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University of Mississippi School of Law
Rychlak, Ronald J.


SPRING 2014 –


The Federal Rules of Evidence itself was derived from the rules laid out from old common law. It plays more on an understanding of the history and working of the rule, rather than the black letter layout. Most states have adopted the federal rules as a model for their individual state proceedings. For evidence to be admitted there must be a foundation for its introduction into the trial.

The point of evidence is to move something into consideration for the jury and to help further their discussion.

It is extremely crucial (as always) to preserve the record for appeal. You must object and give the specific reason for objecting to the evidence being allowed in or excluded.



Adjudicative Facts:

Judicial notice is used to speed up the process in regards to certain facts that are so well known that it would be pointless to run through the process to get it admitted and into the record. You can also take judicial notice to establish facts that would typically be found in a book like an almanac.

Varcoe v. Lee – Here a guy was speeding down a street and killed a child. The judge explained that the street was a business district and the defendant said this tainted the jury. Appellate court said that the fact the street was a business district because it was such a common fact. The knowledge of this by the general public was so overwhelming that a jury could not find otherwise.

Federal Rule of Evidence 201 pertains to judicial notice. These facts must be not subject to a reasonable dispute, capable of accurate and ready determination, and generally known within the jurisdiction of the trial court. Typically judicial notice should be asked for in a side bar with the judge.

Judicial notice concerns areas of a case that you don’t have to prove and more so are accepted as common knowledge and understanding. These may or not be things that are central to proving a point. However we are able to take certain things as fact without having to argue over the fact that it is fact.
Almanac type facts, common knowledge in an area or jurisdiction, are things of judicial notice. Things like only women can get pregnant, a certain city is within a state, etc.
However a judge may not take judicial notice of a fact known only to himself. A judge saying “I know,” is not the same as the community knowing. FRE 201 requires that the matter be readily verifiable and commonly known. Pina v. Henderson.
Anything that can be objectively verified can be taken as judicial notice. Subjective facts may not be taken as notice.

When a judge takes judicial notice of a fact it can be dispositive of the case and resolve the issue in civil cases. In a civil case the court shall instruct jury that it must accept fact as conclusive. In criminal cases a judge can instruct a jury that they may find a certain fact, but the judge will not resolve the issue once and for all if it goes against the defendant. The fact being admitted empowers the jury to find in favor of the defendant.

A judge may also take judicial notice of previous documents filed, not necessarily to establish the facts in the records but more so to establish the filing of documents. When you take judicial notice of almanac type facts you need to specifically direct the court to take it of a specific fact. These are dates of specific actions, times of sunrise, geographic facts, etc.

State v. Graham – Guy sped through radar beam and was charged with speeding. Appealing the use of judicial notice that a radar device is a device that can soundly establish speed. Case establishes that radar is scientifically sound and takes judicial notice that the devices work for this purpose.

Nowadays you only have to prove how it was used, if the person could properly use it, and that the device was not malfunctioning.
This case shows judicial notice used to take notice of the specific science of a device.
This helps skip the step that would force the parties to argue over the science behind it all each and every case. Kind of goes with the Daubert analysis for expert witnesses to explain the science of the devices. Drastically saves on the expenses associated with the investigation and expert witnesses

Fry v. United States – Offered evidence of proof that was a lie detector test. Court said back then that these devices were not readily identifiable to prove something. As a general standard the courts say that if there are enough scientists that believe a certain fact then it will be deemed readily identifiable. However the flaw in this is that someone may recently discover a new fact but it has not caught on soon enough to properly be used in a case. (Fry standard has been since overruled for proving scientific facts).

Lie detector tests are sometimes not admissible.
Need to establish that what you are trying to get taken in as judicial notice is generally established as science. Need to lay the groundwork that the thing is established as science.
Explain to the judge and then eventually to the jury that the science is established and sound.
test would take notice of scientific evidence if there were general scientific acceptance of the method. In Fry they excluded lie-detector tests because it was not yet accepted.


Courts don’t normally take judicial notice of law within their home state or of a federal law. However they may take notice of a foreign law.

