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20 Cards in this Set

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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?
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.
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? Why?
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.
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?
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.
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?
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
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?
Burden of production. Must decide in light most favorable to non-moving party the State - Denied
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?
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
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?
(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.
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?
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.
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?
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)
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?
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.
Chase rents a motel room from Beard. The floor of the porch outside the room gives way while Chase is walking on it. She falls and is injured. Chase sues Beard for damages. At the end of the evidence, she asks the trial court to instruct the jury on the doctrine of res ipsa loquitur. (Roughly stated, that doctrine permits an inference of negligence from facts and circumstances that ordinarily would not produce injury without negligence.) On what issue should the trial court's ruling depend?
res ipsa – inference of negligence – was is split – so judge should instruct the jury about re sips – effect of res ipsa presumption shifts the burden of persuasion
Brown v. Dahl – 41 win app 565
The issue is whether the judge should instruct of res ipsa – b/c it goes to the jury it is an enduring permissible presumption
Defendant is charged with second degree murder. According to the statute, a person is guilty of that crime if, with intent to kill, he or she causes the victim's death. Defendant admits shooting the victim, but he claims it was an accident. The State asks the trial judge to instruct that the law presumes a person intends the natural and probable consequences of his acts. Defendant objects. What are the issues? What ruling?
this is unconstitutional – can’t shift burden of proving each element of crime to D sandstrom v. Montana. part of the states burden is to prove the intent – v
In a criminal case the first two effects are unconstitutional of 24 C but you can have a presumption to help the D meet its burden of proof if presumption is permissive. If you find fact A you are permitted but not required to find fact b. Even if permissive it still has to be rationally connected. Page 27 section b.

Page 29 – if the permissible presumption is the only evidence then the rational connection must be beyond a reasonable doubt. If the permissible presumption is not the only evidence then it must be by a preponderance of the evidence.
During the trial of auto accident case, plaintiff calls Sally and asks her what happened. Sally testifies that the blue car (which was defendants) ran the red light. Plaintiff obtains a judgment, and the defendant appeals. While the appeal is pending, the defendant learns that Sally did not see the accident; that her testimony was based on what her sister-in-law had told her, and thus that her testimony violated ER 602, requiring that testimony be based on personal knowledge. The defendant asks the appellate court to reverse. What result?
There was no 602 objection in trial court so lost the right to appeal. This is a civil right so it doesn’t involve constitutional issues. If you fail to object at trial you lose. Appellate court won’t review – it will affirm.

Would plain error FRE 103 do you any good in WA – No, WA doesn’t have plain error
A truck driver is killed when his truck leaves the state highway on a sharp curve. His widow sues the state for wrongful death. At trial, the wife calls several witnesses to testify about other accidents in the same location. The state objects to the first several questions asked of the first witness, but the trial court overrules. Without objecting further, the state cross-examines each witness. Plaintiff obtains judgment, and the state appeals.
On appeal, plaintiff argues that state waived review by failing to object to each of her questions, and also by cross-examining each witness. Did the state waive review by not objecting to each question? Could the state have taken a better course of action? What test should the appellate court use when deciding whether the defendants failure to object waived his right to review? Did the state waive review by cross-examining?
Did the state waive review by not objecting to each question? Probably not – the issue is whether they fully advised the judge about the problem. Could the state have taken a better course of action? Yes, State should have asked for a continuing objection – judge may I have a continuing objection so I don’t have to keep interrupting the opposing party. What test should the appellate court use? Ask was the trial court fully appraised of the problem – if yes then review.

Did the state waive review by cross examining? No, you don’t waive review by cross examining – if judge objects you must cross examine
Auto accident case. Plaintiffs counsel calls Sally and asks her what happened. Defense counsel knows that Sally did not see the accident, and that whatever she has to say will necessarily be based upon what someone else told her. Nonetheless, defense counsel withholds objection until he can hear what Sally has to say. When her answer turns out to be unfavorable, counsel states, "Objection, hearsay; move to strike and ask that the jury be instructed to disregard." What rulings?
Counsel can wait to hear the answer – judge will overrule – if you gamble on the answer you take whatever answer that comes
Same case, except that when plaintiffs attorney asks Sally what happened, she quickly blurts out that the blue car ran the red light. Almost simultaneously with her answer, defense counsel is saying, "Objection, hearsay." Defense counsel goes on to ask the judge to strike Sally's answer and instruct the jury to disregard it. What ruling?
Ok – timely b/c d blurted out answer – page
Same case. Sally answers on direct without objection. On cross, however, defense counsel asks Sally how far away from the intersection she was when the accident happened. Sally responds, "Probably about ten miles. I was home in my kitchen." Now thinking that Sally might not have the personal knowledge that ER 602 requires, defense counsel goes on to establish that Sally is basing her testimony on what her sister-in-law told her, rather than on what she herself saw. Defense counsel moves to strike Sally's testimony, and for an instruction directing the jury to disregard. What ruling?
Judge can rule either way –
If you figured it out on cross then probably can make a motion to strike – a motion to strike is just an objection after the fact.
Issue – timely or not timely – it’s a judge’s call
At trial in an auto accident case, plaintiff objects to evidence of a similar accident on the ground that it is irrelevant. The trial court overrules. On appeal, plaintiff concedes that the evidence was logically relevant, but argues that it should have been excluded on grounds of unfair prejudice pursuant to ER 403. Defendant asserts that plaintiff waived review by failing to make the correct specific objection. What ruling? What if the trial court had sustained the objection?
Wrong objection – irrelevant objection then tried to argue unfair prejudice. Didn’t make an unfair prejudice objection so can’t have unfair prejudice looked at on appeal.

What if court had sustained the objection? It would affirm. Still couldn’t look at unfair prejudice.
At the trial of a wrongful death action, defense counsel offers a police report. Part of it is admissible, but part is inadmissible hearsay. Plaintiffs counsel says, "Your honor, the report is blatant hearsay." The trial court overrules the objection. Will the plaintiff be able to obtain review on appeal? If the trial court had sustained the objection, would the defendant be able to obtain review on appeal?
Objection is not specific enough – must tell judge which parts are good and which parts are bad.

But what if the trail sustained the objection – the appellate court would affirm b/c objection is not specific enough. If the judge sustains what position does the proponent have to do? The proponent has the burden of separating the good from the bad when they object and when they offer proof – appellate court may or may not review.
Auto accident case. Plaintiff testifies that after the accident, the defendant appeared to be under the influence of intoxicants. In response, defense counsel calls the investigating police officer and, after the proper preliminaries, asks whether she administered a breathalyzer test to the defendant after the accident. Plaintiff objects, and the trial court sustains. After plaintiff obtains judgment, the defendant appeals, arguing that the trial court erred by excluding the breathalyzer result. What result?
Look at FRE 103(2) offer of proof - P should have asked to offer proof
Too late after judgment