Monday, October 20, 2014

For Wednesday

Monday audio.

We will finish Rulings on Evidence and the remaining problems.

We then begin Hearsay, with Introduction to Hearsay. Be sure to read the Advisory Committee's introductory note; what were the possible approaches to hearsay evidence, what are the problems with each, and why did the Committee settle where it did. Skim through all the hearsay rules as a whole to see how they all fit together. Then look closely at FRE 801(a), (b), and (c), which provides the basic definition of the concept.

Thursday, October 16, 2014

More on presumptions

In response:

If the presumption is rebuttable (as the overwhelming majority of presumptions you ever will deal with are), then evidence against both the basic and presumed facts is relevant no matter what, since the defendant has the option in how to rebut the presumption. In the rare case that the presumption is irrebuttable, the defendant could argue that once he has offered evidence and met the burden of production against one of the basic facts, evidence against the presumed fact is also relevant, just in case the presumption falls away. But the jury will be instructed to focus on the presumption first and may never have a chance (if they follow instructions, as we assume they do) to consider the evidence against the presumed fact.

From our paternity hypo (assuming an irrebuttable presumption): Husband carries his burden on the basic facts. Wife offers evidence 1) that they were not legally married (rebutting that one basic fact) and 2) DNA evidence that someone else is the father (rebutting the presumed fact); the court allows all of that evidence in. But the presumption is still in play, depending on how the jury resolves the fact of marriage, the one basic fact in dispute. So the court likely would instruct the jury as follows: "If you find that they were legally married, you shall find that Husband is the father." And if the jury finds they were legally married, it never will consider the DNA evidence. The court also may issue a second instruction, to the effect of "If you do not find they were legally married, then you may consider all the evidence to find by a preponderance whether Husband is the father."

Wednesday, October 15, 2014

Some thoughts and a questions about evidence attacking a presumed fact.

As the proponent of the basic facts for an irrebuttable presumption, you cannot make a pretrial motion to exclude evidence that attacks the presumed fact. This is because the evidence that attacks the presumed fact is relevant unless and until you meet your burden of production of the basic facts (and opposing counsel fails to meet the now shifted burden of production).

So, taking the example of an irrebuttable presumption of paternity used in class, if I wanted to exclude DNA evidence, I cannot do so with a motion in limine. I have to wait until I have established the presumed fact by meeting my burden of production on the basic facts (assuming that opposing counsel does not meet their burden of production on opposing the basic facts). Now that the presumed fact of paternity is established, the DNA evidence is no longer relevant and is thus inadmissible under FRE 401.

If opposing counsel attacks at least one of the basic facts, and they meet their burden of production (sufficient to support a finding/that a reasonable jury could find), can the DNA evidence come in?

I think it is admissible because when the basic facts of an irrebuttable presumption are in dispute and both sides have met their burden of production, the presumed fact is not established. Thus, the DNA evidence is relevant and admissible under FRE 401.

Am I correct that if this were a rebuttable presumption, then the DNA evidence could come in regardless of the basic facts?

For Monday

Wednesday audio. We will spend a few minutes reviewing presumptions, so please bring any questions with you.

A quick word about believability of Mrs. Young and other witnesses. The party trying to fight the presumption (e.g., the Insurance Co.) still will want to impeach Mrs. Young about her interest in the case and try to undermine her credibility.  The problem for the Ins. Co. is about burdens of production and the effect of the presumption, which is to shifts that burden. And the party with the burden of production cannot rely on disbelief of witnesses, but must offer affirmative evidence in support of its position. It is not enough for the Ins. Co. (which now has the burden of production) to argue that the jury might disbelieve Mrs. Young. So, yes, cross-examine Mrs. Young and ask about her interest in the case--it will be important for the jury to hear. But it cannot alone meet the burden of production.

We then will turn to Rulings on Evidence, which will focus on how evidentiary issues get argued. Note the two assigned statutes.

Monday, October 13, 2014

For Wednesday

Monday audio.

No new reading. We will continue with Presumptions. Is FRE 301 rebuttable or irrebuttable? What does "Bursting Bubble"mean at Common Law and how and why does FRE 301 depart from it. Do Question # 105 with care, going through each of the permutations and focusing on the appropriate jury instruction as to the presumed fact (thus the reason we call them "instructed inferences"). In addition to the problems in the book, consider: What if Mrs. Young offers no evidence of her diligent and unsuccessful efforts? What if Mrs. Young offers evidence that Jerry only gone for 6 years? Note Unenacted FRE 303, which deals with criminal presumptions; note the ways they vary from civil.

Wednesday, October 8, 2014

For Monday

Wednesday audio.

We will continue with Process, Burdens, and Presumptions. Review FRCP 50 and FRCrP 29 (both on Blog) with care. Review the problems and rules. What do presumptions (also called instructed inferences) do? What is the difference between a rebuttable presumption and an irrebuttable presumption?

Also, be ready to analyze the following presumption:

A child born within 300 days of a married couple living together as husband and wife is a product of that marriage.

Monday, October 6, 2014

For Wednesday

Monday audio.

We will do some final questions for Impeachment. On Question # 94, we encounter the line between character evidence for impeachment and character evidence for substantive purposes; so think about what precisely you can prove through this character evidence. In working through the question, imagine some changes: What if Joe were on trial for perjury? What if Chris were offering testimony of Joe's peaceful character?

We then move to Process, Burdens of Proof, and Presumptions; this section will situate what we have been talking about within the trial process and how trials function. Note the several provisions to be downloaded from the Blog.

Friday, October 3, 2014

Smoker, ctd.

This post skips the important initial question: Why is someone's status as a smoker (or the fact that he smokes) relevant? What are you trying to prove? And what is the inferential chain that gets you from the evidence to that fact?

If the simple fact that he is a smoker is somehow a fact of consequence, then you can offer the fact that he is a smoker to prove that he is a smoker. There is no character/prior acts problem here, because you are not trying to show action in accordance on a particular occasion ("he smokes/he's a smoker, so he smoked that day)--which, again, is the only thing that FRE 404 prohibits. Instead, the substantive law has made his status as a smoker relevant, so evidence to show he smokes proves that fact, without having to pass through the prohibited character inference.

For another example of this: One way to establish the government's liability for the unconstitutional acts of its police officers (e.g., using excessive force) is by showing a pattern and practice of similar unlawful behavior by that officer or other officers within the department. The only way to prove that is to offer evidence of those prior incidents. Again, no character/other acts problem, because the prior incidents are not being used to show action in accordance (past excessive force to show there was excessive force this time); they are being use to show that those prior incidents occurred, a fact that is of consequence under the substantive law.