1 California Evidence (5th), Burden of Proof and Presumptions

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1 1 California Evidence (5th), Burden of Proof and Presumptions I. THE TWO BURDENS A. [ 1] In General. B. [ 2] Burden of Producing Evidence. C. [ 3] Burden of Proof. D. [ 4] Burdens in Determining Preliminary Facts. II. ALLOCATION OF BURDENS IN CIVIL CASES A. [ 5] Burden of Producing Evidence. B. Burden of Proof. 1. [ 6] Former Rule. 2. Evidence Code. (a) General Rule: Facts Essential to Claim or Defense. (1) [ 7] Theory of Rule. (2) [ 8] Facts Essential to Claim. (3) [ 9] Facts Essential to Defense. (4) [ 10] Negative Averments. (b) Factors Calling for Altered Burden. (1) [ 11] Bases for Exceptions. (2) [ 12] Knowledge of Party. (3) [ 13] Availability of Evidence. (4) [ 14] Proof of Causation. 3. Burden on Specific Issues. (a) [ 15] Guilt of Crime or Wrong. (b) [ 16] Failure To Exercise Due Care. (c) [ 17] Insanity. (d) [ 18] Eminent Domain Proceedings. (e) [ 19] Ownership of Motor Vehicle. (f) [ 20] Land Patented or Granted by State. (g) [ 21] State Board of Equalization Proceeding. III. ALLOCATION OF BURDENS IN CRIMINAL CASES A. Presumption of Innocence and Prosecution s Burden of Proof. 1. [ 22] Constitutional Basis. 2. [ 23] Statutory Restatement. 3. Instructions to Jury. (a) [ 24] Proper Instructions. (b) [ 25] Improper Variations. (c) [ 26] Right to Presence of Counsel During Instruction. B. [ 27] Burden of Producing Evidence on Certain Defenses. C. Burden of Proof on Certain Defenses. 1. [ 28] In General. 2. [ 29] Insanity. 3. [ 30] Whether Witness Was Accomplice. 4. [ 31] Other Special Defenses. D. [ 32] Burden of Proving Incompetence. E. [ 33] Burden in Own Recognizance Release of Arrestee.

2 F. [ 34] Burden in Eyewitness Identification. IV. DEGREE OR MEASURE OF PROOF A. [ 35] Requisite Degree of Belief: In General. B. Civil Cases. 1. Preponderance of Evidence. (a) [ 36] In General. (b) [ 37] Proof of Crime or Fraud. (c) [ 38] Proof in Dependency Hearing. 2. Clear and Convincing Evidence. (a) [ 39] Nature of Requirement. (b) [ 40] Issues Requiring Such Proof. 3. [ 41] Beyond Reasonable Doubt. C. Criminal Cases. 1. Prosecution s Burden. (a) [ 42] Beyond Reasonable Doubt. (b) [ 43] Preponderance of Evidence. (c) [ 44] Other Standards. 2. Defendant s Burden. (a) [ 45] In General. (b) [ 46] Insanity. (c) [ 47] Other Issues Relating to Guilt. (d) [ 48] Miscellaneous Issues. V. NATURE AND EFFECT OF REBUTTABLE PRESUMPTIONS A. Former Law. 1. [ 49] Nature of Problem. 2. [ 50] Presumptions and Inferences as Evidence. 3. [ 51] Presumption or Inference Dispelled. B. [ 52] Model Code, Uniform Rules, and Federal Rules. C. Evidence Code. 1. [ 53] Presumption Is Not Evidence. 2. Classification in Civil Cases. (a) [ 54] In General. (b) Presumptions Affecting Burden of Producing Evidence. (1) [ 55] Nature. (2) [ 56] Effect. (c) Presumptions Affecting Burden of Proof. (1) [ 57] Nature. (2) [ 58] Effect. 3. Presumptions Establishing Element of Crime. (a) Nature and Effect of Presumption. (1) [ 59] Purpose: Policy or Convenience. (2) [ 60] Effect. (3) [ 61] Presumption Construed as Inference. (b) [ 62] Rational Connection Test. (c) Illustrations. (1) [ 63] Miscellaneous Offenses.

