你在这里

首页 » 合同管理 » 法律英语

Chapter 8 Procedural Considerations

作者 lawyer_qiu on 星期五, 09/06/2013 - 21:03

Chapter 8 Procedural Considerations

  1. Burdens of Proof
  1. Burden of Producing or Going Forward with Evidence
  • Produce Sufficient Evidence to Raise Fact Question for Jury

This defines the burden of one party to introduce sufficient evidence to avoid judgment a- gainst her as a matter of law. It is the burden of producing sufficient evidence to create a fact question of the issue involved,so that the issue may appropriately reach the jury. The burden of producing evidence is a critical mechanism for judicial control of the trial. Although the'burden is usually cast upon the party who has pleaded the existence of the fact, the burden as to this fact may shift to the adversary when the pleader has discharged her initial duty.

(2 )Prima Facie Case May Shift Burden of Production

Consider Plaintiff v. defendant in a negligence action. Plaintiff offers evidence in her case - in - chief of Defendant’s negligence. Defendant’s motion for a nonsuit made at the con­clusion of Plaintiffs case is denied. This denial reflects a judicial ruling that Plaintiff has made out a prima facie case of Defendant’s negligence. Put it another way,it means that Plaintiff has met her burden of going forward with evidence on the negligence issue.

  1. Burden of Persuasion( Proof)
  1. Determined by Jury after All Evidence Is in

This is what usually meant when the term" burden of proof" is used. This burden becomes a crucial factor only if the parties have sustained their burdens of production and only when all the evidence is in. When the time of decision comes, the jury must be instructed how to decide the issue if their minds remain in doubt. There are no tie games in the litigation process. Either the plaintiff or the defendant must win. If,after all the proof is in,the issue is equally balanced in the minds of the jury, then the party with the burden of persuasion must lose.

  1. Jury Instructed as to Which Party Has Burden of Persuasion

The burden of persuasion does not shift from party to party during the course of the trial simply because it need not be allocated until it is time for a decision by the trier of fact. The ju­ry will be told which party has the burden of persuasion and what the quantum of proof should be. The jury is never told anything about the burden of going forward with evidence because that burden is matter for the judge alone.

  1. Presumptions

A presumption is a rule that required that a particular inference be drawn from an ascer­tained set of facts.-It is a form of substitute proof evidentiary shortcut in that proof of the pre­sumed fact is rendered unnecessary once evidence has been introduced of the basic fact that gives rise to the presumption. Presumptions are established for a wide variety of overlapping pol­icy reasons. In some cases, the presumption serves to correct an imbalance resulting from one party’s superior access to the proof on a particular issue. In others, the presumption was created as a time saver to eliminate the need for proof of a fact that is highly probable in any event. In other words, the inference from the basic fact to the presumed fact is so probable and logical that it is sensible to assume the presumed fact upon proof of the basic. In still other situations, the presumption serves as a social or economic policy device. It operates to favor one contention by giving it the benefit of presumption and to correspondingly handicap the disfavored adversary.

  1. Effect—Shift Burden of Production

Federal Rule 301 provides that a presumption imposes on the party against whom it is di­rected the burden of going forward with evidence to rebut or meet the presumption. A presump­tion does not, however, 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.

  1. Rebutting a Presumption

A presumption is overcome or destroyed when the adversary produces some evidence con­tradicting the presumed fact. In other words, the presumption is of no force or effect when suffi­cient contrary evidence is admitted. This is federal view adopted by Federal Rule 301 except where state law provides the rule of decision.

  1. Specific Presumptions

The following are common rebuttable presumptions.

  1. Presumption of Legitimacy

The law presumes that every person is legitimate. The presumption applies to all cases where legitimacy is in dispute. The mere fact of birth gives rise to the presumption. The pre­sumption is destroyed by evidence of illegitimacy that is" clear and convincing. " For example, the presumption is overcome by proof of a husband’s impotency,proof of lack of access,or the negative result of a properly conducted blood grouping test.

  1. Presumption Against Suicide

When the cause of death is in dispute, a presumption arises in civil (not criminal) cases that the death was not a suicide.

  1. Presumption of Sanity

Every person is presumed same until the contrary is shown. The presumption of sanity ap­plies in criminal as well as civil, cases.

  1. Presumption of Death from Absence

A person is presumed dead in any action involving the property of such person, the con­tractual or property right contingent upon his death,or the administration of his estate,if;

  1. The person is unexplainably absent for a continuous period of seven years ( death is deemed to have occurred on the last day of the seven - year period) ;and
  2. He has not been heard from,or of,by those with whom he would normally be expected to communicate.

(5 ) Presumption from Ownership of Car—Agent Driver

Proof of ownership of a motor vehicle gives rise to the presumption that the power was the driver or that the driver was the owner’s agent.

  1. Presumption of Chastity

There is a presumption that every person is chaste and virtuous.

  1. Presumption of Regularity

 

The general presumption is that no official or person acting under an oath of office will do anything contrary to his official duty, or omit anything that his official duty requires to be done.

