptions (cont.) Criminal cases ? Evid. Code ? 607. When a presumption affecting the burden of proof operates in a criminal action to establish presumptively any fact that is essential to the defendant's guilt, the presumption operates only if the facts that give rise to the presumption have been found or otherwise established beyond a reasonable doubt and, in such case, the defendant need only raise a reasonable doubt as to the existence of the presumed fact. If presumption lightens prosecution?s burden of proof, probably unconstitutional If jury is instructed on what it must find, probably unconstitutional


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