Evidence

Question 1

Structure

Answer 1

FRench ReCIPe for Hot Jam

• Form
  *Relevance
  *Reliability
  *Character
  *Impeachment
  *Privilege
  *Hearsay
  &Judicial Notice

Question 1

CA Prop 8

Answer 1

Tip: Include intro if CA/CA essay only not for FRE only questions

Under Prop 8, or the “truth in evidence” amendment to the CA constitution, all relevant evidence is admissible in CA crim cases, even if objectionable under the California Evidence Code. However, Prop 8 is inapplicable to the confrontation clauses, hearsay, privileges, and best evidence rule

Question 2

Form Objections

Answer 2

Leading, Non-responsive answer, calls for narrative answer, calls for speculation, argumentative, compound question, assumes facts not in evidence, asked and answered, misleading, harassing/embarrassing, cross-examination, ambiguous, calls for legal conclusion, lack of foundation

Question 3

Leading

Answer 3

A leading question is improper on direct examination when it suggests to the witness the fact the examiner expects and wants to have confirmed. LEADING Qs are not objectionable on cross-examination

Question 4

Non-responsive answer

Answer 4

one that provides more information in the answer than what is asked for or does not answer the specific question asked. Motion to strike must be made by examining counsel.

*CA Distinction: motion to strike may be brought by either counsel

Question 5

Calls for narrative answer

Answer 5

questions that allow a witness to answer by recounting facts rather than asking a series of questions requiring specific answers are not permitted

Question 6

Calls for speculation

Answer 6

a question that calls for speculation invites or causes the witness to answer on the basis of conjecture

Question 7

Argumentative

Answer 7

Asked for the purpose of persuading the jury or judge rather than to elicit information. A question may be argumentative in content or tone

Question 8

Compound question

Answer 8

questions that require a single answer to more than one question are not permitted

Question 9

Assumes facts not in evidence

Answer 9

questions that include facts that have not yet been admitted into evidence are improper

Question 10

Asked and answered

Answer 10

objection is appropriate when the witness has already answered the same or similar question by the same attorney

Question 11

Misleading

Answer 11

A misleading question misstates evidence or misquotes witnesses

Question 12

Harassing/Embarassing

Answer 12

judge has discretion to prohibit cross-examination that is unduly harassing and/or embarrassing

Question 13

Ambiguous

Answer 13

An ambiguous question is one that could have more than one meaning

Question 14

Calls for legal conclusion

Answer 14

questions that ask the witness to state a legal opinion about an issue are not permitted

Question 15

Lack of foundation

Answer 15

a question lacks foundation when, at time it was asked, the foundation had not been laid that the witness had the requisite knowledge to answer the quesiton

Question 16

Logical Relevance

Answer 16

Evidence is logically relevant if it tends to prove or disprove a material fact at issue. It must relate to the time, event, or person involved in the present litigation.

Question 17

Legal Relevance

Answer 17

The court may exclude relevant evidence if its probative value is substantially outweighed by the danger of: (1) unfair prejudice, (2) confusion of the issues, (3) misleading the jury, (4) undue delay, (5) wasting time, or (6) needlessly presenting cumulative evidence

Question 18

Liability insurance

Answer 18

not admissible to show D’s negligence or ability to pay

*Exception: admissible to show ownership, control, to impeach, or as part of an admission

Question 19

Subsequent remedial measures

Answer 19

not admissible to show Ds negligence or to show defective design in strict products liability case

*Exception: admissible to show feasibility of precautionary measure, ownership, control or to impeach

*CA Distinction: inadmissible in negligence cases; admissible for stricts product liability cases

Question 20

Payment or offers to pay medical expenses

Answer 20

not admissible to prove guilt or liability.

*CA distinction: makes inadmissible admissions of fact made in the course of making such payments or offers

Question 21

Settlement offers

Answer 21

not admissible in civil cases to show Ds liability

*Exceptions: admissible when there is no claim filed or threatened or the amount is not in dispute

*CA Distinction: Discussions during mediation proceedings are also inadmissible

Question 22

Plea Withdrawn, offers to plea

Answer 22

are not admissible in criminal cases to prove guilt

Question 23

Expressions in sympathy

Answer 23

*NO RULE IN FRE

*CA Distinction: Inadmissible in civil actions where expressions of sympathy relate to suffering or death of an accident victim.