 

  1. Presumption of Continuance

Proof of the existence of a person, an object, a condition, or a tendency at a given time rai­ses a presumption that it continued for as long as is usual with things of what nature.

  1. Presumption of Mail Delivery

A letter shown to have been properly addressed, stamped, and mailed is presumed to have been delivered in the rule due course of mail. The presumption is said to be based upon the probability that officers of the government will perform their duty.

  1. Presumption of Solvency

A person is presumed solvent,and every debt is presumed collectible.

  1. Presumption of Bailee’s Negligence .

/ Upon proof of delivery of goods in good condition to bailee and failure of the bailee to re­turn the goods in the same condition,there is a presumption that the bailee was negligent.

  1. Presumption of Marriage

Upon proof that a marriage ceremony was performed, it is presumed to have been legally performed and that the marriage is valid. A presumption of marriage also arises from cohabita­tion.

ID. Relationship of Parties, Judge,and Jury

  1. Party Responsibility

Ours is an adversarial adjudicative process and so,the focus is on party responsibility or, perhaps what is more to the point,on lawyer responsibility. Very little happens in the litigation process unless some lawyer makes it happen by filing pleadings and motions, by initiating dis­covery , by entering into stipulations, by calling witness and offering exhitbits at trial, or by inter­posing objections to the admission of evidence. In other words, the parties, through their law­yers, frame the issues in a litigation by making allegations, admissions, and denials in their pleadings, and by entering into binding stipulations. They assume the burden of proving the is­sues they have raised. And then,by deciding which witnesses to call to the stand and what tan­gible exhibits to introduce (and by deciding to what they will object) ,they control the flow of evidence. But the parties and their lawyer are not the only ones to be allocated important re­sponsibilities in the adversary trial process.

  1. Court - Jury Responsibility

Under our system,the trial court is more umpire than advocate. The trial judge’s primary responsibility is fairly superintend the trial; the judge is not permitted to become a partisan in it. As a general rule, questions of law are for the trial court to deal with, and questions of fact determination are for the jury, although trial judges frequently encounter the necessity of making preliminary fact determinations in connection with such matter as the admission or exclusion of evidence.

  1. Preliminary determination of admissibility
  1. Rule of the Judge

Before the judge allows the proffered evidence to go to the jury, she must find that the pro­ponent of the proffered evidence has introduced evidence sufficient to sustain a finding of the existence of the preliminary fact. The court may instruct the jury to determine whether the pre­liminary fact exists and to disregard the proffered evidence if the jury finds that the preliminary fact does not exist. Such an instruction may be desirable if the trier of fact would otherwise be confused,but with most questions of conditional relevancy the instruction will be unnecessary, since a rational jury will disregard these types of evidence anyway unless they believe in the ex­istence of the foundational fact. If the judge allows the introduction of evidence and then subse­quently determines that a jury could not reasonably find that the preliminary fact exists, she must instruct the jury to disregard that evidence.

  1. Preliminary Facts Decided by Judge
  1. Facts Affecting Competency of Evidence

The question of the existence or nonexistence of all preliminary facts other than those of conditional relevance must be determined by the court. In most cases, the questions which must be decided by the judge involve the competency of the evidence or the existence of a privilege.

  1. Requirements for Privilege

Preliminary facts to establish the existence of privilege must be determined by the court. This must be so or else a privilege might be ignored merely because there was sufficient evi­dence (and this might not be a great deal)for a jury to find it did not exist.

  1. Requirements for Hearsay Exceptions

All preliminary fact questions involving the standards of trustworthiness of alleged excep­tions to the hearsay rule also are determined by the court.

  1. Testimony by Accused Does Not Waive Privilege against Self - Incrimination

An accused may testify as to many preliminary matter(e. g. ,circumstances surrounding al­legedly illegal search) without subjecting herself to having to testify generally at the trial. Fur­thermore, while testifying upon a preliminary matter,an accused is not subject to cross - exami­nation on other issues in the case.

  1. Judicial Power to Comment upon Evidence

The trial judge is expected to marshal or summarize the evidence when necessary. Howev­er, in most state courts,the trial judge may not comment upon the weight of the evidence or the credibility of witnesses. In federal court,the trial judge has traditionally been permitted to com­ment on the weight of the evidence and the credibility of witness.

  1. Power to Call Witness

The judge may call witness upon her own initiative and may interrogate any witnesses who testify but may not demonstrate partisanship for one side of the controversy.

( 6) Rulings

A trial judge has an obligation to rule promptly on counsel’s evidentiary objections and, when requested to do so by counsel,to state the grounds for her rulings.

  1. Instructions on Limited Admissibility of Evidence

When evidence that is admissible as to one party or for one purpose, but inadmissible as to another party or for another purpose, is admitted, the trial judge, on request, shall restrict the evidence to its .proper scope and instruct the jury accordingly, e. g. /'Ladies and gentlemen of the jury,the testimony that you have just heard is receivable against the defendant Bushmat on­ly and will in no way be considered by you as bearing on the guilt or innocence of the co-de­fendant Lishniss. "

分类: 
法律英语
  • 浏览 9179 次