Evidence
Cole
Fall 2016
Judicial Notice pg. 763-774
Describes the process by which the judge determines certain matters without need of formal proof.
Evidence need not be admissible for the court to take judicial notice (ex: a court could take judicial notice based on a Google search)
In civil cases, when the judge takes judicial notice of an adjudicative fact, the judicial notice is treated as conclusive on the issue. The court instructs the jury that they must treat the fact as being so.
In criminal cases, when the judge takes judicial notice of an adjudicative fact, the noticed fact is not conclusive. The court must instruct the jury that it may or may not accept the noticed fact as conclusive. Rationale: taking away the jury’s right to make their own determination of the fact may violate the D’s constitutional right to a jury trial.
Four areas: adjudicative facts (FRE 201), evaluative facts, legislative facts, and law
Adjudicative facts are the facts that normally go to the jury, those that would have to be proved by evidence if notice were not taken. Judicial notices furthers trial efficiency (relieves a party of the burden of producing evidence). Facts that touch on questions concerning parties in a particular proceeding.
Must be solved via evidentiary submission, UNLESS the fact is not subject to a reasonable dispute, in which case the trial court shall TAKE NOTICE of the fact and recognize it as true
Evaluative facts include matters of common knowledge that judge and jurors bring to their deliberations
Known as non-evidence facts. When jurors consider such matters we refer to the process as jury notice
Facts that help the jury understand testimony such as the usual meaning of words, idioms, and slang expressions
Because an evaluative fact is normally a matter of general knowledge, there is no evidence usually offered to prove evaluative facts and there is no need to instruct the jury to take notice of such a fact. Occasionally, a general instruction on evaluative facts is sometimes given, telling jurors that they may use their life experiences, their knowledge on human inclinations, and common sense in evaluating formal evidence.
Legislative facts are those considered by a court in ruling on questions of law. Includes interpreting statutes or constitutional provisions
Include legislative history of a statute or rule, scientific propositions, historical facts, and any other propositions about the world that a court considers in making legal rulings
Legislative v. Adjudicative facts
Davis in the ACN: adjudicative facts are simply the facts of the particular case. Legislative facts are those which have relevance to legal reasoning and the lawmaking process.
Cole: adjudicative facts are those facts that are not legislative facts. Although Davis’ distinction makes it sound like the two are separate, it is not necessarily so. A legislative fact can also be an adjudicative fact.
Judicial notice of law refers to the process by which the court determines controlling law. Parties are relieved of the burden of proving law, although they generally help the court in this task. If judicial notice of the law is not taken, the proof is presented to the court, and the determination of controlling law is made by the judge, not the jury. Jury is then instructed at the end of trial to apply the law in deciding the case.
FRE 201:
(a): Only for adjudicative facts.
(b): Court may judicially notice a fact that is not subject to reasonable dispute because it:
(1) is generally known within the trial court’s territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned
(c): Court can take judicial notice at any stage of the proceeding.
(d): On a timely question, a party is entitled to be heard on the suitability of taking judicial notice and the nature of the fact noticed. If the court takes judicial notice before notifying a party, the party is still entitled to be heard on request.
(e): In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.
Government of the Virgin Islands v. Gereau
Facts: During trial deliberations a juror spoke with a jury attendant, who indicated that she wished to go home soon.
Defense brought a motion for a new trial based on evidence of jury misconduct. The judge found that the conversation did not take place based on his personal knowledge that the jury attendant was grateful for the extra money from the work.
Court of Appeals held that the trial judge’s reliance on his personal belief about the motive of the jury attendant was an improper ground for rejecting the juror’s testimony.
Facts have to either be common knowledge or capable of immediate and accurate determination, judge can’t use what he knows only as an individual observer outside of court.
United States v. Jones (criminal case)
D was convicted of illegally intercepting phone conversations
D appealed on the ground that the prosecution had failed to establish that the telephone company was a common carrier (as required by the criminal statute). The government did not ask for judicial notice of the fact until appeal.
Court held that although Rule 201 allows the judge to take judicial notice at any time in a civil case, the legislative history indicates that Congress did not intend this to apply to a criminal case because it violates the Sixth Amendment bar against partially directed verdicts, because a jury would not be able to hear the fact.
Muller v. Oregon (legislative fact)
Court found a rational basis for an Oregon statute limiting the hours women can work in laundries and factories to a maximum of 10 hours per day and therefore upheld its constitutionality.
