Legal Three

Federal Rules of Evidence – Judicial Notice

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Federal Rules of Evidence Law School Supplements

Federal Rules of Evidence Law School Supplements

Chapter 11: Judicial Notice

 

  1. Introduction
    • General Notes:
      • Judicial Notice:
        • Describes the process by which a court determines certain matters without need for formal proof
        • Covers 4 areas:
          • 1) adjudicative facts (governed by FRE 201)
            • facts that normally go to the jury in a jury case
            • doctrine that relives a party of burden of producing evidence on indisputable issues, furthering trial efficiency
            • nonjury trial judge takes judicial notice by making ruling
            • jury trial judicial notice requires instruction informing jury that notice was taken
          • 2) evaluative facts (unregulated)
            • Matters of common knowledge that judge and jurors bring to deliberations background info
            • No evidence introduced to prove therefore sometimes referred to as “nonevidence” facts
          • 3) legislative facts (unregulated)
            • facts considered by a trial or appellate court in ruling on questions of law
            • legal question may = interpretation of statute or constitutional provision
            • facts which inform the tribunal’s legislative judgment = legislative facts
            • no jury instruction b/c leg. Facts are beyond province of jury
          • 4) law
            • Judicial notice of law = process by which court determines controlling law
    • Class Notes:
      • Judicial Notice takes place when court determines there isn’t need for formal proof
      • Judicial Notice provision (201) deals only with very small portion of judicial notice
        • FRE govern only judicial notice of adjudicative facts and NOTHING ELSE
      • Judicial Notice:
        • 1) Adjudicative Facts (Rule 201)
          • The who, what, when and how of the given case
          • The argument between the parties that the light was red
          • Facts of the case which the trier of fact determines based upon the application of the given law.
          • Judicial notice results in this fact being true without formal presentation of evidence. It is a substitute for formal proof at the time of trial.
          • Notes:
            • Lawyers have gotten themselves in trouble from relying on judicial notice, not gotten it and then lacked the evidence to prove it
          • Rule 2019b) 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 trial court’s territorial jurisdiction
              2. Facts capable of accurate and ready determination
          • Rule 201(d):
            • A court shall take judicial notice if requested by a party and spplied
            • 201(f) Time of taking notice: Judicial notice may be taken at any state of the proceeding
              1. This can be before, during or after trial
            • 201(g):
              1. Distinguishes between civil and criminal
              2. Can’t have judicial notice for the first time on appeal in a criminal case (because that would be doing run around 201(g)) but you can in civil case
        • 2) Legislative Facts
          • legislative facts may have legal significance outside case
          • Legislative facts, on the other hand, are those which have relevance to legal reasoning in the law making process, whether in the formulation of a ruling principle or ruling by a judge or court in the enactment of a legislative body
            • WHEREAS adjudicative facts are simply the facts of a particular case
          •  
        • 3) Basic Facts
          • Referred to as non-evidence facts
        • 4) Law
    • Class Notes:
      • Don’t rely on judicial notice because you might be caught having the evidence that you need at the time of trial
    • Problems
      • 11-A: Dry Pavement:
        • If the fact is subject to reasonable dispute then it can go to jury whether or not it rained can be gathered from weather service with reasonable accuracy so this should be given judicial notice under 201(b)
        • 104 (a) and (b) might be relevant
          • Have to be careful and shouldn’t take judicial notice between whether pavement was wet or dry depending on rain
          • Pavement could be slippery or dry or wet for a number of reasons (timing of rain and areas, etc)
      • 11-B: The Subpeona:
        • Court should take judicial notice that West was served because under 201(b) this fact is one not subject to reasonable dispute b/c it is capable of accurate determination by sources whose accuracy cannot be reasonably questioned
      • 11-C: Interstate Call
        • This problem deals with an adjudicative fact and therefore 201 applies
        • Under 201(b) the drive time can be reasonable disputed (because someone might speed) and therefore the court should not take judicial notice
        • They are asking for judicial notice of knowledge there is no way that the court’s going to give this
          • Can’t use the driving time but can’t use that as fact that he knew of location
      • 11-D: The Football Fan:
        • This is adjudicative fact which is governed by FRE 201 but since it is reasonable disputable (perhaps the game was taped) the court should not take judicial notice that there was no football game being televised at the time of the robbery
          • OR if they do, they should carefully instruct the jury as to the possibility that the defendant was watching a pre-taped game
