Transcript Burden of Proof - Hastings College of the Law

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.
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
Burden of Proof
First Distinct Issue:
1) which party must prove a fact
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 nonexistence of which is essential to the claim
for relief or defense asserted.
 Exceptions may be created by
constitutional, statutory or decisional law
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
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

Burden of Proof
Second Distinct Issue:
2) the degree to which that fact must be
proved
-- the standard of proof
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)
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
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.

Burden of Proof (cont.)
Standards of proof – criminal cases
 Penal Code § 1096 – proof beyond a
reasonable doubt

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.
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.
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
Burden of
Proof/Persuasion/Production

Problems in terminology –
 What
 Is
 Or
does “Burden of Persuasion” mean?
it the same as “Burden of Proof”?
is it the same as “Burden of Production”?
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
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.

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.

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
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?
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
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)
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.
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
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
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
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.
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.
Presumptions (cont.)
Rebuttable presumptions, burden of
producing evidence:

Evid. Code §§ 630-647
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.

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.

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.
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;
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
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.
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.
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
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.
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.
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.
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
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
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
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