burden of proving claim in Arizona

2023See Brewer v. Williams, 430 U.S. 387, 404 (1977).

2023See Brewer v. Williams, 430 U.S. 387, 404 (1977) (observing that “it was incumbent upon the state to prove ‘an intentional relinquishment or abandonment of a known right or privilege.’” (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938))); Barker v. Wingo, 407 U.S. 514, 529 (1972) (stating that, for claimed waiver of fundamental rights, the Supreme Court has “placed the entire responsibility on the prosecution to show that the claimed waiver was knowingly and voluntarily made”).

2021Mesa bears the burden of proving an error occurred, id. at 568, ¶ 23 , and “that (1) the error went to the foundation of the case, (2) the error took from [Mesa] a right essential to his defense, or (3) the error was so egregious that he could not possibly have received a fair trial,” State v. Escalante, 245 Ariz. 135 , 142, ¶ 21 (2018).

2021For the first two prongs, Mesa must also make a separate showing of prejudice and “bears the burden of persuasion at each step.” Escalante, 245 Ariz. at 142, ¶ 21 (citing Henderson, 210 Ariz. at 567–68, ¶¶ 19, 26). ¶16 Here, Mesa contends that this error, made outside of the presence of the jury, deprived him of a fair trial.

2023See Brewer v. Williams, 430 U.S. 387, 404 (1977) (observing that “it was incumbent upon the state to prove ‘an intentional relinquishment or abandonment of a known right or privilege.’” (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938))); Barker v. Wingo, 407 U.S. 514, 529 (1972) (stating that, for claimed waiver of fundamental rights, the Supreme Court has “placed the entire responsibility on the prosecution to show that the claimed waiver was knowingly and voluntarily made”).

2020See, e.g., State v. Greenawalt, 128 Ariz. 150, 158 (1981) (waiver of right to counsel); State v. Duffy, 247 Ariz. 537 , 547, ¶ 24 (App. 2019) (waiver of the right to conflict- free counsel); State v. Jones, 119 Ariz. 555, 557 (App. 1978) (waiver of right to remain silent); see also Brewer v. Williams, 430 U.S. 387, 404 (1977) (observing that “the proper standard to be applied in determining the question of waiver as a matter of federal constitutional law—that it was incumbent upon the State to prove ‘an intentional relinquishment or abandonment of a known right or privilege’” (citation omitted

2023See Brewer v. Williams, 430 U.S. 387, 404 (1977) (observing that “it was incumbent upon the state to prove ‘an intentional relinquishment or abandonment of a known right or privilege.’” (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938))); Barker v. Wingo, 407 U.S. 514, 529 (1972) (stating that, for claimed waiver of fundamental rights, the Supreme Court has “placed the entire responsibility on the prosecution to show that the claimed waiver was knowingly and voluntarily made”).

2020See, e.g., State v. Greenawalt, 128 Ariz. 150, 158 (1981) (waiver of right to counsel); State v. Duffy, 247 Ariz. 537 , 547, ¶ 24 (App. 2019) (waiver of the right to conflict- free counsel); State v. Jones, 119 Ariz. 555, 557 (App. 1978) (waiver of right to remain silent); see also Brewer v. Williams, 430 U.S. 387, 404 (1977) (observing that “the proper standard to be applied in determining the question of waiver as a matter of federal constitutional law—that it was incumbent upon the State to prove ‘an intentional relinquishment or abandonment of a known right or privilege’” (citation omitted

2020See, e.g., State v. Greenawalt, 128 Ariz. 150, 158 (1981) (waiver of right to counsel); State v. Duffy, 247 Ariz. 537 , 547, ¶ 24 (App. 2019) (waiver of the right to conflict- free counsel); State v. Jones, 119 Ariz. 555, 557 (App. 1978) (waiver of right to remain silent); see also Brewer v. Williams, 430 U.S. 387, 404 (1977) (observing that “the proper standard to be applied in determining the question of waiver as a matter of federal constitutional law—that it was incumbent upon the State to prove ‘an intentional relinquishment or abandonment of a known right or privilege’” (citation omitted

2017Id. at 567, ¶ 20 . ¶3 In State v. Prince, our supreme court defined impermissible "stakeout questions" as questions that "'ask a juror to speculate or precommit to how that juror might vote based on any particular facts.'" 226 Ariz. 516, 529, ¶ 35 (2011) (quoting U.S. v. Fell, 372 F. Supp. 2d. 766, 770 (D.

