1 California Evidence (4th), Burden Of Proof And Presumptions

I. THE TWO BURDENS

A. [§1] In General.

B. [§2] Burden of Producing Evidence.

C. [§3] Burden of Proof.

II. ALLOCATION OF BURDENS IN CIVIL CASES

A. [§4] Burden of Producing Evidence.

B. Burden of Proof.

1. [§5] Former Rule.

2. Evidence Code.

(a) General Rule: Facts Essential to Claim or Defense.

(1) [§6] Theory of Rule.

(2) [§7] Facts Essential to Claim.

(3) [§8] Facts Essential to Defense.

(4) [§9] Negative Averments.

(b) Factors Calling for Altered Burden.

(1) [§10] Bases for Exceptions.

(2) [§11] Knowledge of Party.

(3) [§12] Availability of Evidence.

(4) [§13] Proof of Causation.

3. Burden on Specific Issues.

(a) [§14] Guilt of Crime or Wrong.

(b) [§15] Failure To Exercise Due Care.

(c) [§16] Insanity.

(d) [§17] Eminent Domain Proceedings.

(e) [§18] Ownership of Motor Vehicle.

(f) [§19] Land Patented or Granted by State.

III. ALLOCATION OF BURDENS IN CRIMINAL CASES

A. Presumption of Innocence and Prosecution's Burden of Proof.

1. [§20] Constitutional Basis.

2. [§21] Statutory Restatement.

3. Instructions to Jury.

(a) [§22] Proper Instructions.

(b) [§23] Improper Variations.

(c) [§24] Right to Presence of Counsel During Instruction.

B. [§25] Burden of Producing Evidence on Certain Defenses.

C. Burden of Proof on Certain Defenses.

1. [§26] In General.

2. [§27] Insanity.

3. [§28] Whether Witness Was Accomplice.

4. [§29] Other Special Defenses.

D. [§30] Burden of Proving Incompetence.

E. [§31] Burden in O.R. Release of Arrestee.

F. [§32] Burden in Eyewitness Identification.

IV. BURDENS IN DETERMINING PRELIMINARY FACTS

A. [§33] In General.

V. DEGREE OR MEASURE OF PROOF

A. [§34] Requisite Degree of Belief: In General.

B. Civil Cases.

1. Preponderance of Evidence.

(a) [§35] In General.

(b) [§36] Proof of Crime or Fraud.

(c) [§37] Proof in Dependency Hearing.

2. Clear and Convincing Evidence.

(a) [§38] Nature of Requirement.

(b) [§39] Issues Requiring Such Proof.

3. [§40] Beyond Reasonable Doubt.

C. Criminal Cases.

1. Prosecution's Burden.

(a) [§41] Beyond Reasonable Doubt.

(b) [§42] Preponderance of Evidence.

(c) [§43] Other Standards.

2. Defendant's Burden.

(a) [§44] In General.

(b) [§45] Insanity.

(c) [§46] Other Issues Relating to Guilt.

(d) [§47] Miscellaneous Issues.

VI. NATURE AND EFFECT OF REBUTTABLE PRESUMPTIONS

A. Former Law.

1. [§48] Presumptions and Inferences.

2. [§49] Presumptions and Inferences as Evidence.

3. [§50] Presumption or Inference Dispelled.

B. [§51] Model Code, Uniform Rules, and Federal Rules.

C. Evidence Code.

1. [§52] Presumption Is Not Evidence.

2. Classification in Civil Cases.

(a) [§53] In General.

(b) Presumptions Affecting Burden of Producing Evidence.

(1) [§54] Nature.

(2) [§55] Effect.

(c) Presumptions Affecting Burden of Proof.

(1) [§56] Nature.

(2) [§57] Effect.

3. Presumptions Establishing Element of Crime.

(a) Nature and Effect of Presumption.

(1) [§58] Purpose: Policy or Convenience.

(2) [§59] Effect.

(3) [§60] Presumption Construed as Inference.

(b) [§61] Rational Connection Test.

(c) Illustrations.

(1) [§62] Miscellaneous Offenses.

(2) Drugs.

(aa) [§63] In General.

(bb) [§64] Marijuana.

(cc) [§65] Heroin.

(dd) [§66] Cocaine.

VII. EVIDENCE CODE PRESUMPTIONS: BURDEN OF PRODUCING EVIDENCE

A. [§67] In General.

B. [§68] Money Delivered Was Due.

C. [§69] Thing Delivered Was Owned.

D. [§70] Obligation Delivered to Debtor.

E. [§71] Possession of Own Order.

F. [§72] Obligation Possessed by Creditor.

G. [§73] Payment of Earlier Rent or Installments.

H. [§74] Ownership of Things Possessed.

I. [§75] Exercise of Acts of Ownership.

J. [§76] Judgment Correctly Determines Rights.

K. [§77] Writing Truly Dated.

L. [§78] Letter Received.

M. [§79] Conveyance by Person Under Duty.

N. [§80] Authenticity of Ancient Instrument.

O. [§81] Publicly Published Book.

P. [§82] Reported Decisions.

Q. [§83] Newspaper or Periodical.

R. [§84] Res Ipsa Loquitur Codified.

S. [§85] Facts in Return of Process or Notice.

VIII. EVIDENCE CODE PRESUMPTIONS: BURDEN OF PROOF

A. [§86] In General.

B. [§87] Legal and Beneficial Title.

C. [§88] Ceremonial Marriage Valid.

D. [§89] Official Duty Regularly Performed.

E. [§90] Ordinary Consequences of Voluntary Act.

F. [§91] Jurisdiction of Court.

G. Death Presumed From 5 Years' Absence.

1. [§92] Nature of Presumption and Proof of Absence.

