Term
| Who determines if the burden of going forward is met? |
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Definition
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Term
| When is the burden of going forward met? |
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Definition
| If sufficient evidence is submitted to create a fact question for the jury in which a reasonable jury could find in bearers favor |
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Term
| What happens if the burden of going forward on a central element of the case has not been met? |
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Definition
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Term
| What happens if the burden of going forward has not been met in civil cases? |
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Definition
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Term
| What happens of the burden of going forward is not met as to part of an affirmative defense? |
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Definition
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Term
| Who determines whether the burden of persuasion has been met? |
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Definition
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Definition
| Device that requires the trier to draw a particular conlcusion when the basic facts are established, in absence of evidence tending to disprove the fact presumed |
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Term
| What does a presumption do? |
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Definition
Imposes on the party against whom the presumption is directed the burden of going foward with evidence to rebut/ meet presumption (shifts burden) If proponent of presumption introduces evidence that establishes the basic fact, the presumed fact is established. The burden of going forward shifts to the opposing party to meet or rebut the presumption.
Does not shift the burden of persuasion. |
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Term
| Does a presumption shift the burden of persuasion? |
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Definition
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Term
| Is res ipsa loquitor a presumption? |
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Definition
| No, it's a permissible factual inference that helps fill up the box. |
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Term
| Whats the difference between presumption and inference? |
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Definition
| D has to disprove the presumption to be found not guilty. D does not have to do anything with an inference to get to the jury to be found not guilty |
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Term
| In criminal cases, may the state use presumptions to prove the element of a crime? |
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Definition
| No; may only use permissible factual inferences. Instruction "May infer, but are not required to infer" Not "Criminal is presumed to have mens rea and the criminal must disprove that he has mens rea" |
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Term
| In a criminal case, can the burden of production and persuasion be shifted as to the element of the charged offense |
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Definition
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Term
| In a criminal case, who bears the burden of production and persuasion with respect to an affirmative defense? |
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Definition
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Term
| May burdens be shifted in criminal cases? |
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Definition
| No, never. They may be reallocated by statute. |
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Term
| Who carries the burden of going forward for the elements of a civil case? |
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Definition
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Term
| Who carries the burden of going forward for affirmative defenses in civil cases? |
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Definition
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Term
| Attacking Presumed facts under FRE |
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Definition
| "Bursting bubble" Presumption imposes on the party against whom it's directed the burden of going forward with evidence to rebut/meet the presumption, but DOES NOT SHIFT the burden of proof. The presumption disappears when sufficient evidence to raise a jury question is submitted. The burden goes back to the original party and the fact can't be presumed. Favors the non-bearing party. |
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Term
| Does the "bursting bubble" Federal rule on presumptions apply to both criminal and civil cases? |
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Definition
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Term
| What is the Morgan view of presumptions? |
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Definition
Presumption remains in effect, the burden of persuasion shifts to the other party to disprove the existence of a presumed fact.
Favors bearing party; (P) Both burdens are shifted and never shifts back.
Possibility of establishing the presumed fact stays alive, even in the presence of evidence that a reasonable jury could find the presumed fact didn't exist. |
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Term
| What's the California view for presumptions? |
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Definition
| Follows FRE for probability and logical inference. Follows Morgan for presumptions based on public policy |
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Term
| What's the intermediate view of presumptions? |
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Definition
| Presumption exists until substantial and uncontradicted evidence is offered against the presumed fact. Counter proof evidence offered that the jury believes |
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Term
| What's the equipoise view of presumptions? |
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Definition
| Presumption exists until the jury believes that the non-existence of the presumed fact is as likely as its existence |
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Term
| Does the "bursting bubble" Federal rule on presumptions apply to Erie/diversity cases? |
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Definition
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