2017Cf. State v. Ault, 150 Ariz. 459, 464 , 724 P.2d 545, 550 (1986) (noting that the state bears the burden of proving an exception to the warrant requirement). ¶ 16 In Estrada , the court stated: [W]hen a person is receiving medical treatment against his or her will, the exception of § 28-1388(E) allowing blood draws without a warrant does not apply.

2017Cf. State v. Ault, 150 Ariz. 459, 464 , 724 P.2d 545, 550 (1986) (noting that the state bears the burden of proving an exception to the warrant requirement). ¶ 16 In Estrada , the court stated: [W]hen a person is receiving medical treatment against his or her will, the exception of § 28-1388(E) allowing blood draws without a warrant does not apply.

2015It is only after the hearing, where Gingerich has the burden of proving his claim by a preponderance of the evidence, see Arizona Rule of Criminal Procedure 32.8(c); State v. Verdugo, 183 Ariz. 135, 139 , 901 P.2d 1165, 1169 (App. 1995), that the court can make the required findings and decide what relief, if any, may be appropriate based on the evidence and the court’s analysis of the evidence.

2015It is only after the hearing, where Gingerich has the burden of proving his claim by a preponderance of the evidence, see Arizona Rule of Criminal Procedure 32.8(c); State v. Verdugo, 183 Ariz. 135, 139 , 901 P.2d 1165, 1169 (App. 1995), that the court can make the required findings and decide what relief, if any, may be appropriate based on the evidence and the court’s analysis of the evidence.

2015This proposition is reflected in the rule itself, which states: “If the adverse party does not so respond [with evidence showing specific facts], summary judgment, if appropriate, shall be entered against the adverse party.” Allyn, 167 Ariz. at 196, 805 P.2d at 1017 (internal citations omitted); see also Schwab, 207 Ariz. at 60, ¶ 15, 83 P.3d at 60 (“The burden of showing that no genuine issue of material fact exists rests with the party seeking summary judgment.”). ¶12 Here, the Figaris’ failure to respond to the motion for summary judgment did not automatically entitle Estrada to judgment ag

2015This proposition is reflected in the rule itself, which states: “If the adverse party does not so respond [with evidence showing specific facts], summary judgment, if appropriate, shall be entered against the adverse party.” Allyn, 167 Ariz. at 196, 805 P.2d at 1017 (internal citations omitted); see also Schwab, 207 Ariz. at 60, ¶ 15, 83 P.3d at 60 (“The burden of showing that no genuine issue of material fact exists rests with the party seeking summary judgment.”). ¶12 Here, the Figaris’ failure to respond to the motion for summary judgment did not automatically entitle Estrada to judgment ag

2015See Henderson, 210 Ariz. at 567-69, ¶¶ 19-26 , 115 P.3d at 607-09 . 10 Appellant also admitted having a prior felony conviction. 7 STATE v. CARDONA RODRIGUEZ Decision of the Court ¶25 “[A] trial court has a duty to instruct on the law relating to the facts of the case when the matter is vital to a proper consideration of the evidence, even if not requested by the defense and failure to do so constitutes fundamental error.” State v. Avila, 147 Ariz. 330, 337 , 710 P.2d 440, 447 (1985) (citations omitted).

2015See Henderson, 210 Ariz. at 567-69, ¶¶ 19-26 , 115 P.3d at 607-09 . 10 Appellant also admitted having a prior felony conviction. 7 STATE v. CARDONA RODRIGUEZ Decision of the Court ¶25 “[A] trial court has a duty to instruct on the law relating to the facts of the case when the matter is vital to a proper consideration of the evidence, even if not requested by the defense and failure to do so constitutes fundamental error.” State v. Avila, 147 Ariz. 330, 337 , 710 P.2d 440, 447 (1985) (citations omitted).