3 (2) Drugs. (aa) [ 64] In General. (bb) [ 65] Marijuana. (cc) [ 66] Heroin. (dd) [ 67] Cocaine. VI. EVIDENCE CODE PRESUMPTIONS: BURDEN OF PRODUCING EVIDENCE A. [ 68] In General. B. [ 69] Money Delivered Was Due. C. [ 70] Thing Delivered Was Owned. D. [ 71] Obligation Delivered to Debtor. E. [ 72] Possession of Own Order. F. [ 73] Obligation Possessed by Creditor. G. [ 74] Payment of Earlier Rent or Installments. H. [ 75] Ownership of Things Possessed. I. [ 76] Exercise of Acts of Ownership. J. [ 77] Judgment Correctly Determines Rights. K. [ 78] Writing Truly Dated. L. [ 79] Letter Received. M. [ 80] Conveyance to Person Under Duty. N. [ 81] Authenticity of Ancient Instruments. O. [ 82] Publicly Published Book. P. [ 83] Reported Decisions. Q. [ 84] Newspaper or Periodical. R. [ 85] Res Ipsa Loquitur Codified. S. [ 86] Facts in Return of Process or Notice. VII. EVIDENCE CODE PRESUMPTIONS: BURDEN OF PROOF A. [ 87] In General. B. [ 88] Legal and Beneficial Title. C. [ 89] Ceremonial Marriage Valid. D. Official Duty Regularly Performed. 1. [ 90] In General. 2. [ 91] Official Conduct Challenged in Criminal Proceeding. E. [ 92] Ordinary Consequences of Voluntary Act. F. [ 93] Jurisdiction of Court. G. Death Presumed From 5 Years Absence. 1. [ 94] Nature of Presumption and Proof of Absence. 2. [ 95] Presumption of Life During Period. H. [ 96] Unlawful Intent From Unlawful Act. I. [ 97] Negligence Per Se. J. [ 98] Official Writings Affecting Property. K. [ 99] Impact of Zoning Ordinance. L. [ 100] Payment of Check by Bank. VIII. FORMER PRESUMPTIONS NOT RESTATED AS PRESUMPTIONS A. [ 101] Presumptions Eliminated. B. [ 102] Presumptions Restated as Maxims. C. [ 103] Presumptions Restated as Rules of Burden of Proof.

4 D. [ 104] Presumptions Treated as Bases for Inferences. IX. PRESUMPTIONS NOT IN EVIDENCE CODE A. In General. 1. [ 105] Nature and Sources. 2. [ 106] The Problem of Classification. B. Presumptions Stated in Other Codes. 1. [ 107] Contracts and Commercial Transactions. 2. [ 108] Property. 3. Family and Probate Issues. (a) [ 109] Parent-Child Relationship. (b) [ 110] Other Issues. 4. [ 111] Vehicle Code Presumptions. 5. [ 112] Miscellaneous Presumptions. C. Nonstatutory Presumptions. 1. [ 113] Scope of Employment and Agency. 2. [ 114] Driving With Permission. 3. [ 115] Other Judicially Declared Presumptions. X. RES IPSA LOQUITUR A. Nature of Doctrine. 1. [ 116] In General. 2. [ 117] Theory of Probability of Negligence. 3. Defendant s Superior Knowledge. (a) [ 118] As a Factor Justifying Application. (b) [ 119] Not a Condition. B. [ 120] Codification of Doctrine. C. Effect of Doctrine. 1. [ 121] Plaintiff s Burden of Proof. 2. Defendant s Burden of Producing Evidence. (a) [ 122] Rule and Test. (b) [ 123] Illustrations: Presumption Overcome. (c) [ 124] Illustrations: Burden Not Satisfied. D. Effect of Specific Pleading, Proof, or Findings. 1. [ 125] Specific Pleading. 2. [ 126] Specific Proof. 3. [ 127] Specific Findings. E. Instructions. 1. [ 128] CACI Forms. 2. [ 129] BAJI Forms. 3. [ 130] Necessary Conditions for Application. F. Illustrations of Application of Doctrine. 1. [ 131] Carriers. 2. [ 132] Motor Vehicles. 3. [ 133] Boats. 4. [ 134] Private Airplanes. 5. [ 135] Falling Objects. 6. [ 136] Defective Appliances and Equipment.

5 7. [ 137] Explosions. 8. [ 138] Bursting Bottles. 9. Medical Malpractice. (a) [ 139] Modern Development. (b) [ 140] Illustrations. (c) Common Knowledge and Expert Testimony. (1) [ 141] Former Restrictive Rule. (2) [ 142] Approach of Later Cases. (3) [ 143] Illustrations. (4) [ 144] Unusual Result Following Complex Procedure. 10. [ 145] Other Situations. G. Limitations on Application of Doctrine. 1. Defendant s Control. (a) In General. (1) [ 146] Nature and Theory of Condition. (2) [ 147] Third Person in Control. (3) [ 148] Plaintiff or Decedent in Control. (b) Constructive Control (Condition Unchanged). (1) [ 149] Bursting Bottles. (2) [ 150] Other Situations. (c) Multiple Defendants. (1) [ 151] Medical Malpractice. (2) [ 152] Other Situations. (3) [ 153] Special Relationship Between Defendants Is Not Required. 2. Circumstances Not Indicative of Negligence. (a) [ 154] Balancing Probabilities: In General. (b) [ 155] Slip and Fall Cases. (c) [ 156] Other Situations. 3. Plaintiff s Voluntary Act. (a) [ 157] Contributory Fault. (b) [ 158] Conduct Is Not Responsible Cause. (c) [ 159] Self-Harm by Psychiatric Patient. 4. Action Based on Strict Liability. (a) [ 160] Exclusive Reliance on Strict Liability. (b) [ 161] Reliance on Strict Liability and Negligence. XI. INCONSISTENT PRESUMPTIONS A. [ 162] In General. B. [ 163] Validity of Second Marriage. XII. CONCLUSIVE PRESUMPTIONS A. [ 164] Nature of Conclusive Presumptions. B. Statutory Listing. 1. [ 165] In Evidence Code. 2. In Other Codes. (a) [ 166] Parentage. (b) [ 167] Other Presumptions.

6 C. [ 168] Nonstatutory Conclusive Presumptions. D. Constitutionality. 1. [ 169] In General. 2. [ 170] Parentage.

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