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St. Johns University School of Law
Shea, Thomas F.

Shea Evidence Fall 2011

Judicial Notice: substitute for evidence; proves a fact at issue with NO EVIDENCE!

1. Adjudicative Fact: FRE 201

a. Must be one not subject to reasonable dispute

i. Generally known in the territorial JD of the court; OR

1. Days of the week; human life expectancy, height, things that happen according to the ordinary course of human nature.

ii. Capable of accurate and ready determination by resort to indisputable sources

b. Court can take JN, whether requested or not!

i. BUT it MUST take JN, if requested & supplied with the necessary information

c. JN may be taken at any stage of the proceeding, even on appeal.

i. Exception: court may NOT take JN on appeal in a criminal case

d. The jury is instructed:

i. Civil Case: to accept as conclusive any fact judicially noticed.

ii. Criminal Case: that it MAY, but is not required to, accept as conclusive any fact judicially noticed.

2. Legislative Fact

a. ALL that is required is that the legislature had a rational basis for passing the law

i. Does NOT have to be an indisputable fact.

1. Michael M. v. Superior Court: court upheld statutory rape law that did not punish females, b/c the risk of pregnancy constitutes deterrence to women, while no similar natural sanction deters males.

2. Veimeister v. White: court took JN of the fact that it is the common belief of the people of the state that vaccination is preventive of smallpox and that the statute was enacted in a reasonable and proper exercise of the police power.

3. Law

a. Court determines the law by taking JN.

i. Judge MUST take JN of: CL, Constitution, law of every state, etc…

ii. Judge MAY take JN of private acts and resolutions of Congress, and the law of foreign Countries.

1. BUT judge MUST take JN of these matters if:

a. It has been requested;

b. Notice has been given to the other party; AND

c. Judge is provided with sufficient evidence

Presumptions: Partial Release of Obligation to Produce Evidence

1. In a civil case, if you prove fact A, the jury MUST find fact B (unless the presumption is rebutted).

a. Generally, the party attempting to rebut the presumption bears the burden of disproving it, usually by a preponderance, unless

i. It is a strong presumption, which requires clear and convincing evidence, such as…

1. Presumption Against Suicide

2. Holding out as Married

a. If you do not have a marriage certificate, but have held out as being married, there is a presumption that you are validly married.

3. Common Disaster

a. Presumption that each survives the other with respect to each other’s property.

4. Presumption of Death

a. After 3 years of continuous, unexplained, unheard from absence the court presumes death (may be established earlier, if there is circumstantial evidence)

b. If a presumption is rebutted:

i. In New York, the presumption is NOT thrown out; all the evidence is presented to the jury to determine whether they believe the evidence rebutting the presumption.

1. Piwowarksi v. Cornwell: presumption that person driving another’s car has his permission. The credibility of the witnesses who testified to rebut the presumption was exclusively for the jury.

ii. In Federal Court, if ANY evidence to the contrary is offered the presumption is DEAD

c. If there are 2 conflicting presumptions, the jury will NOT be instructed as to any presumptions (i.e. they cancel each other out!)

i. Legille v. Dann: 2 conflicting presumptions: (1) mail arrives in due course and (2) federal employees dated and stamped the patents when they arrived. Court held that they cancelled each other out.

2. In a criminal case, if you find A, the jury is PERMITTED to find B (not required).

a. Failure to Call a Witness = witness would: (1) not have helped the party’s case OR (2) would have damaged it.

i. Court cannot comment upon D’s failure to testify or otherwise come produce evidence, BUT an adverse inference may be drawn if:

1. If D takes the Stand and fails to call a naturally favorable witness (i.e. likely to testify in D’s favor) under his control, who has information material to the case.

a. People v. Rodriguez: D failed to call his wife, thus the jury was entitled to consider that fact in assessing the strength of the evidence offered by the People on the issue which she was in a position to controvert.

2. If D calls a witness on his behalf, but does not take the stand:

a. Adverse inference CANNOT be drawn against D; BUT…

b. May be drawn if D calls some witness, but not others that would be favorable.

al BRD.

1. Does not have to be a true confession

a. Just voluntarily made without pressure (i.e. threats, force, overly nice)

ii. If the confession is found involuntary

1. Cannot be used in government’s case-in-chief, BUT

2. May be used to impeach D if he takes the stand.

iii.If the confession is found voluntary

1. Prosecution must then prove to the jury that the confession was voluntary BRD.

b. Federal Court

i. Prosecution must prove at least by a preponderance that the confession was voluntary (i.e. legal)

3. Miranda Rights

a. Cannot get answers from D unless Miranda Warnings has been given.

i. If there is a failure to read Miranda Rights, the confession will be suppressed.

1. Cannot have D confess without Miranda and then give him the warning and have him re-confess, HOWEVER…

a. If there is a sufficient interval of time between the confessions then that MAY be sufficient to allow the confession in court.

ii. Fruits of the Forbidden Tree

1. New York: any leads from the confession will be suppressed.

2. Federal Court: leads from the confession CAN be used.

Province of Court and Jury

1. Generally, the judge decides questions of law and the jury decides questions of fact.

a. Every essential element of a crime = question of fact (whether there is a conflict or not)

i. Exceptions: (1) stipulations; (2) admissions; (3) undisputed facts

b. The Jury determines the credibility of a witness; NOT the judge

i. People v. Walker: court held it was error for the court to charge that the goods were stolen and in D’s possession b/c it was the role of the jury to determine whether the witnesses were credible.