2015This proposition is reflected in the rule itself, which states: “If the adverse party does not so respond [with evidence showing specific facts], summary judgment, if appropriate, shall be entered against the adverse party.” Allyn, 167 Ariz. at 196, 805 P.2d at 1017 (internal citations omitted); see also Schwab, 207 Ariz. at 60, ¶ 15, 83 P.3d at 60 (“The burden of showing that no genuine issue of material fact exists rests with the party seeking summary judgment.”). ¶12 Here, the Figaris’ failure to respond to the motion for summary judgment did not automatically entitle Estrada to judgment ag

2015This proposition is reflected in the rule itself, which states: “If the adverse party does not so respond [with evidence showing specific facts], summary judgment, if appropriate, shall be entered against the adverse party.” Allyn, 167 Ariz. at 196, 805 P.2d at 1017 (internal citations omitted); see also Schwab, 207 Ariz. at 60, ¶ 15, 83 P.3d at 60 (“The burden of showing that no genuine issue of material fact exists rests with the party seeking summary judgment.”). ¶12 Here, the Figaris’ failure to respond to the motion for summary judgment did not automatically entitle Estrada to judgment ag

2014See Madison v. Groseth, 230 Ariz. 8, 10-13, ¶¶ 1, 5, 8-15 , 279 P.3d 633, 635-638 (App.2012) (interpreting A.R.S. § 33-811(C) and explaining that the mortgagor “waived all defenses and objections to the sale” by failing to obtain an injunction or TRO prior to the sale). ¶43 On remand, Steinberger bears the burden of proving her claim that Respondents lack the authority to conduct a trustee’s sale.

2014See Madison v. Groseth, 230 Ariz. 8, 10-13, ¶¶ 1, 5, 8-15 , 279 P.3d 633, 635-638 (App.2012) (interpreting A.R.S. § 33-811(C) and explaining that the mortgagor “waived all defenses and objections to the sale” by failing to obtain an injunction or TRO prior to the sale). ¶43 On remand, Steinberger bears the burden of proving her claim that Respondents lack the authority to conduct a trustee’s sale.

2014See id.; State v. Lavers, 168 Ariz. 376, 385 , 814 P.2d 333, 342 (1991) (recognizing that before this court engages in fundamental error review, it must first find the trial court committed some error). ¶18 In this case, Appellant fails to establish error, let alone fundamental error.

2014See id.; State v. Lavers, 168 Ariz. 376, 385 , 814 P.2d 333, 342 (1991) (recognizing that before this court engages in fundamental error review, it must first find the trial court committed some error). ¶18 In this case, Appellant fails to establish error, let alone fundamental error.

2013Because a defendant is presumed innocent, the state bears the burden of proving an exception to the right to bail, including the burden “to demonstrate the proof is evident or the presumption great that the accused committed the offense at issue.” Id. ¶¶ 27, 47 (discussing article II, § 22(A)(1)); see also Martinez v. Superior Court, 26 Ariz.App. 386, 387 , 548 P.2d 1198, 1199 (App.1976) (state has “burden of showing that the right to bail is limited rather than absolute”). “[I]f the state alleges a defendant is not entitled to bail under the Arizona Constitution, due process requires that the

2013Because a defendant is presumed innocent, the state bears the burden of proving an exception to the right to bail, including the burden “to demonstrate the proof is evident or the presumption great that the accused committed the offense at issue.” Id. ¶¶ 27, 47 (discussing article II, § 22(A)(1)); see also Martinez v. Superior Court, 26 Ariz.App. 386, 387 , 548 P.2d 1198, 1199 (App.1976) (state has “burden of showing that the right to bail is limited rather than absolute”). “[I]f the state alleges a defendant is not entitled to bail under the Arizona Constitution, due process requires that the

2013State v. Garrett, 16 Ariz.App. 427, 429 , 493 P.2d 1232, 1234 (1972).

