Evidence Law (Su School Of Law)

Front 1

Bail hearing. The prosecutor wants to relate to the court what the victim said to the police. The prosecutor also wants to assert, based on an FBI rap sheet, that the defendant has six prior felony convictions. Defense objects, claiming the prosecutor is relying on hearsay (which is true). What ruling?

Back 1

Overruled because FRE 1101d3 – page 223 – rules of evidence inapplicable in miscellaneous proceedings such as bail hearings – don’t have to be as careful. It would take too long if we had to follow the rules of evidence at each bail hearing.

Front 2

Auto accident case – bench trial. P testifies that she had the green light. D testifies that he had the green light. After the closing argument each party seek verdict in its favor. What options does the trial judge have? Why?

Suppose that the trial judge rules for plaintiff. The defendant appeals, arguing that the judge should have believed him instead. What ruling on appeal?

Back 2

If the D moved for dismissal could the judge grant it? No looking at it from the light most favorable for non-moving party - there is sufficient evidence on both sides.
During a bench trial the judge has an additional role in a bench trial – judge is trier of fact and judge. If the party argues that the judge decided wrong they are arguing burden of persuasion and they can’t do it. The judge can go wither way. Preponderance of evidence – this is the burden of persuasion phase because it is at the deliberation phase and it’s gone to judge – and it is a credibility call.


On appeal – the trial court will look at whether or not there was sufficient evidence for burden of production. If no error can be shown and evidence on record does not show for defendant then defendant loses.

In a directed verdict situation the judge must ignore the competing inference of the non-moving party. In Sufficiency standard the judge ignores conflicting evidence in preponderance he weighs the conflicting evidence.

Front 3

The State prosecutes a juvenile for shoplifting a candy bar. Bench trial in juvenile court. The store owner testifies that he saw the defendant enter the store, take the candy bar, and leave without paying. The defendant testifies that he did not take the candy bar. After the closing arguments, each party seeks a verdict in its favor. What can the judge do? Why?


Suppose that the judge rules for the State. Defendant then appeals, arguing that the judge should have believed him instead. What ruling on appeal? Why?

What if the judge had ruled for the defendant, so that the State was the one appealing?

Back 3

This is the burden of persuasion because deliberations – state has the burden beyond a reasonable doubt. The judge can go either way.


Burden of production on appeal - could a rational trier of find beyond a reasonable doubt find the D guilty.

Can’t appeal an acquittal – double evidence.

Front 4

Auto accident case. Jury trial. Plaintiff testifies that she had the green light. Defendant testifies that he had the green light. The judge believes that the plaintiff is lying and the defendant is telling the truth. After the close of the evidence but before closing arguments, the defendant moves for a directed verdict. What ruling? Why? Would it make a difference if this were a bench trial?

Suppose that the judge grants the defendant's motion, and the plaintiff appeals. What ruling on appeal? Why?

Back 4

The purpose of this question is to highlight the burden of production because it has not gone to deliberations yet. The purpose of the burden of production is so that a judge can decide if it can go to the jury.

Reverse and remand. The trial court and the appellate court apply exactly the same standard – appellate court reviews summary judgment de novo – must reverse

Front 5

Robbery of a convenience store. The State calls the store clerk, who identifies the defendant as the robber. The defendant denies all involvement, and both he and his wife testify he was home watching TV at the time of the robbery. At the close of all the evidence, the defendant moves for a directed verdict. What ruling?

Back 5

Burden of production. Must decide in light most favorable to non-moving party the State - Denied

Front 6

In a divorce case, the wife is awarded the family car despite the husband's bitter objection. A month later, he assaults her, and she obtains a domestic violence restraining order. When the order is served on him, he says to his girlfriend, with whom he is living, "I'm going to fix that damn car so that neither of us will have it." A few hours later, the wife discovers that the car has been vandalized while parked outside her home.
The wife sues the husband for property damage to the car. At trial, she testifies that she has no ongoing disputes with anyone other than her husband, and that she knows of no one else who might want to damage her car.
The husband testifies that although he threatened to damage her car, he never did so. Instead, he went down to the local pub and met some of his buddies. Several buddies testify that he did in fact show up at the pub that night, although they can't fix the exact time.
At the close of the evidence, the husband moves for a directed verdict. What ruling?

Back 6

The question here is there a reasonable inference??? If the inference is a reasonable one the judge has to draw it.
This is burden of production. The judge must draw an inference from the girlfriend’s testimony and assume she is being credible.

