A. ALTERNATIVES TO FORMAL PROOF
1. Judicial Notice – Federal rule only applies to adjudicative facts – legislative facts under the federal rule are not considered judicial notice, but part of the courts reasoning.
a. For exam analysis of judicial notice – determine whether:
§ Mandatory – judicial notice must be taken (federal or state law or rule)
§ Permissive – judicial notice may be taken or must be if requested (common knowledge or verifiable fact)
§ Litigants have been informed – so they know what will be noticed and therefore taken as truth
§ In criminal cases the jury can not be instructed that they must accept a judicially noticed fact as true, but are instructed that they may. In civil cases they can.
b. Judicial notice acts as a substitute for formal proof. Some matters need not be proved in the customary manner because they are common knowledge in the jurisdiction or are subject to certain verification through reference to a highly reliable source (calendar, actuarial table, history text). When this is the case a court will take judicial notice of such matters and instruct the jury to consider them established in the case without formal proof.
c. Judicial notice may be taken only of facts of “common everyday knowledge” that are accepted as “indisputable” by the community.
d. Adjudicative Facts
§ Matters of consequence to the resolution of the factual issues in the particular case. These facts would be the subject of proof except that for one reason or another judicial notice mat be taken of them – usually because no reasonable person could dispute them.
§ F.R.E. Rule 201. Judicial Notice of Adjudicative Facts
ú (a) Scope of rule.
· This rule governs only judicial notice of adjudicative facts.
ú (b) Kinds of facts.
· A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally 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.
ú (c) When discretionary.
· A court may take judicial notice, whether requested or not.
iscretionary to others
§ Mandatory Judicial Notice examples
ú Federal and state law (these are legislative facts)
ú Federal and state rules of procedure (these are legislative facts)
ú English language (legislative facts)
ú Indisputable matters – Facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be disputed (adjudicative facts)
g. Other Options
Federal Rule of Civil Procedure 16: Pre-Trial Procedure: Formulating Issues
B. TYPES OF FORMAL PROOF
· Two Basic Types of Evidence
o Direct evidence – proves a proposition directly rather than by inference
o Indirect or Circumstantial evidence – depends on inferences for its relationship to the proposition to be proved.
· Three Basic Forms of Evidence
o The two basic types of evidence may be offered in three different forms
a. Testimonial Evidence