*exception: Statements of fault/fact made in cconnection with such expressions are not excluded

Question 24

Similarity of occurences, admissible to prove

Answer 24

Causation, intent, rebut defense of impossibility, comparable sales price to establish value

Habit evidence is admissible if: (1) describes a person’s regular response, (2) to specific set of circumstances, (3) to prove person acted in conformity with the habit on a particular ocassion.

Routine Business practice: evidence is admissible to show enttiy conduct in conformity with practice on occassion in question

Industrial custom: evidence is admissible to prove standard of care

Question 25

Ps prior accidents or Ps claims

Answer 25

is usually irrelevant

*Exception: P has a pattern of filing suits after faked accidents or P has a preexisting condition

Question 26

Reliability

Answer 26

witness testimony is reliable if witness can testify that he is: (1) competent and (2) has personal knowledge.

Question 27

Competence

Answer 27

Every witness is presumed competent

*CA Distinction: Witness must also understand legal duty to tell the truth

Question 28

Personal Knowledge

Answer 28

A witness must have observed the matter and presently recollect the observation

**Present Recollection Refreshed: A witness may use any writing or thing for the purpose of refreshing her present recollection. The writing or thing is not authenticated or offered into evidence.

**Past collection recorded: A witness may read a writing into evidence if: (i) the witness once had personal knowledge of the facts when written, (ii) now cannot remember, (iii) the document was made by the witness, under her direction, or adopted by her, (iv) the document was written at a time when the facts were fresh in the witness’s memory, and (v) the document was accurate when made

Question 29

Lay opinion is admissible if:

Answer 29

(i) it is rationally based on (ii) the witness’s perceptions, and (iii) it is helpful to the trier of fact

Ex: permitted as to speed of cars, sanity, intoxication, emotions, value of witness’s property

Question 30

Expert opinion is admissible if:

Answer 30

(i) it is helpful to a jury, (ii) witness must be qualified by the judge *Long term experience is OK does not need degree, (iii) witness must believe in opinion to a reasonable degree of certainty, (iv) opinion must be supported by a proper factual basis, and (v) opinion must be based on reliable principles that were reliably applied

*For (v): FRE Daubert: (1) peer reviewed, (2) tested and is subject to re-testing, (3) low error rate, (4) a reasonable level of acceptance

*CA Distinction: Kelly/Frye: Opinion must be based on principles generally accepted by experts in the field. FRE factors do not apply

Question 31

Reliability of Docs - Authentication

Answer 31

Physical evidence must be authenticated by: (i) witness testimony by one with personal knowledge the evidence is what it is claimed to be, or (ii) the evidence has been held in a substantially unbroken chain of custody

*Big breaks in chain of custody not OK, small rbeaks ok

Question 32

Ancient Docs authentication

Answer 32

authenticity is established if: (i) the doc is 20 years old *CA distinction: 30 years old, (ii) does not facially show any irregularities, and (iii) was found in a place where it was expected to be found

Question 33

Self-authenticated

Answer 33

the following docs do not need to be authenticated by pleading, stipulation, admission, or testimony:

• certified copies of public records
• official publications
• newspapers and periodicals
• trade inscriptions (ie TMs)
• Acknowledged documents
• commercial paper
• certified business records
• family portraits, bibles, birth certificate (photo copy OK)

Question 34

Best Evidence Rule

Answer 34

**CA Distinction: Secondary Evidence Rule

To prove contents of a writing, the original must be produced if:

(i) testimony is reliant on the writing, or
(ii) it is a legally operated document, unless it is unavailable because the original was lost, or destroyed without bad faith of proponent

• A writing includes docs, videos, x-rays, audio recordings, CDS or tangible collection of data

*Photocopies or duplciates, which are an exact copy of the doc are admissible as the photocopies original unless there is some reason to question accuracy

• Exception: a summary for voluminous records is OK; public records are OK if certified

Question 35

Character evidence (civil)

Answer 35

In civil cases, character evidence is inadmissible, unless it goes to an ultimate issue, then reputation, opinion, and specific acts are admissible as substantive evidence.

Examples:
*defamation, negligent entrustment, fraud, child custody

Question 36

Character evidence (crimianl)

Answer 36

In criminal cases, the prosecution may not initiate evidence of D’s bad character merely to show he is more likely to commit the crime charged, unless D puts his character at issue.

*Exception: Prosecution may initiate evidence of D’s sexual misconduct in child molest/sexual assault cases, via reputation, opinion, or specific acts

**CA distinction: Prosecution may initiate evidence of D’s prior acts of domestic violence

Question 37

Character Evidence - Mercy Rule

Answer 37

allows D to introduce evidence of his good character by reputation or opinion evidence.

