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96 Cards in this Set
- Front
- Back
Question
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Answer
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Burden of Proof"
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"The party who has the burden of pleading usually has the burden of producing or going forward with evidence sufficient to make out a prima facie case.
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2. Criminal case: beyond a reasonable doubt"
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What is the threshold and limit of admissibility?
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"Relevant evidence is admissible if competent.
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E may be admissible against one party but not another."
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How to approach relevance questions?
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"1. Determine the evidence is relevant (i.e. tends to prove or disprove a material fact).
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2. If relevant
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determine whether the evidence should nonetheless be excluded based on:
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a. Judicial discretion (i.e. probative value is outweighed by unfair prejudice
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ect)
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b. Public Policy (e.g. insurance
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subsequent repairs)"
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"Exceptions to the general rule of relevant (i.e. must relate to time
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event
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7. Habit"
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Define Hearsay
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"Out of Ct statement of person [oral or written] AND offered to prove the truth of the matter asserted in the statement.
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If so
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statements are inadmissible unless fits w/n exceptions"
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Out of court statements *not* offered to prove truth of matter asserted
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Non-Hearsay Statements
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What are the Non-hearsay categories?
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"1. Verbal Act or Legally Operative Facts
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3. Circumstantial evidence of Speaker's State of Mind"
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Examples of Verbal Act or Legally Operative Facts
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"I.e. certain utterances as to which the law attaches legal significance.
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E.g. words of contract
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defamation
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Such evidence is not hearsay b/c the issue is simply whether the statemement was made."
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To show Effect on person who heard or read the statement
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"Such statements are admitted to show the effect they had on the reader or hearer.
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In negligence case
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where knowledge of danger is at issue
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In Criminal case
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such as Dr. Shephard where H claims wife was killed by fleeing one-armed man
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Circumstantial evidence of Speaker's State of Mind
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"Such statements are not offered to prove the truth of the matter asserted but only that the declarant believed them to be true.
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Insanity proceeding
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declarant stated o-o-ct ""I am John the Baptist.""
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Evidence that b/f an accident driver stated
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""My brakes are defective"" is not admissible to prove brakes wre defective
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Non-hearsay prior statements of W
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"A W's OWN PRIOR STATEMENT
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2. W's prior inconsistent statement IF oral is under oath and made during former trial
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hearing
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3. W's prior consistent statement is used to rebut a recent charge of fabrication or improper motive or influence. H-48
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p.52"
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When is an admission of party-opponent admissible?
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"Any statement made by a PARTY is admissible if it is offered AGAINST THE PARTY [offered by the other side]
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Theory - party ought to bear the consequence of what he says"
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Vicarious Admissions= statements made by agent/employee is admissible against principle/employer if statement concerns matter w/n scope of agency/employment AND is made during agency/employment relationship. See pg. 64
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List of Hearsay Exceptions
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"1. Former testimony
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11. Public records"
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6th A Right of Confrontation
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"Rule - In the context of hearsay
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1. the statement is testimonal
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2. the declarant is unavailable
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and
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3. the D has had an opportunity for cross-examination"
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Statement are testimonal when the primary purpose of the questioning is..."
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"to establish past events potentially relevant to a criminal prosecution.
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Ohio's SC's definition is..."
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"A statememt is testimonial if made under circumstances which would lead an objective W reasonablly to believe that the statement would be available for use at a criminal trial.
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Ex. Cop takes rape victim to hospital
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victim would reasonablly expect statements to medical staff eo be used primarily for medical assistance not for prosecution of D."
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Statement are not testimonal when the primary purpose of the questioning is...
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"to enable police assistance to meet an ongoing emergency - to end a threatening situation.
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A given situation may start out as an emergency and evolv into ""proof of past facts."" Cts must redact the testimonial portions."
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Statements made during police questioning in the context of 911 telephone calls nd crime scene interviews [e.g. declarant makes statements that fall w/n hearsay exceptions for excited utterances or present sense impressions
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What types of hearsay exceptions require unavailability?
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"1.former testimony
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5.statements offered against party procurring declarat's unavailability"
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What constitutes unavailability? PAILS
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"1. Privilege
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5. Stubborn refusal to testify"
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When is former testimony admissible?
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"The former testimony of a now unavailable W
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When is a statement against interest admissible?
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"When an unavailable declarant's statement is against his or her PECUNIARY [money]
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Note - statement against penal interest
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when offered to EXCULPATE defendent
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OH - In all criminal cases
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statement against interest must be corroborated by circumstances showing trustworthiness
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How does statements against interest differ from party admissions?
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"1. interest must be against interest when made
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4. declarant must be unavailable"
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When are dying declarations admissible?
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"Under a belief of IMPENDING AND CERTIAN DEATH by a NOW-UNAVAILABLE declarant concerning the CAUSE or SURROUNDING CIRCUMSTANCES of DECLARANT'S DEATH.