        • Game time might be subject to reasonable dispute (tv guide could be wrong)
        • Can take judicial notice of the attack but not that it caused package to be late
      • 11-E Delayed Shipment:
        • These facts are adjudicative and the flight information is not subject to dispute and can be proved from reliable (reasonably undisputable) sources
        • Therefore court should take judicial notice of these points
        • HOWEVER court might have to look at whether courier service could drive to destination
      • 11-F Asbestos and Cancer:
        • if it has been conclusively proved under 201(b) that asbestos causes cancer then court can take judicial notice
        • If subject to reasonable dispute then it CANNOT have judicial notice
          • There may still have been reasonable dispute we should not take judicial notice that should be factfinder’s decision
        • If civil action D is barred from attempting to prove otherwise
        • If criminal action D can attempt to prove otherwise and jury has option of taking judicial notice or not
    • Government of the Virgin Islands v. Gereau (United States Court of Appeals for 3rd Circuit, 1975):
      • Facts:
        • D contends that DC erred in denying motion for new trial
        • D was convicted of murder and jury returned verdict but after D filed motion for new trial on ground that verdict was NOT freely assented to by all jurors
        • There was dispute that jury attendant pressured juror (one juror testified to this but matron denied conversation)
        • Judge chose who to believe jury matron based on thought that one woman was grateful for opportunity to earn extra money as jury matron
      • Legal Issue:
        • Was this form of judicial notice proper?
      • Holding/Rationale:
        • Credibility findings RE siding w/ matron doesn’t lack adequate support in record therefore DC ruling affirmed
        • HOWEVER:
          • Trial judge’s reliance on personal, subjective belief about needs and motive of Matron was improper ground for rejecting juror’s concededly credible testimony
        • General Rule:
          • With respect to judicial notice of adjudicative facts the tradition = one of caution in requiring that matter be beyond reasonable controversy
      • Class Notes:
        • Even though the court recognized that there was improper judicial notice, the defendant didn’t win the appeal because the error was harmless
  2. Judicial Notice in Criminal Cases:
    • United States v. Jones (US Court of Appeals 6th Circuit, 1978):
      • Facts:
        • D was convicted of illegally intercepting phone conversations of estranged wife
        • After jury convicted D the DC judge granted D’s motion for judgment of acquittal on ground that government failed to prove that South Central Bell Telephone Company was “a common carrier…providing or operating…facilities for the transmission of interstate or foreign communications,” (a requirement of fed. eavesdropping statute)
        • P sought judicial notice that South Bell was common carrier
      • Legal Issue:
        • Can judicial notice be taken in criminal case on appeal? No because jury must have opportunity to decide whether to accept judicial notice or not in criminal case.
        • DC judgment is therefore affirmed.
      • Holding/Rationale:
        • 201(f) doesn’t distinguish btwn judicial notice in criminal/civil cases HOWEVER:
          • In a civil action, the court shall instruct jury to accept as conclusive any fact judicially noticed.
          • In criminal case, the court shall instruct jury that it may, but is not required to, accept as conclusive any fact judicially noticed.
  3. Evaluative Facts:
    • In conducting a process of judicial reasoning, as of other reasoning, not a step can be taken without assuming something which has not been proved; and the capacity to do this, with competent judgment and efficiency, is imputed to judges and juries as part of their necessary mental outfit
  4. Judicial Notice of Legislative Facts
    • Muller v. Oregon (United States Supreme Court, 1907):
      • Holding/Rationale:
        • Court finds rational basis for Oregon statute limiting the hours women can work in laundries and factories to a max of ten hours per day, and therefore upholds its constitutionality
        • Legislation and opinions referred to in margin are significant of a widespread belief that woman’s physical structure justify special legislation restricting conditions under which she should be permitted to toil
      • Roe v. Wade:
        • U.S. Supreme Court’s use of date related to mortality rates for early abortions
      • Brown v. Board of Education
        • U.S. Supreme Court’s use of social science studies showing that segregation creates a feeling of inferiority
    • Houser v. State (Washington Supreme Court, 1975):
      • Facts:
        • Houser brought action on his behalf and that of all 18-20 year olds, challenging the constitutionality of legislation that established minimum drinking age of 21
        • P contended that no rational basis existed for present statutory scheme under which Washington citizens are considered to be adults at age 18 for all purposes except possession and consumption of alcohol
        • Other side gave 2 studies which court sided with despite P’s expert affidavit