*Prosecution can rebut with reputation, opinion, or specific act evidence of D’s conduct when cross-examining witnesses, but no extrinsic evidence is allowed

*Prosecution may introduce bad reputation or opinion evidence for D by calling their own witness, but no specific acts are allowed

*CA Distinction: Prosecution may only rebut by using reputation or opinion evidence

Question 38

Mercy Rule for Crim Cases Cont.

Answer 38

D may introduce evidence of V’s bad character by reputation or opinion testimony

*Prosecution may use reputation, opinion, or specific acts to show Vs good character

*CA Distinction: D may introduce evidence of Vs bad character by reputation, opinion or specific act evidence

Question 39

Mercy Rule in Rape Cases

Answer 39

In rape cases, V’s past sexual behavior is admissible, unless, used to prove:
(i) other source of semen
(ii) past consensual sexual activity beween D and V

Question 40

Mercy Rule to show same trait

Answer 40

Prosecution may offer evidence of a trait of D if D already introduced evidence of that same trait in V

*CA Distinction: Only D’s trait for violence may be shown once D shows V is violent

*Under FRE only, in homicide cases only, may the prosecution show V is peaceful after D has shown V to be violent

Question 41

Character Cont.

Answer 41

Character evidence is inadmissible to prove propensity for conduct in conformity therewith on a particular occasion. It can be offered by: (1) evidence of specific acts, (2) opinion testimony, (3) or testimony as to the person’s general reputation

EXCEPTION: MIAMI KOPPS
*Motive
*Intent
*Absence of Mistake
*Identity
*Knowledge
*Opportunity
*Preparation
*Common Plan or
*Scheme

Question 42

Impeachment

Answer 42

the casting of an adverse reflection on the veracity (ie truthfulness) of a witness. A W may be impeached on cross-examination OR by extrinsic evidence (put another W on the stand who will introduce facts discrediting the prior testimony).

• foundation must be laid during cross-x before extrinsic evidence introduced
• A party cannot bolster his own W with prior consistent statements or evidence of good character until that W has been impeached
• No impeachment on collateral matters, waste of time

Question 43

Impeachment: Bad character opinion/reputation evidence

Answer 43

Can ask a third party about his OPINION as to W’s honesty or about Ws reputation in the community

Question 44

Impeachment: Specific bad acts

Answer 44

Probative of truthfulness on cross-examination
*Questions must be asked in good faith
*CANNOT ask about arrests and cannot use extrinsic evidence
*CA Distinction: Specific bad acts involving moral turpitude are admissible only in criminal cases, BUT court can balance (extrinsic evidence permitted)

Question 45

Impeachment: Prior convictions

Answer 45

Proof of prior convictions can be used to impeach (must be conviction, not just arrest/indictment)

Crimes must be either:
* Crime of dishonesty/false statement (any crime) OR
*Not subject to balancing: no judicial discretion to exclude the crime
*CA Distinction: Subject to balancing: judicial discretion (exclude if probative value is substantially outweighed by prejudicial effect)
*Any Felony: even not involving dishonesty, UNLESS it has been 10 years since the date of conviction or date of release from jail *subject to balancing
*CA Distinction: ALL felonies and/or misdemeanors are admissible for crimes involving moral turpitude
*NOTE: cannot use prior convictions if D was acquitted

Question 46

Impeachment - Defects in Memory or Knowledge

Answer 46

W can be impeached (on cross or via extrinsic evidence) by showing that he has an impaired ability to perceive things (ie bad hearing, wears a hearing aid/glasses, etc.)

Question 47

Impeachment - Bias/Motive to Lie

Answer 47

Used to show that W has a reason to lie (ie W is related to D, W made plea deal, or D gave money to W)

*Can use extrinsic evidence to show bias IF:
- W is asked about the facts suggesting bias first (lay foundation)
- If that foundation is laid, even evidence that would otherwise be inadmissible can be used for impeachment (ie liability insurance, prior arrests, etc.)