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Type of cases?"
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"Criminal cases = Homicide only
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What is Ohio's exception for Child's Statements Concerning Abuse?
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"OH recognizes a unique hearsay exception for statements by a child who is UNDER 12 at the time of trial concerning physical or sexual abuse toward child IF
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Confronation issue arises if child's statements are made during police interrogation
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as compared to statements made to friend or relative."
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When are statements of personal or family history admissible?
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"Statements made concerning birth
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Ex. most people rely on hearsay statements of others for knowledge of where they were born."
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When are statements offered against party procurring declarant's unavailabilty admissible?
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"The statements of a person
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In effect
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a partforfiets his right to object on hearsay grounds to admissions of an unavailable declarant's statements when the party's delibrate wrongdoing procured the unavailablity of the declarant as a witness."
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"What is the ""excited utterance"" exception?"
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"A statement concerning a startling event AND made while declarant is still under the stress of excitement caused by the event.
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Theory - excitement suspends one's capacity to fabricate."
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Factors to consider in determining a statement qualifies for an excited utterance
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"1. Nature of the event -traumatic accident or gufight
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2. Passage of time - no bright-line rule
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a person can still be excited an hour later
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b. excitement - oriented verbs ""shouted
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"" or ""screamed
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c. exclamation point."
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"What is the ""present sense impression"" exception?"
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"A description of an event made WHILE the event is OCCURING or IMMEDIATELY thereafter.
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OH- present sense impression is inadmissible if circumstances indicate lack of trustworthiness"
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"E.g. Vic is on the phone w/ mom
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"What is the ""present state of mind"" exception?"
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"A statement of a declarant's existing state of mind
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Theory - contemporaneous statement about matters as to which declarant has unique knowledge"
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"What is the ""declaration of intent"" exception?"
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"statement of declarant's intent to do something in the future
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e.g. D life insurance co. uses note found in P's dead daughter's apartment in her hand writing in which she said
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""I'm going to end it all next week."""
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When are declarations of physical condition admissible?
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"When statement is made to anyone about declarant's CURRENT physical condition.
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In tort action
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plaintiff may of course testify about the pain she exprienced when her arm was broken in an accident w/ D. But P also calls her neighbor to testify
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When are statements for purpose of medical treatment or diagnosis admissible?
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"When statement is made to anyone [but usually to medical personel] concerning PAST or PRESENT SYMPTOMS of GENERAL CAUSE OF CONDITION for purpose of TREATMENT or DIAGNOSIS.
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Theory - motive to be honest and accurate to get medical assessment."
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When are business records admissible?
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"1. Records of any type of business
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5. contents consists of - information including qualified opinion and diagnosis
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observed by employees of the business
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In Ohio
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the Ohio rule does not explicitly provide for the admissibility of opinions or diagnosis in medical ofice and hospital records."
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a. entry was made as part of systematice
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routine and regular medical practice;
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b. diagnosis was result of well-accepted
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objective procedure that is not of such technical ntue as to require cross-examination; and
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How to establish business records foundation.
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"1. call sponsoring W to testity to 5 elements of business records hearsay exception; W need not be author of report--can be records custodian or any other knowledgeable person w/n the business
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Ohio - Written certification method recognized only in case of hospital records."
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When are public records admissible?
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"Records
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In OH
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forensic crime lab report analyzing chemical DNA content of bodily fluids found at crime scene is not prohibited by police report exclusion. They're neutral
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Requirements for public records admissibilty
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"1. the writing must have been made by
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2. the writing must have been made at or near the time of act
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condition or event.
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3.the sources of information and other circumstances must be such as to indicate its trustworthiness."
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What other misc. records can be admitted?
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"1. Records of vital statistics [e.g. records of birth
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5. reputation concerning: a person's character
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someone's personal or family history
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6. statements of fact concerning personal or family history contained in family Bibles
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genealogies
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7. market reports and other compilations if generally used and relied upon by the public or by persons of particular occupation"
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How to impeach the hearsay declarant
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Can use any impeachment method to attack credibility of a hearsay declarant whos statement was admitted into evidence. See pg 78 for Hypo
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Who has and what is the burden of production or going forth with the evidence?
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"Usually the burden is cast on the party who has pleaded the xistence of the fact
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Prima fcie case may shift burden of production. P's case-in-chief is done. D's motion for nonsuit is denied made at conclusion of P's case; thus P made out her pfc of D's negligence. If D doesn't immediately rebut w/ evidence
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P moves for Directed verdict in her favor claiming D was negligent as a matter of law. If granted
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Who has and what is the burden of persuasion [proof]?
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The attorneys. It does not shift from party to party during the course of the trial b/c it's not allocated until it is time for a decision of the trier of fact. Jury will be told who has the burden what the quantum of proof should be.
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Who decides preliminary questions of fact upon which admissibility depends?
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The judge. Other questions of fact are for the jury
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