2013State v. Garrett, 16 Ariz.App. 427, 429 , 493 P.2d 1232, 1234 (1972).

2013Because a defendant is presumed innocent, the state bears the burden of proving an exception to the right to bail, including the burden “to demonstrate the proof is evident or the presumption great that the accused committed the offense at issue.” Id. ¶¶ 27, 47 (discussing article II, § 22(A)(1)); see also Martinez v. Superior Court, 26 Ariz.App. 386, 387 , 548 P.2d 1198, 1199 (App.1976) (state has “burden of showing that the right to bail is limited rather than absolute”). “[I]f the state alleges a defendant is not entitled to bail under the Arizona Constitution, due process requires that the

2013Because a defendant is presumed innocent, the state bears the burden of proving an exception to the right to bail, including the burden “to demonstrate the proof is evident or the presumption great that the accused committed the offense at issue.” Id. ¶¶ 27, 47 (discussing article II, § 22(A)(1)); see also Martinez v. Superior Court, 26 Ariz.App. 386, 387 , 548 P.2d 1198, 1199 (App.1976) (state has “burden of showing that the right to bail is limited rather than absolute”). “[I]f the state alleges a defendant is not entitled to bail under the Arizona Constitution, due process requires that the

2003Thus, the legislature has made clear its intention that a defendant bears the burden of proving the defense of self-defense by a preponderance of the evidence. ¶ 10 “ ‘Power resides with the legislature to define that conduct which will not be tolerated in an ordered society____’” State v. Musser, 194 Ariz. 31, ¶ 9 , 977 P.2d 131, ¶ 9 (1999), quoting State v. Bly, 127 Ariz. 370, 371 , 621 P.2d 279, 280 (1980); see State v. Viramontes, 204 Ariz. 360, ¶ 12 , 64 P.3d 188, ¶ 12 (2003) (“It is not our place to pass on the wisdom of’ legislative decisions concerning criminal procedure.); State v. Ja

2003Thus, the legislature has made clear its intention that a defendant bears the burden of proving the defense of self-defense by a preponderance of the evidence. ¶ 10 “ ‘Power resides with the legislature to define that conduct which will not be tolerated in an ordered society____’” State v. Musser, 194 Ariz. 31, ¶ 9 , 977 P.2d 131, ¶ 9 (1999), quoting State v. Bly, 127 Ariz. 370, 371 , 621 P.2d 279, 280 (1980); see State v. Viramontes, 204 Ariz. 360, ¶ 12 , 64 P.3d 188, ¶ 12 (2003) (“It is not our place to pass on the wisdom of’ legislative decisions concerning criminal procedure.); State v. Ja

2003Thus, the legislature has made clear its intention that a defendant bears the burden of proving the defense of self-defense by a preponderance of the evidence. ¶ 10 “ ‘Power resides with the legislature to define that conduct which will not be tolerated in an ordered society____’” State v. Musser, 194 Ariz. 31, ¶ 9 , 977 P.2d 131, ¶ 9 (1999), quoting State v. Bly, 127 Ariz. 370, 371 , 621 P.2d 279, 280 (1980); see State v. Viramontes, 204 Ariz. 360, ¶ 12 , 64 P.3d 188, ¶ 12 (2003) (“It is not our place to pass on the wisdom of’ legislative decisions concerning criminal procedure.); State v. Ja

2003Thus, the legislature has made clear its intention that a defendant bears the burden of proving the defense of self-defense by a preponderance of the evidence. ¶ 10 “ ‘Power resides with the legislature to define that conduct which will not be tolerated in an ordered society____’” State v. Musser, 194 Ariz. 31, ¶ 9 , 977 P.2d 131, ¶ 9 (1999), quoting State v. Bly, 127 Ariz. 370, 371 , 621 P.2d 279, 280 (1980); see State v. Viramontes, 204 Ariz. 360, ¶ 12 , 64 P.3d 188, ¶ 12 (2003) (“It is not our place to pass on the wisdom of’ legislative decisions concerning criminal procedure.); State v. Ja