Civil case – preponderance of evidence – light most favorable to non-moving party

Front 7

Between 1 a.m. and 7:00 a.m. on Wednesday, July 27, someone burglarizes an American Legion club by breaking its glass front door. The person enters and steals various items. The defendant belongs to the club, which he patronizes almost every Friday evening.
In the ensuing investigation, a fully qualified lab technician finds the defendant's fingerprint on broken glass from the front door. Although he cannot tell how old the fingerprint is, or when it might have been placed on the glass, the State charges the defendant with burglary.
Before trial, the defendant moves for judgment under State v. Knapstad, 107 Wn.2d 346 (1986). He bases his motion on affidavits relating the foregoing facts. The trial judge denies the motion, so the case proceeds to trial.
During trial, the State calls several witnesses in its case in chief. They testify to the foregoing facts. At the end of the State's case in chief, the defendant moves to dismiss. The trial judge denies the motion, so the defendant presents his evidence.
During the defendant's case-in-chief, he admits visiting the club on most Friday nights, but he denies the burglary. When the State says it has no rebuttal, he moves for a directed verdict. The trial court denies his motion and, after closing arguments, finds him guilty.
The defendant appeals, contending that the trial court erred by denying the motion to dismiss that he made before trial, the motion to dismiss that he made after the plaintiff's case, and the motion to dismiss that he made at the end of all the evidence. What rulings on appeal?
(1) Can he appeal the motion to dismiss before the trial?
(2) Can he appeal the motion to dismiss made after the P case?
(3) What ruling on appeal?

Back 7

(1) NO b/c the motion was made before trial he can’t appeal it.

(2) ? N0, He can’t appeal the motion, but he can appeal the motion to dismiss that he made after ALL the evidence is entered.
(3) Reversed and dismissed Burden of production problem – fairly public place not enough evidence to send to the jury.

Front 8

A house is located at the end of a cul-de-sac, behind two other homes. It is burglarized it one night while its owner is not home. Entry is made by breaking a window, and the defendant's fingerprint is found on a piece of the broken glass. The homeowner testifies at trial that he does not know the defendant, nor does he know of any reason why the defendant would be in or near his house. After the State's evidence, and again after all the evidence, the defendant moves for a directed verdict. What rulings?

Back 8

Burden of production b/c a motion made for a judge
After states evidence moves for a directed verdict – denied – must look at evidence in light most favorable to non-moving party – his fingerprint on window on house in cull-de sac.

After all of the evidence the directed verdict will be denied there’s sufficient evidence to go to the jury
If a jury convicts – will be affirmed on appeal.

Front 9

Plaintiff, a miner, sues his self-insured employer for worker's compensation. According to one statute, he is entitled to compensation if he is totally disabled. According to another statute, he is "irrebuttably presumed" to be totally disabled if he is shown by X-ray or other clinical evidence to have black lung disease. At trial, the plaintiff produces X-ray and clinical evidence showing black lung disease. The defendant then wants to call the plaintiffs neighbors to testify that they frequently see the plaintiff jogging and bowling. Plaintiff objects, claiming that the neighbors' testimony is irrelevant. What ruling?

Back 9

P objects claiming that the neighbor’s testimony is irrelevant? What ruling? Sustained – if the P proves the basic fact than the D can’t rebut the presumed fact.

This is an irrebuttable presumption (same as conclusive presumption) –

Front 10

Plaintiff sues her employer. She alleges unlawful discrimination based on age. At the end of the evidence, she asks for an instruction based on McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). Over defense objection, the court then tells the jury to presume discrimination, subject to whatever rebuttal may appear from the evidence, if the jury finds that the plaintiff was fired while 55 years old, that she was qualified to do her job, and that she was replaced by a person 30 years old. Verdict for plaintiff, and defendant appeals. What is the issue? What ruling? Cf. Saint Mary's Honor Center v. Hicks, 509 U.S. 502, 125 L.Ed.2d 407, 113 S.Ct. 2742 (1993).

Did the judge instruct the jury on the presumption? The presumed fact is the discrimination and all of the other facts (fired, white , 55 replaced are basic facts) can this go to the jury?

Back 10

Yes unless it is rebutted and the D provides a real reason than the presumption disappears.
The real issue here is whether the presumption disappears or survives to go to the jury. If it endures then it should be given to the jury but if rebutted then it disappears – if affects only the burden of production.