Select Page

Evidence
University of Baltimore School of Law
Murphy, Joseph F.

EVIDENCE

Judge Murphy – Spring 2013

I. Judicial Notice

a. Judicial Notice of Facts

i. F.R.E. 201. Judicial Notice of Adjudicative Facts

1. Judicially noticed fact must be one not subject to reasonable dispute in that it is either

a. Generally known within the territorial jurisdiction of the trial court; or

b. Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned

2. Court may

a. Take judicial notice on its own

b. Must take judicial notice if a party requests it and the court is supplied with the necessary information

ii. Adjudicative Facts

1. Normally left to the jury to determine in its deliberations at the end of the case

2. Must usually be the subject of formal proof

iii. Notorious Facts

1. Test: Is this fact so notorious (well known) that can presume every reasonable person in the jurisdiction would know it

iv. Verifiably Certain Facts

1. Can find the fact out by reference to a source whose reliability cannot be reasonably questioned

v. Legislative Facts

1. Brandies Brief – briefs filed on issue of statutory, constitutional interpretation, would support his argument with the kind of info that allowed to take into consideration when interpreting a statute

2. Political Facts

a. Issue of whether someone is entitled to diplomatic immunity – consults governmental body in charge of that

vi. Varcoe v. Lee

1. Test: If fact was common everyday knowledge that everyone within district could be presumed to know; was it certain or indisputable that was a business district

a. Rule that it was indisputable – was a business district

2. Don’t have to offer formal proof of a fact that is so well known that every intelligent person in the jurisdiction of the court can be presumed to know it

3. For something to be proven to be general knowledge and notoriety:

a. Is the fact one of common everyday knowledge in that jurisdiction, which everyone of average intelligence of things about him can be presumed to know

b. Is it certain and indisputable

4. Three material requests

a. Matter of which a court will take judicial notice must be a matter of common and general knowledge

b. Matter properly a subject of judicial notice must be known (well established and authoritatively settled)

c. Must be known within the limits of the jurisdiction of the court

5. If there is any doubt whatever as to the fact itself or as to it being a matter of common knowledge evidence should be required

vii. Carter v. State

1. First case involving the duty to preserve for appellate review an alleged mistake by the trial judge

a. Mistakes that can be made:

i. Allow something that should be excluded

ii. Exclude something that should be included

iii. Deliver a jury instruction that shouldn’t be delivered

iv. Refuse to deliver a jury instruction that should

b. These mistakes must be preserved for appellate review

2. Due process requires that a criminal defendant be informed at trial of the facts of which the Court is taking judicial notice

3. When judicial notice is taken without warning to the parties the aggrieved parties remedy is to request a hearing if the case is still pending or to petition for a rehearing – failure to take these action usually renders the court’s decision to take judicial notice nonappealable

b. Judicial Notice of Applicable Law

i. CJ 10-201. Annotated Code of the Public General Laws

1. See printed info

ii. CJ 10-202. Uniform Proof of Statutes Act

1. Printed books or pamphlets

a. (a) Printed books or pamphlets purporting on their face to be the session or other statutes of the United States, any of the United States or its territories, or of a foreign jurisdiction, and to have been printed and published by the authority of a state, territory, or foreign jurisdiction or proved to be commonly recognized in its courts, shall be received in the courts of the State as prima facie evidence of the statutes.

2. Construction and application

a. (b) This section shall be so interpreted and construed to effectuate its general purposes to make uniform the law of those states which enact it.

3. Citation of section

a. (c) This section may be cited as the Maryland Uniform Proof of Statutes Act.

iii. CJ 10-203. Public Laws, Ordinances, Regulations, Resolutions, and Private Laws and Resolutions

1. Public laws, ordinances, regulations, and resolutions judicially noticed or read in evidence

a. (a)(1) The public laws, ordinances, regulations, and resolutions approved and enacted by a county or municipal corporation of the State, the Mayor and City Council of Baltimore, the Maryland-National Capital Park and Planning Commission, or the Washington Suburban Sanitary Commission, shall be judicially noticed or read in evidence from the printed volumes or from a true copy of an amendment published by the authority of the county or municipal corporation.

b. (2) The contents of the Maryland Register and the Code of Maryland Regulations shall be judicially noticed from the official text of those publications.