        • P challenges both TC’s judicial notice of State’s studies and its refusal to grant him a trial on merits of contradictory factual claims
      • Legal Issue:
        • Should court have given judicial notice? YES, TC did NOT err.
      • Holding/Rationale:
        • State’s summary judgment motion required court to inquire NOT into facts of particular case at bar but into general relationship btwn attainment of age 21 and effect of alcohol consumption
        • Question was one of law, not fact whether there was rational relationship btwn statutory distinction and state purposes it was alleged to serve
        • A court may ascertain as it sees fit any fact that is merely a ground for laying down a rule law
          • In order to determine whethere was “rational relationship” btwn statutory classification and objective said to justify it court must look beyond case reports and use conjecture and probability
      • Class Notes:
        • Since it was judicial notice of legislative fact (studies being legislative facts) the court doesn’t have to show that the facts are reasonably indisputable
  5. Judicial Notice of Law:
    • General Notes;
      • Process by which court uses to determine applicable law
      • Common law tradition requires federal judges to take judicial notice fo all domestic statutory and case law, state law as well as federal
  6. The Problem of Classification:
    • United States v. Gould (US Court of Appeals for 8th Circuit, 1976):
      • Facts:
        • Ds were convicted of conspiring to import and actually importing cocaine
        • Jury was instructed:
          • “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 US”
        • D argued that P should have been required to prove that substance seized was on schedule of controlled substances
      • Legal Issue:
        • 1) Was it error for the DC to take judicial notice of fact that cocaine hydrochloride is a schedule II controlled substance?
        • 2) If we conclude that it was permissible to judicially notice this fact, we must determine whether DC erred in instructing jury that it must accept this fact as conclusive
      • Holding/Rationale:
        • 1) Not common knowledge but easily discernable
          • Therefore it was proper for DC to judicially notice this fact
      • Class Notes:
        • The judge shouldn’t have said “you must find” but should have said “you may find”
  7. Elements of trial:
    • Judge (judicial function)
    • Trier of Fact (Jury function)
    • At least two parties
    • At least one issue (one point of disagreement)
    • Motion to Dismiss:
      • You didn’t state a claim
      • You didn’t plead fraud with particularity
      • Assuming all allegations in claim are true, we should still win
    • Summary Judgment:
      • There’s no genuine issue of material fact
    • Summary Adjudication:
      • Partial summary judgment
    • Trial:
      • Evidence RE: Disputes Issue Trial
    • Burden of Proof:
      • Assumes 2 separate and distinct burdens
        • 1) Burden of going forward (burden of production)
        • 2) Burden of persuasion
      • Prosecution will stand first because it has burden of going forward and burden of persuasion for all elements of the crime (affirmative defenses HOWEVER are different)
        • After prosecution, defense will ask for motion for directed verdict they’ll say they prosecution hasn’t fulfilled burden of going forward
          • Judge must measure evidence and decide whether or not to deny or grant motion for summary judgment
          • All evidence during presentation of prosecution’s case must fill the “Prima Facie Box” the judge then looks at this box and asks whether a reasonable jury can decide it one way or another
          • If judge says there’s reasonable evidence for jury to decide then defense will have opportunity to call witness
      • Burden of Going Forward:
        • “If the party carries the burden of going forward on any given issue, then the party must produce sufficient evidence to support a jury finding in its favor on this issue”
        • “Failing to satisfy the burden of going forward will result in a motion to dismiss or a motion for directed verdict being granted.”
        • “This burden of going forward is satisfied if sufficient evidence is submitted to create a fact question so that the jury may determine this fact question.”
      • Burden of Proof:
        • Jury has persuasion box (size of box isn’t always the same) where the judge instructs the parties as to the size of the box
          • Jury will then give instruction to jury as to what box they must base judgment on
        • Sizes of Proof:
          • 1) Preponderance of the Evidence (small)
          • 2) Clear and Convincing Evidence (medium)
            • Use for fraud case (fraud can’t be plead generally, must be plead with particularity) court disfavors fraud claims
          • 3) Beyond a Reasonable Doubt (large)
  8. Presumptions:
    • Use in 3 Major Ways:
      • 1) Improper: Given fact A we infer fact B
        • Factual Inference:
          • Basic Fact (may be inferred) Inferred fact
          • It was raining on the day of the accident road condition slippery
          • This is not a presumption
        •  
      • 2) Improper: Anyone under the age of 7 may not be prosecuted for a crime
        • Word presumption being brought into this is not presumption
        • Rule of Law (Conclusive Presumption);
          • Basic Fact (must be found) Presumed Fact
          • Under Age 7 Cannot be prosecutes