Legislative Facts:

Courts can take in facts that were considered by a legislature in drafting particular statutes. This can place a judge into a position of judging what the social impact is of certain laws. Judge must make a determination on the determination that the legislature put forth. The argument is whether the law is rationally related to the social concern; whether the law is justified by the facts considered by the legislature. In the commentary to the Federal Rules of Evidence the Brandies Brief was discussed as an example of courts using legislative facts in their decision process. Legislative facts and taking judicial notice of them are not given a guideline in the rules except for that judges have much leeway in their choices of taking or not taking judicial notice of them.

To an extent taking judicial notice of legislative facts is inconsistent with the right to cross-examine. There is no ability to cross-examine when the judge takes judicial notice of the facts.
The whole purpose of this is still that the legislature had a rational basis for doing what it did, not necessarily that they were 100% correct.

Meant to show there was a great problem and demonstrate the need for the legislation; or at least why the legislature felt there was a need.

A court can change their mind on judicial notice of facts over time.

Mueller v. Oregon – Statute here limited the number of hours that women could work per week. Challenged as unconstitutional. Brandies submitted a brief that gave multiple authorities of state legislatures discussing the reason for putting in placing similar statutes. Here the state only had to present a rational relationship for doing what it did. The judge only has to say that there was a rational basis for enacting the statute, not that you are necessarily correct as a whole.

Roe v. Wade – Burger concurs to make a point about scientific and medical data being dated and still relied upon down the road even as things change. Shows it can be a problem continually taking judicial notice of a fact based upon something old and dated.

Federal Rule of Evidence 201 – Judicial Notice of Adjudicative Facts

(b) A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) general known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

(f) Judicial notice can be taken at any time.

(g) Explains that in civil proceedings the judge shall instruct the jury to accept as conclusive any judicially noticed fact and in criminal cases that the jury shall

clusion. It requires you to put the pieces together to reach the conclusion, rather than just going with the stated conclusion. No special rules apply to circumstantial evidence.

Contesting Evidence; Federal Rule of Evidence 103 Rulings on Evidence – The Rules provides substantive standards that can be introduced into court as evidence. Things such as time during the trial are regulated. Rule 103 pertains to rulings made on evidence by a court. A substantial right of the opponent and there must be an objection or offer of proof made by the opposing party to rebut the presumption that the admission or denial of the evidence was within the court’s discretion.

You must explain to the judge the exact basis is for the evidence being inadmissible in your objection; state the specific ground for the objection. Best to get it out before the jury hears any statement on the evidence. Must be a timely, specific objection. (Used when evidence is admitted)
An offer of proof must also be made to exclude evidence that the substance of the evidence is already known. Basically you need to make an offer that the evidence should be admitted for whatever reason. The offer of proof also helps to preserve it on appeal. (Used when evidence is excluded)
Must object to take it up on appeal, unless it falls under (d) that would classify as being plain error.

Relevancy and Materiality: If something is relevant it tends to make the existence of some proposition more likely to be true (it tends to prove or disprove a proposition). Defense will be saying that the evidence is not likely to be probative to prove a proposition. Must link the evidence to a part of the case. Rule 401 defines relevancy as having the tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable. Any tendency to persuade can allow for the admission of evidence.

The key to rule 401 is the word “any.” It suggests a very broad admission standard.
If the proposition itself is one provable in the case at bar, or if it in turn forms a further link in a chain of proof the final proposition of which is provable in the case at bar, then the offered item of evidence has probative value in the case.
Evidence is material when it is relevant and goes to the substantial matters in dispute, or has a legitimate and effective influence or bearing on the decision.

Federal Rule of Evidence 401 Definition of “Relevant Evidence” – Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence is relevant.

United States v. Curtis – Defendant is appealing a conviction for rape. They had fibers that were similar. Guy had said in a prior statement that if a girl wouldn’t have sex with him then he would kill them and hurt them. Court let the testimony in because it has some tendency to show how the guy would behave in a situation like this one; court says this is plainly relevant. Relied on Rule 402.

Things that would go to far are things that you wouldn’t even bother offering.
Courts will typically allow a couple pictures of the victim in. It creates some emotional connection between the jury and the prosecution.