2. Private laws and resolutions read in evidence

a. (b) The private laws and resolutions published by the authority of the State may be read in evidence from the printed statute book.

iv. CJ 10-501. Judicial Notice of Common Law and Statutes of Other Jurisdictions

1. Every court of this State shall take judicial notice of the common law and statutes of every state, territory, and other jurisdiction of the United States, and of every other jurisdiction having a system of law based on the common law of England.

v. CJ 10-502. Information Acquired by Court

1. The court may inform itself of those laws in the manner it deems proper, and the court may call upon counsel to aid it in obtaining appropriate information.

vi. CJ 10-503. Determination of Laws by Court

1. The determination of the laws shall be made by the court and not by the jury, and shall be reviewable. The court shall grant instructions to the jury, applying foreign law to the facts of the case as if the foreign law were domestic law. In nonjury proceedings the court shall apply foreign law to the facts of the case, as would be proper if foreign law were domestic law.

vii. CJ 10-504. Evidence of Foreign Laws

1. A party may also present to the trial court any admissible evidence of foreign laws, but, to enable a party to offer evidence of the law in another jurisdiction or to ask that judicial notice be taken of it, reasonable notice shall be given to the adverse parties either in the pleadings or by other written notice.

viii. CJ 10-505.Law of Other Jurisdictions

1. The law of a jurisdiction other than those referred to in § 10-501 of this subtitle shall be an issue for the court, but shall not be subject to the provisions concerning judicial notice.

ix. Mallick v. Mallick

1. When have law of a foreign country that is a fact that evidence must be presented on

II. Competency to Testify

a. Child and/or Mentally Imparied Person

i. CJ 9-103. Testimony from Child

1. In a criminal trial, the age of a child may not be the reason for precluding a child from testifying.

ii. Jones v. State

1. Qualifying Children to take the Oath: Two tasks

a. Truth v. lie

b. Morality

2. Look to

a. Child victims personal knowledge of the event

b. Certainty that the statement was made

c. Apparent motive to fabricate or exhibit partially by the child victim

d. Whether the statement was spontaneous

e. Timing of the statement

f. Whether the child victims young age makes it unlikely that the child victims expected knowledge and experience

3. Whether the witness has intelligence enough to make it worthwhile to hear him at all and whether he feels the duty to tell the truth; essential requirements are:

a. Capacity for observation

b. Capacity for recollection

c. Capacity for communication including the ability to understan

– included in that right is the right to testify himself and should he decide it is in his favor to do so

ii. MD rule: a witness who has undergone hypnosis may testify what the witness remembered before the hypnosis but no new recollection can be testified to

III. Relevancy and its Counterweights

a. Opening the Door & the Rule of Completeness Doctrines

i. FRE 106. Remainder of or Related Writings or Recorded Statements

1. If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part–or any other writing or recorded statement–that in fairness ought to be considered at the same time.

ii. Two Tests

1. Materiality

a. If jury had to decide issue to resolve case then it was a material issue

2. Relevancy

a. Will the reception of this evidence help the jury resolve this issue

i. If yes then the evidence is relevant

b. Ask does this evidence assist the jury in deciding an issue that is of consequence

c. Irrelevant evidence is not admissible

iii. Conyers v. State

1. State called witness to testify about a convo that had with Conyers during which admitted that he was in possession of weapons that were relevant to the murder

a. State is entitled to introduce evidence statements that defendant made to the witness

i. Admission exception works – Plaintiff can introduce anything Defendant said/wrote/did subject to the rules of relevancy and privilege

2. Can’t put a different statement made at a different point in time into question on cross – another convo between the two at a different time and place wasn’t something that had been opened by the testimony

3. Right of the opponent to put in the remainder of a convo/writing is universally conceded and the only question can be as to the scope and limits of the right

a. No utterance irrelevant to the issue is receivable

b. No more of the remainder of the utterance than concerns the same subject; and is explanatory of the first part is receivable

c. The remainder thus received merely aids in the constitution of the utterance as a whole and isn’t in itself testimony

4. Doctrine of completeness is further limited in that the remainder of a writing/convo sought to be introduced must not be irrelevant and should be excluded if the danger of prejudice outweighs the explanatory value

iv. State v. Werner

1. Convicted of child abuse

2. Victim testified about abuse on stand – during direct questioned about why she took so long to report – testified that wasn’t going to report but when found out that same thing had happened to her little sister decided that she had to report

3. Anticipatory rehabilitation isn’t permitted – unless cross opened the door to it then the state couldn’t go into it

4. General Exclusionary Rule

a. Exceptions to general exclusionary rule that are well recognized, evidence can be admitted when it tends to establish:

i. Motive

ii. Intent

iii. Absence of mistake

iv. A common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other

v. The identity of the person charged