2. [§93] Presumption of Life During Period.

H. [§94] Unlawful Intent From Unlawful Act.

I. [§95] Negligence Per Se.

J. [§96] Official Writings Affecting Property.

K. [§97] Impact of Zoning Ordinance.

L. [§98] Payment of Check by Bank.

IX. FORMER PRESUMPTIONS NOT RESTATED AS PRESUMPTIONS

A. [§99] Presumptions Eliminated.

B. [§100] Presumptions Restated as Maxims.

C. [§101] Presumptions Restated as Rules of Burden of Proof.

D. [§102] Presumptions Treated as Bases for Inferences.

X. PRESUMPTIONS NOT IN EVIDENCE CODE

A. In General.

1. [§103] Nature and Sources.

2. [§104] The Problem of Classification.

B. Presumptions Stated in Other Codes.

1. [§105] Contracts and Commercial Transactions.

2. [§106] Property.

3. Family and Probate Issues.

(a) [§107] Parent-Child Relationship.

(b) [§108] Other Issues.

4. [§109] Vehicle Code.

5. [§110] Miscellaneous Presumptions.

C. Nonstatutory Presumptions.

1. [§111] Scope of Employment and Agency.

2. [§112] Driving With Permission.

3. [§113] Other Judicially Declared Presumptions.

XI. RES IPSA LOQUITUR

A. Nature of Doctrine.

1. [§114] In General.

2. [§115] Theory of Probability of Negligence.

3. Defendant's Superior Knowledge.

(a) [§116] As a Factor Justifying Application.

(b) [§117] Not a Condition.

B. [§118] Codification of Doctrine.

C. Effect of Doctrine.

1. [§119] Plaintiff's Burden of Proof.

2. Defendant's Burden of Producing Evidence.

(a) [§120] Rule and Test.

(b) Illustrations.

(1) [§121] Presumption Overcome.

(2) [§122] Burden Not Satisfied.

D. Effect of Specific Pleading, Proof, or Findings.

1. [§123] Specific Pleading.

2. [§124] Specific Proof.

3. [§125] Specific Findings.

E. Instructions.

1. [§126] BAJI Forms.

2. [§127] Necessary Conditions for Application.

F. Illustrations of Application of Doctrine.

1. [§128] Carriers.

2. [§129] Motor Vehicles.

3. [§130] Boats.

4. [§131] Private Airplanes.

5. [§132] Falling Objects.

6. [§133] Defective Appliances and Equipment.

7. [§134] Explosions.

8. [§135] Bursting Bottles.

9. Medical Malpractice.

(a) [§136] Modern Development.

(b) [§137] Illustrations.

(c) Common Knowledge and Expert Testimony.

(1) [§138] Former Restrictive Rule.

(2) [§139] Approach of Later Cases.

(3) [§140] Unusual Result Following Complex Procedure.

10. [§141] Other Situations.

G. Limitations on Application of Doctrine.

1. Defendant's Control.

(a) In General.

(1) [§142] Nature and Theory of Condition.

(2) [§143] Third Person in Control.

(3) [§144] Plaintiff or Decedent in Control.

(b) Constructive Control (Condition Unchanged).

(1) [§145] Bursting Bottles.

(2) [§146] Other Situations.

(c) Multiple Defendants.

(1) [§147] Medical Malpractice.

(2) [§148] Other Situations.

(3) [§149] Special Relationship Between Defendants Not Required.

2. Circumstances Not Indicative of Negligence.

(a) [§150] Balancing Probabilities: In General.

(b) [§151] Slip and Fall Cases.

(c) [§152] Other Situations.

3. Plaintiff's Voluntary Act.

(a) [§153] Contributory Fault.

(b) [§154] Conduct Not Responsible Cause.

(c) [§155] Self-Harm by Psychiatric Patient.

4. Action Based on Strict Liability.

(a) [§156] Exclusive Reliance on Strict Liability.

(b) [§157] Reliance on Strict Liability and Negligence.

XII. INCONSISTENT PRESUMPTIONS

A. [§158] In General.

B. [§159] Validity of Second Marriage.

XIII. CONCLUSIVE PRESUMPTIONS

A. [§160] Nature of Conclusive Presumptions.

B. Statutory Listing.

1. [§161] In Evidence Code.

2. In Other Codes.

(a) [§162] Parentage.

(b) [§163] Other Presumptions.

C. [§164] Nonstatutory Conclusive Presumptions.

D. Constitutionality.

1. [§165] In General.

2. [§166] Parentage.