A court may take judicial notice of facts that may not have a settled truth, but have a widespread and long continued belief concerning it.
Houser v. State (legislative fact)
Challenged constitutionality of legislation establishing a minimum age of 21 for drinking alcohol. Trial court judicially noticed state’s technical studies that contained data supporting the age discrimination. Appellant said studies were not well established.
Court said the question was one of law, not of fact, and whether there was a rational relationship between the statute and the state purposes. The court was determining the basis for the application of a rule of law.
Reputable scientific studies are increasingly utilized by courts in constitutional decision making. The court may look beyond case reports and statute books to scientific studies and other information to make an assessment on whether to take judicial notice of a legislative fact.
United States v. Gould (classification)
Court instructed the jury that “if you find the substance was cocaine hydrochloride, you are instructed that cocaine hydrochloride is a Schedule II controlled substance under the laws of the U.S.”
D appealed, arguing that the judge did not instruct the jury that they could disregard the judicial finding that cocaine hydrochloride is a Schedule II controlled substance.
Court held that the limitation in FRE 201, requiring a judge to instruct a jury that it may disregard judicial findings of adjudicative facts is not applicable to judicial notice of legislative facts. Whether a substance is on the controlled substance list is a legislative fact, and not subject to negation by the jury.
Background on Evidence pg. 1-51
Why Rules of Evidence?
Mistrust of juries
Serve substantive policies relating to the matter in suit.
Further substantive polices unrelated to the matter in suit (rules that seek to affect behavior outside the courtroom).
Ensure accurate fact finding.
Control the scope and duration of trials
Direct Examination
3 goals with each witness: background information, questions to show that the witness has personal knowledge of the matters to which he will speak, substantive questions about the witness’s knowledge of pertinent facts
Typically direct examination must proceed by nonleading
meet the presumption, but it does not shift the burden of proof to such party. Basically it just shifts the burden of production.
Types of presumptions
Conclusive or irrebuttable presumption: legal rule that is a principle of substantive law, expressed in the language of presumptions.
Mandatory presumption or presumption of law: true presumption. Controls decision if unopposed, so in jury trials an instruction is given and in bench trials the judge must find the presumed fact.
Permissive presumption, inference, presumption of fact: conclusions that are permitted, but not required (ex: res ipsa loquitur)
Prima facie: Either the evidence requires a particular conclusion, or the evidence permits that conclusion
The presumption controls if the basic facts are established and there is no counterproof indicating that the presumed fact is not so.
The presumption disappears if the basic facts are established, but there is compelling proof that the presumed fact is not so.
Sometimes there is enough proof of the basic facts to support a finding that they exist, but not enough to require such a finding. In these cases the judge must give a contingent/conditional instruction that if the jury finds the basic facts, then it must find the presumed fact.
Does the presumption disappear if the offered counterproof is not compelling or insufficient?
Bursting bubble/Thayer approach: the presumption shifts the burden of production to the party against whom it operates. Once the burden is met, the presumption disappears (FRE 301).
Reformist/Morgan approach: the presumption should shift both the burden of production and the burden of persuasion
Example of a presumption: a properly addressed and mailed letter was received by the addressee. The basic fact here is the properly addressed and mailed letter. The presumption is that it was received by the addressee. The proponent/beneficiary of the presumption (P) introduces evidence of proper addressing and mailing of the letter.
If the opponent of the presumption (O) does not introduce any evidence of whether the letter was mailed properly or received, the jury will be instructed that if they find proper mailing, they must find receipt.
If O introduces some evidence that the letter was not properly mailed, but no evidence regarding receipt, the jury will be instructed that if they find proper mailing, they must find receipt.
If O introduces some evidence that the letter was never received, with or without evidence regarding proper mailing, then this is where Thayer v. Morgan would come into play
Thayer: no jury instruction requiring the jury to find receipt if they find the mailing. If P convinces the jury by a preponderance of evidence that the letter was received, they will decide for P. Otherwise, they must decide for O.
Morgan: Jury will be instructed that if they find proper mailing, they must find receipt and decide for P, unless O convinces them by a preponderance of the evidence that the letter was not received.
CA approach: uses both the Morgan and Thayer approaches
The Morgan approach applies if a presumption is designed to further a public policy
The Thayer approach applies if a presumption is designed to facilitate the determination of the particular action