2003Thus, the legislature has made clear its intention that a defendant bears the burden of proving the defense of self-defense by a preponderance of the evidence. ¶ 10 “ ‘Power resides with the legislature to define that conduct which will not be tolerated in an ordered society____’” State v. Musser, 194 Ariz. 31, ¶ 9 , 977 P.2d 131, ¶ 9 (1999), quoting State v. Bly, 127 Ariz. 370, 371 , 621 P.2d 279, 280 (1980); see State v. Viramontes, 204 Ariz. 360, ¶ 12 , 64 P.3d 188, ¶ 12 (2003) (“It is not our place to pass on the wisdom of’ legislative decisions concerning criminal procedure.); State v. Ja

2003Thus, the legislature has made clear its intention that a defendant bears the burden of proving the defense of self-defense by a preponderance of the evidence. ¶ 10 “ ‘Power resides with the legislature to define that conduct which will not be tolerated in an ordered society____’” State v. Musser, 194 Ariz. 31, ¶ 9 , 977 P.2d 131, ¶ 9 (1999), quoting State v. Bly, 127 Ariz. 370, 371 , 621 P.2d 279, 280 (1980); see State v. Viramontes, 204 Ariz. 360, ¶ 12 , 64 P.3d 188, ¶ 12 (2003) (“It is not our place to pass on the wisdom of’ legislative decisions concerning criminal procedure.); State v. Ja

2003Thus, the legislature has made clear its intention that a defendant bears the burden of proving the defense of self-defense by a preponderance of the evidence. ¶ 10 “ ‘Power resides with the legislature to define that conduct which will not be tolerated in an ordered society____’” State v. Musser, 194 Ariz. 31, ¶ 9 , 977 P.2d 131, ¶ 9 (1999), quoting State v. Bly, 127 Ariz. 370, 371 , 621 P.2d 279, 280 (1980); see State v. Viramontes, 204 Ariz. 360, ¶ 12 , 64 P.3d 188, ¶ 12 (2003) (“It is not our place to pass on the wisdom of’ legislative decisions concerning criminal procedure.); State v. Ja

2003Thus, the legislature has made clear its intention that a defendant bears the burden of proving the defense of self-defense by a preponderance of the evidence. ¶ 10 “ ‘Power resides with the legislature to define that conduct which will not be tolerated in an ordered society____’” State v. Musser, 194 Ariz. 31, ¶ 9 , 977 P.2d 131, ¶ 9 (1999), quoting State v. Bly, 127 Ariz. 370, 371 , 621 P.2d 279, 280 (1980); see State v. Viramontes, 204 Ariz. 360, ¶ 12 , 64 P.3d 188, ¶ 12 (2003) (“It is not our place to pass on the wisdom of’ legislative decisions concerning criminal procedure.); State v. Ja

2000The trial court erroneously concluded that Husband had the burden of proving factors listed in Spector v. Spector, 23 Ariz.App. 131, 140 , 531 P.2d 176, 185 (1975).

2000The trial court erroneously concluded that Husband had the burden of proving factors listed in Spector v. Spector, 23 Ariz.App. 131, 140 , 531 P.2d 176, 185 (1975).

1993Neal v. Hunt, 112 Ariz. 307, 311 , 541 P.2d 559, 563 (1975); Southwest Cotton, 39 Ariz. at 85, 4 P.2d at 376 .

1993Neal v. Hunt, 112 Ariz. 307, 311 , 541 P.2d 559, 563 (1975); Southwest Cotton, 39 Ariz. at 85, 4 P.2d at 376 .

1990See Leland v. Oregon, 343 U.S. 790 , 72 S.Ct. 1002 , 96 L.Ed. 1302 (1952); State v. Fletcher, 149 Ariz. 187 , 717 P.2d 866 (1986).

1990See Leland v. Oregon, 343 U.S. 790 , 72 S.Ct. 1002 , 96 L.Ed. 1302 (1952); State v. Fletcher, 149 Ariz. 187 , 717 P.2d 866 (1986).