Question 48

Impeachment - Prior Inconsistent Statements

Answer 48

A party may show (on cross or via extrinsic evidence) that W has, on another occasion, made statement that are inconsistent with present testimony

• Extrinsic Evidence admissible ONLY IF:
  W is given chance to explain; AND

The foundation is laid
*Exception: Inconsistent statements by hearsay declarants can be used to impeach DESPITE a lack of foundation

Question 49

Rehabilitation

Answer 49

An impeached W can explain or clarify facts brought out on cross via a re-direct

*Evidence of bias can be rebutted with evidence of prior consistent statements made before the bias arose

• evidence of bad character can be rebutted with evidence of good character

Question 49

Attorney-client privilege

Answer 49

(1) a communication between an attorney and client or client-representatives

*CA Distinction: Privilege applies to communications from employees/agent if she is the natural person to speak to the lawyer on behalf of the corporation in the matter, or employer/agent did something for which corp may be liable

(2) intended by client to be confidential

(3) made to facilitate legal services

(4) is privileged in all criminal and civil cases

(5) applies after representation, if lawyer is fired, or after client dies, and

*CA Distinction: Privilege continues after death but not once estate of dead client is distributed and executor is discharged

(6) client is the holder of the privilege, but atty must assert on their behalf

**Exceptions:

(i) Waiver by client
(ii) legal services sought to further what client knew or should have known to be a crime or fraud

*CA Distinction: privilege does not apply if disclosure would prevent crime that would result in death or GBH

(iii) communication relates to alleged breach of duty between lawyer and client

(iv) Two or more parties consult an attorney on a matter of common interest and the communication is offered by one of these parties against another

Question 50

Psychotherapist/Social worker-patient

Answer 50

(1) a communication between psychotherapist and patient, or licensed social worker and client

(2) intended to be kept confidential

(3) made to facilitate the rendition of professional services

(4) is privileged in all civil and criminal proceedings

*CA Distinction: privilege is allowed in crim cases
*CA Distinction: other privileges only in CA: counselor-victim of sexual assault/DV, penitential communications between penitent and clergy, immunity for news report who refuses to disclose services

Exceptions
i) where patient puts physical or mental condition at issue
ii) where professional services sought to aid in crime or fraud
iii) malpractice action
iv) privilege does not apply if psychotherapist has reasonable cause to believe that the patient is a danger to himself or others and disclosure is necessary to end teh danger

Question 50

Doctor patient

Answer 50

No FRE Privilege; CA Distinction privilege exists
(1) patient has a privilege
(2) to prevent disclosure of information
(3) confidentially conveyed to a physician
(4) for the purposes of obtaining diagnosis or treatment, and
(5) the information was pertinent to diagnosis or treatment
(6) in a civil action only

*Exceptions
(i) where the patient puts physical condition at issue

(ii) where physician’s services sought to aid in crime or fraud or escape capture after a crime or tort

(iii) malpractice action between doctor and patient

CA Distinction: privilege does not apply in criminal cases OR to information that the doctor is required to report to public office (ie gunshot wounds and diseases)

Question 51

Marital Relationship - Spousal testimonial privilege

Answer 51

(1) in a criminal case

*CA distinction: applies to civil and criminal cases; spouse has privilege not to be called on stand

(2) D’s spouse

(3) has the right to refuse to testify against D

(4) during marriage

(5) regarding any matter before and during marriage, including observarions and impressions

Question 52

Marital relationship - confidential marital communications

Answer 52

(1) in a civil or criminal case
(2) confidential communications, both verbal and written
(3) made in reliance upon the intimacy of marital relationship
(4) between husband and wife
**both spouses hold the privilege so can prevent the other spouse from disclosing
(5) during the marriage are priviliged
**privileges survive divorce

Question 53

HS Exemtpions

Answer 53

(1) Statement has independent legal significance: if statement is not offered to prove truth of matter asserted and is legally operative, not HS.

(2) statement offered to show effect on listener: statement offered to show person was on notice of something and may have reacted a certain way is not HS.

(3) Statement is circumstantial evidence of declarant’s state of mind: to show the declarant’s state of mind are not HS if it shows: (1) knowledge, (2) intent, (3) attitude, or (4) belief of declarant

(4) Prior sworn inconsistent statement: if prior, sworn statement, is inconsistent with declarant’s current in-court testimony, it is non-hearsay and admissible for impeachment and substantive evidence

(5) Prior consistent statement: A prior consistent statement with witness’ current testimony is non-hearsay and admissible for impeachment and substantive evidence, if it is offered to rebut a charge of bias or improper motive, so long as prior statement was made before alleged bias came up

(6) Prior ID: non-hearsay if: (1) declarant is currently testifying, (2) subject to cross-examination, and (3) statement was one of ID of a person made after perceiving that person

(7) Admission by party opponent **cluster with statement against interest: an admission by party opponent is an out of court statement or conduct made by a party offered as evidence against him.

