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Villanova University School of Law
Gafni, Abraham J.

The process by which a court determines certain matters w/o need of formal proof. 
Ø       Judicial notice is founded on the assumption that certain matters are not within the area of controversies appropriately resolved by the production of evidence before the trier of fact at a trial.
Ø       A high degree of indisputability is an essential prerequisite for adjudicative facts to be judicially noticed.
Ø       Judicial notice is a substitute for formal proof or evidence. When there are facts that are essentially incontestable there is no need to present formal evidence to prove them as it wastes time and resources.
Ø       If judicial notice is granted, the normal rules of evidence are circumvented as no formal evidence is presented or needed
Adjudicative and Legislative Facts:
Rule 201 applies only to judicial notice of adjudicative facts. The term “adjudicative fact” is used in contradistinction to the term “legislative fact.” Adjudicative facts are what we normally think of when we talk about the “facts of a case.”
Historical, geographic, physical, political, statistical, and scientific facts have all been noticed as verifiably certain. In deciding whether a fact is capable of ready and accurate determination, a court may rely only upon sources “whose accuracy cannot reasonably be questioned.” The source itself need not be admissible in evidence.
Jury Instructions:
In civil cases, the court must instruct the jury “to accept as conclusive any fact judicially noticed.” In contrast, Rule 201(g) directs the court to instruct the jury in a criminal case that it “may, but is not required to, accept as conclusive any fact judicially noticed.”
Improper Bases for Judicial Notice:
Judge’s personal knowledge or opinion.
Judicial Notice of Law
The process by which the court determines the applicable law, thereby relieving the
parties of formally proving that law at trial.
Common law tradition requires federal judges to take judicial notice of all domestic statutory and case law, state as well as federal
1. Civil Cases
Burden of Production = whether enough evidence to survive JMOL
To meet the burden of production—that is, to survive adverse summary judgment—a plaintiff must show enough evidence so that a reasonable finder of fact could rule in his favor. Note that an assessment of whether a burden of production has been met involves no assessment of credibility. [St Marys Honor Center v Hicks].
Most courts agree that “cogent and compelling” evidence is enough to shift the burden of production to the defendant, although the burden will not be shifted if the jury could disbelieve the credibility of the plaintiff’s witnesses. “Cogent and compelling” evidence shifts the burden of production because the plaintiff has shown evidence so that a reasonable jury could only find in his favor.
The burden of persuasion refers to the convincing force of the evidence. Technically, it is the “risk of nonpersuasion.” Three common standards of proof are used to define the legally required persuasive force of the evidence: (1) “proof beyond a reasonable doubt” (the highest standard); (2) “clear and convincing evidence” (an intermediate standard); and (3) “preponderance of evidence” (more probable than not).
2. Criminal cases
Additionally, in criminal cases the due process clauses of Amendment V and Amendment XIV require every element of a crime to be proved beyond a reasonable doubt. [In re Winship]. As a result, presumptions do not operate in criminal trials as they would in civil trials, so that for example there would be no directed verdicts against a defendant. However, the burden of persuasion for an affirmative defense may constitutionally be placed on the defendant. See [Patterson v New York] (rejecting claim that insanity defense, or the defense of emotional disturbance rendering murder into manslaughter, must be disproved beyond a reasonable doubt by the state). Whether an issue is an “element” of a crime or an “affirmative defense” appears to depend on the phrasing of the statute. Compare [Mullaney v Wilbur] (invalidating on due process grounds a murder conviction, where murder was defined as killing in the absence of provocation, and where the defendant was required to prove that he was in fact provoked) with [Patterson v New York] (placing burden to prove EED on defendant, where defense of EED appeared separately from definition of murder); see also [Patterson v New York] (Powell dissenting) (arguing that the state should have to prove the absence of EED because, like the “heat of passion” in earlier doctrine, it made a “critical difference” how the defendant would be punished).
See also [Sandstrom v Montana] (invalidating jury instruction that “the law presumes that a person intends the ordinary consequences of his voluntary acts”).
1. Presumptions Defined
A Judge-mandated conclusion that the jury must reach if it finds certain premise facts (if A then B).
Properly speaking, presumptions only exist in Civil Cases.
“REAL” Presumptions:
The term “presumption” describes a device that REQUIRES the trier to draw a particular conclusion when the basic facts are established, in the absence of evidence tending to disprove the fact pr

instruction therefore represented constitutional error. Here, whether the crime was committed purposefully or knowingly is an essential element, an essential fact necessary to constitute the crime of deliberate homicide – this must be proved by the prosecution and the prosecution alone, beyond a reasonable doubt – the jury instructions relieved P of this burden by supposing the element of intent.
Patterson v. NY: Shifting burden of proof to D in proving a mitigating affirmative defense is OK. While prosecution MUST prove all elements of a crime beyond a reasonable doubt, here that was not the controversy – murder – showing an intent to kill and the actual killing are the elements and must be proven beyond reasonable doubt BUT state is permitted to refuse the affirmative defense of insanity, if D cannot provide evidence that he was in fact, under emotional distress. To do so otherwise, would result in no convictions ever.
2. Inferences
Most common evidentiary device is the inference, which suggests but does not require fact finder to come to certain conclusions.
In certain cases, though, the judge may explicitly draw the jury’s attention to a particular inference it may draw, effectively inviting the jury to draw such an inference. This is known as “permissive inferences.” One such example is res ipsa loquitur, where the judge effectively invites the jury to infer that the defendant was negligent. A judge may also instruct a jury on conditional inferences, telling the jury that it must accept a certain presumption as true if it finds certain underlying facts leading to that presumption.
In a Criminal Example:
The inference of flight – when someone flees at the site of police – the inference is that he/she is guilty of something; this inference is strongest when other factors are present. However, other factors may create doubt about flight (if D had previously made plans to leave).
FRE 1002: To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.