Ch4. Evidence — Types of Evidence and the Burden of Proof

What Is Evidence?

Evidence:
Any material, testimony, or exhibit used to persuade
  the trier of fact (judge or jury) that a disputed
  fact exists or does not exist.

Facts requiring proof:
  Any element of a claim or defense that is genuinely
  disputed must be established by sufficient evidence.

Facts NOT requiring proof:
① Admitted facts:
     A party's formal admission in pleadings, stipulations,
     or on the record (judicial admission — FRE 801(d)(2)).
② Facts subject to judicial notice (FRE 201):
     Adjudicative facts generally known in the jurisdiction
     or capable of accurate, ready determination from
     unquestionable sources.
③ Matters of law:
     Statutory text, constitutionality, and legal rules
     are determined by the court, not proven by evidence.

Types of Evidence

Documentary evidence (FRE 1001–1008):
  Evidence consisting of writings, recordings, or photographs.
  Best-evidence rule: original document required to prove
    its content (unless an exception applies).

  Operative documents (legally dispositive):
    Contracts, promissory notes, deeds, wills — the
    document itself IS the legal act.
    → Strong probative value; content presumed accurate
      if authentic.

  Reporting / narrative documents:
    Diaries, receipts, business records (FRE 803(6)) —
    documents that record facts rather than create them.
    → Admitted under hearsay exceptions;
      credibility evaluated by the trier of fact.

Testimonial evidence:
  Witness testimony (FRE 601–615):
    Any person (other than a party) competent to testify.
    Direct and cross-examination.
    Lay opinion limited (FRE 701); expert opinion (FRE 702).

  Party admissions / party examination:
    Statements by a party-opponent are non-hearsay
    (FRE 801(d)(2)) and may be introduced by the other side.

Expert testimony (FRE 702 — Daubert standard):
  Expert must have sufficient expertise, methodology must
  be scientifically reliable, and testimony must fit the facts.
  Medical, accounting, engineering opinions.

Real / physical evidence:
  Tangible objects — the actual item or a demonstrative exhibit.
  Authenticated under FRE 901 before admission.

Requests for production / subpoenas (FRCP 34, 45):
  Party may demand documents, ESI, or things from
  an opposing party (FRCP 34) or third party (FRCP 45).
  Unjustified refusal → adverse-inference instruction
  or other discovery sanction (FRCP 37).

Standard of Proof and Burden Allocation

Standard of proof:
  Civil cases: preponderance of the evidence
    (more likely than not — > 50%)
    Lower than the criminal "beyond reasonable doubt" standard.
  Some civil issues require clear and convincing evidence
    (fraud, punitive damages, certain constitutional claims).

Preliminary / interim showing (analogous to 소명):
  Motions for preliminary injunction require the movant to
  show a likelihood of success on the merits plus irreparable
  harm — a lower evidentiary threshold than at trial
  (eBay Inc. v. MercExchange; Winter v. NRDC).

Burden of proof — two components:
  ① Burden of production (burden of going forward):
       Party must produce enough evidence to avoid
       judgment as a matter of law (FRCP 50(a)).
  ② Burden of persuasion:
       Party must persuade the trier of fact to the
       required standard.

Allocation of the burden:
  Plaintiff bears the burden on every element of each claim.
  Defendant bears the burden on every affirmative defense
  (statute of limitations, comparative fault, etc.).
  Burden allocation follows the substantive law of the claim.

Free Evaluation of Evidence (FRE 104 / Jury Role)

Jury as trier of fact:
  In jury trials, the jury freely evaluates the weight
  and credibility of evidence — no fixed rules dictate
  how much weight each piece receives.
  Jury instructions guide evaluation but do not mandate
  specific outcomes for specific evidence.

Limits on free evaluation:
  Must be based on the evidence admitted at trial.
  Cannot contradict uncontroverted physical facts.
  Verdict cannot be the product of passion or prejudice
  (grounds for new trial — FRCP 59).
  Judge may grant judgment as a matter of law if no
  reasonable jury could find for the non-moving party
  (FRCP 50).

Bench trial (judge as fact-finder):
  Judge evaluates evidence freely but must explain
  findings of fact and conclusions of law (FRCP 52(a)).
  Findings reviewed for clear error on appeal.

Legal-evidence / fixed-weight rules (historical):
  Common law once imposed fixed rules (e.g., two-witness rule
  for treason). Modern FRE abandoned fixed-weight rules
  in favor of free jury evaluation.

Circumstantial evidence:
  Indirect evidence from which an inference may be drawn.
  Fully admissible; no lesser weight as a matter of law
  (Holland v. United States; pattern jury instructions).
  A case may be proven entirely by circumstantial evidence.

Key Concept Cards

Burden of Proof Allocation ★★★★★ : Plaintiff bears the burden on each element of every claim. Defendant bears the burden on every affirmative defense. Memory hook: You assert it → you prove it

Operative vs. Narrative Documents ★★★★★ : Operative (contracts, notes) — the document IS the legal act; strong presumptive force once authentic. Narrative (diaries, receipts) — records facts; weight determined by fact-finder. Memory hook: Operative = legal act itself; narrative = records a fact

Preponderance Standard ★★★★☆ : Civil default is > 50% likelihood. Some issues require clear and convincing evidence. Criminal standard (beyond reasonable doubt) does not apply. Memory hook: Civil = more likely than not

Practice Quizzes

Q. What is the difference in probative force between an operative document and a narrative document?

An operative document (contract, promissory note) constitutes the legal act itself — once authenticated, its terms are presumed to reflect the parties’ agreement and the act is presumed to have occurred. A narrative document (diary, receipt, business record) merely records a fact and is admitted under a hearsay exception (FRE 803); its credibility and weight are for the trier of fact to assess. Operative documents generally carry stronger presumptive force.

Q. What is the difference between the civil preponderance standard and the clear-and-convincing standard?

Preponderance of the evidence (the civil default): the fact-finder must believe the proponent’s version is more likely true than not (> 50%). Clear and convincing evidence: a higher standard requiring a firm belief or conviction that the allegation is true — used for fraud, punitive damages, some equitable remedies, and certain constitutional claims. The criminal “beyond reasonable doubt” standard applies only in criminal proceedings.