*Distinguish: unlike a statement against interest, an admission need not be against declarant’s interest at time time it is made, thus, even a statement that seems neutral or self-serving at the time it is made made by introduced against party who made it; statement against interest may be made by anyone while admission by party opponent must be made by a party

**CA Distinction: An admission by party opponent is a HS exception not exemption

Question 53

Hearsay

Answer 53

HS is an out of court statement offered for the truth of the matter asserted. Such evidence is inadmissible, subject to certain exemptions or exceptions. If evidence is nto offered for its truth it is not hearsay and is admissible.

*Statements: Statement: may take the form of assertive conduct but must be made by a human
*out of court

Question 54

Adoptive admission

Answer 54

An adoptive admission is made when someone remains silent in the face of an accusation if: (i) the party heard and understood the statement, (ii) the party was physically and mentally capable of denying the statement, and (iii) a reasonable person would have denied the accusation

Question 55

Vicarious admission

Answer 55

Vicarious admissions are admissible non-hearsay statements if they are made by: (i) persons who are expressly or impliedly authorized to make the statement, (ii) agents/employees acting within the scope of employment, during the employment relationship, (iii) co-conspirators during, and in furtherance of, the conspiracy, or (iv) by joint partners in a venture

*CA distinction: Employer is liable for employee’s words only if he is also liable for employee’s negligent conduct.

Question 56

HS Exception - Declarant must be unavailable

Answer 56

A declarant is unavailable if a privilege applies, he suffers memory loss, he refuses to testify, he is incapacitated, he cannot be found, or he is deceased.

*CA Distinction: Does not include memory loss or refusal to testify

Question 57

Unavailable declarant - Former testimony

Answer 57

Testimony is admissible if made by an unavailable witness:
(i) testimony was given at an earlier hearing or deposition
(ii) party against whom the testimony is now offered was present earlier
*Civil case: party’s predecessor in interest may be present
(iii) the party against whom the testimony is now offered had the opportunity to develop the testimony (ie cross examine), and
(iv) party against whom the testimony is now offered had a similar motive to develop the testimony

*Grand jury testimony is never allowed because no opportunity to cross-examine

*CA Distinction: In a civil case, a party may introduce former testimony against a party who was not a party in earlier proceeding, so long as:

(1) a party had an opportunity to cross-examine
(2) the former testimony is offered against person who offered it on their behalf, or
(3) the former testimony is offered against a successor in interest

Question 58

Unavailable declarant - Dying declaration

Answer 58

a statement made by an unavailable witness that concerns the cause or circumstances of his own death or an imminent belief that his death is about to occur is admissible. Declarant need not actually die.

*CA distinction: declarant must actually die, admissible in civil/criminal cases

Question 59

Unavailable declarant - Statement against interest (cluster with party admission)

Answer 59

a statement made by an unavailable witness, which at the time it was made, was so contrary to the declarant’s pecuniary, proprietary, or penal interest, that a reasonable person would not have made the statement unless it was true.

*CA Distinction: Includes statements against social interest if it subjects declarant to hatred, ridicule, or social disgrace in teh community

Question 60

Unavailable declarant - Statements of personal or family history

Answer 60

A statement made by an unavailable witness is admissible if declarant is a member of the family in question or intimately associated with it and is based on his personal knowledge regarding births, marriages, divorces, deaths or relationships

Question 61

Excited utterance

Answer 61

*cluster with PSI

A statement relating to a startling event or condition, made while declarant is still under the stress of excitement, that is caused by the event or condition is admissible

CA Distinction: Spontaneous statement

Question 62

Present sense impression

Answer 62

A statement describing or explaining an event or condition, made while declarant perceived the event or condition or immediately thereafter is admissible

*CA Distinction: Must be a contemporaneous statement (ie statement made while declarant was engaged in that conduct)
*CA Distinction OJ Exception:A statement describing infliction or threat of physical abuse, made at or near the time of injury/threat, that explains the infliction or threat, in a writing/recording made to a police officer or medical professional, is admissible

Question 63

Statement of bodily condition

Answer 63

a statement of a declarant’s present bodily condition or symptoms, made to a layperson, is admissible