 

      • 3) True Presumption
        • True presumption actually shifts one of the burdens from party who normally has burden to the other party
        • FRE =
          • Imposes on the party against whom the presumption is directed the burden of going forward with evidence to rebut or meet the presumption
          • Does not shift the burden of persuasion
        • True presumption cannot be used to tamper with burden of persuasion or burden of going forward in criminal case
        • Rule 301:
          • In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion.
          • “Presumptions governed by this Rule 301 are given the effect of placing upon the opposing party, the burden of establishing the non-existence of the presumed fact…
      • Sources of Presumption:
        • Statutory
        • Case Law
        • State Evidence Codes
        • The FRE
      • Presumption Examples
        • Always basic fact and presumed fact
        • 1) A properly mailed letter is presumed to have been received
          • Basic fact = letter was properly mail
          • Presumed fact = letter was received
          • Other party then has burden of going forward to show that didn’t receive it
        • 2) Person not heard from in seven years is presumed to be deceased
          • Basic fact = haven’t heard from them
          • Presumed fact = dead
        • 3) Party is presumed to have the requisite
      • Other Side’s Response:
        • If the other side put evidence to disprove then you win that presumption
      • Presumption Ways To Attack:
        • Evidence disputing basic fact
        • Evidence disputing presumed fact
        • Evidence can dispute both
    • Evidence Disputing Basic Fact:
      • Presumption applies only if trier of fact finds the basic fact is established
      • Becomes a jury question if sufficient disputed evidence
    • No Evidence Contesting the Presumed Fact:
      • And no evidence contesting basic fact
      • The other side (insurance company) would have the burden of going forward if they fail to put up evidence showing husband was alive, they failed to meet that burden and wife wins on that issue then it doesn’t need to go to the jury
      • “In this situation, the presumed fact is established (assuming basic fact established). The court in this case is required to instruct the jury that the presumed fact must be taken as established. This distinguishes a presumption from a permissible inference.”
    • Evidence Disputing Presumed Fact:
      • Cogent and Compelling Evidence – Reasonable jury could not find otherwise (Presumption completely overcome)
      • Evidence Sufficient to Raise Jury Questions (different views)
        • Matters whether in federal jurisdiction or some other jurisdiction because if in fact insurance puts on evidence sufficient to raise jury question
          • 1) Under FRE the presumption is GONE
            • “Bursting Bubble View”: Since presumption shifts only burden of going forward, the presumption disappears when sufficient evidence to raise a jury question is submitted. “
              1. Federal Rule 301 adopts this view, except where State law provides the rule of decision.
    • Counterproof Sufficient to Raise Jury Question
      • “Morgan View”: A presumption shifts the burden of persuasion to disprove the existence of the presumed fact.
        • Under this view the possibility of establishing the presumed fact stays alive, even in the presence of evidence that a reasonable jury could find that the presumed fact does not exist
    • California View:
      • CA follows same rule as the FRE for presumptions based upon probability
      • CA follows Morgan view for presumptions dealing with public policy
    • Conflicting Presumptions:
      • If two or more presumptions apply, courts will generally utilize the presumption that has the more significant public policy considerations
    • Allowable Criminal Inference:
      • Must place no burden of any kind on the defendant
      • Allows (but does not require) the jury to infer the criminal element
      • Must be logically based—the fact to be inferred must rationally follow from the basic fact
      • Must be clear that something is logical factual inference and NOT presumption
    • Reis Ipsa Loquitor: the thing speaks for itself
      • Is this shifting burden, or is it just a mere inference?
      • Generally it’s just an inference, not an actual shifting of the burden

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