Question 64

Statement of bodily condition for medical treatment or diagnosis

Answer 64

A statement of a declarant’s past or present bodily condition, when made to a physician, who is treating him, when related to the cause of the injury and not fault, is admissible

• A statement of a declarant’s past or present bodily condition, made to a physician, who was consulted to testify, about the patient’s condition at trial, is admissible

*CA Distinction: Past bodily conditions are only admissible if declarant is a minor. This section applies only to a statement made by a victim who is a minor at the time of the proceedings, provided the statement was made when the victim was under 12 describing any act, attempted act, or child abuse or neglect

Question 65

Present state of mind

Answer 65

a statement of declarant’s presently existing state of mind, emotion or sensation is admissible when the declarant’s state of mind is directly at issue

Question 66

Past recollection recorded

Answer 66

TIP: raise under reliability > personal knowledge also

TIP: cluster with present recollection refreshed if double hearsay issue

*A written record of an event, made shortly after event occurred, will be admissible if:
(i) the witness once had personal knowledge of facts when written
(ii) now cannot remember
(iii) doc was made by the witness, under her direction, or adopted by her
(iv) doc was written at a time when facts were fresh in W’s memory
and (v) doc was accurate when made

Question 67

Business record

Answer 67

admissible if:
(i) record was made in routine course of business *record cannot be in anticipation of litigation
(ii) record was made by, or from information supplied, by a person with personal knowledge who is working in the business, and
(iii) the entry was made at or near time of matter

• Record may be admitted to show that particular entry is absent, if such an entry would normally have been made had a particular event occurred
• CA Distinction: does not allow opinions or diagnoses

Question 68

Public records

Answer 68

admissible if:
(i) record describes activities and policies of public office
(ii) record describes matters observed pursuant to duty imposed by law. or
(iii) record contains factual findings resulting from investigation authorized by law, unless untrustworthy
(iv) admissible in civil cases only, inadmissible in crim cases

*CA distinction: legally authorized investigative reports are admissible in rim cases

Question 69

Official records

Answer 69

Admissible if:
(i) it is a public record or report (ie birth/death/marriage cert, police report, unless there is a double hearsay issue)
*CA Distinction: police reports are admissible

(ii) records of vital statistics, or

(iii) it is a certified copy of a judgment

*Felony convictions are admissible in criminal actions, but civil judgments are inadmissible in crim actions

*CA Distinction: certified copies of judgments are admissible in civil actions

Question 70

Learned Treatise

Answer 70

Admissible if:
(i) an expert testifies treatise is authoritative
*if expert refuses to admit publication is authoritative, another witness must establish its as an authority

(ii) either on direct or cross

CA distinction: only admissible to show matters of general notoriety or interest

Question 71

Ancient docs

Answer 71

Admissible if:
(i) doc is 20 years old (CA: 30)
(i) does not facially show any irregularities, and
(iii) was found in a place where it was expected to be found

Question 72

Double Hearsay

Answer 72

HS within HS. For the entire statement to come in, all levels of HS must be admissible

*TIP: start with the source of the statement, and work your way to the last person who made the statement

Question 73

Federal catch-all

Answer 73

the federal court has discretion t admit HS evidence if :
(1) statement is trustworthy
(2) it is strictly necessary to the case, and
(3) there is adequate notice to the other party/

Question 74

6th AM and Confrontation Clause

Answer 74

Even if HS statement is admissible, the CC may exclude statement if:
(i) declarant does not testify at trial
(ii) declarant is now unavailable
(iii) statement is testimonial
**Testimonial statements are made to further police investigations or aimed at producing evidence or prosecution
*Statements made to police to deal with an on-going emergency are non-testimonial
(iv) D had no opportunity to cross-examine declarant

Question 75

Judicial notice

Answer 75

judicial notice is the recognition of a fact as true without formal presentation of evidence

*Courts may take judicial notice of indisputable facts that are either:
(1) matters of common knowledge in the community or
(2) capable of accurate and ready verification by resorting to accessible sources of unquestionable accuracy

*Courts must take judicial notice if it is:
(1) requested by a party, and
(2) supplied with necessary information

*If a court takes judicial notice in a crim case, the jury must be instructed the fact is not conclusive and the jury may, at its discretion, accept the judicially noticed fact

*if a court takes judicial notice in a civil case, the jury must accept judicially noticed facts as conclusive

*CA Distinction: Facts that are judicially noticed are conclusive in BOTH civil AND crim cases (however, may be subject to 6th AM challenges)