Evidence Flashcards
I. Dana’s Opportunity to be Heard on Judicial Notice.
The issue is whether the court is required to consider Dana’s opposition to the weather being judicially noticed in the civil trial.
Judicial notice occurs when a party to a case asks the court to accept a matter as factually established. When a court takes judicial notice of such a fact, the judicial notice does not supplant the party’s burden of proving that fact or the element of the action that the fact relates to. When a court takes judicial notice of a fact that is disputed by the parties, both parties must be heard on the fact before the judge takes notice. In a civil case, this is especially important, because when judicial notice is taken, the jury is instructed that it
must accept the fact as true and established.
Application
Here, both parties disputed the weather on October 18. The weather
conditions are relevant to the case because Cara claims that she identified Dana by her coat, while Dana maintains that she was not wearing a coat on that day because of the weather. Dana asserts that the weather was overcast, but nice enough to work out outside without a coat; however, Cara claims the weather was cold and rainy. Accordingly, this fact is material and disputed between the parties. Cara offered evidence of a certified copy of the National Weather Service agency in support of her request for the court to take
judicial notice. This document established that on October 18, it “rained all day”, which conflicts with Dana’s testimony. Therefore, before the jury was instructed that it must accept that it was raining the entire day on October 18, Dana should have had the opportunity to be heard on the issue. By overruling her objection, Dana was prevented from properly asserting her defense.
Thus, the court erred by denying Dana the opportunity to be heard on the issue of the weather.
II. Judicial Notice
The issue is whether the court properly took judicial notice of the weather after evidence was presented to establish the weather.
A court may take judicial notice of a fact that cannot be disputed. To take such notice, the fact must be established conclusively by the party seeking judicial notice.
Application
Here, Cara sought judicial notice of the weather on October 18 and provided evidence in support of this request. The evidence from the federal agency was reliable to as to the weather. However, Dana objected to the fact being judicially noticed. Because this case was a civil matter, the court had to instruct the jury that it must consider the fact as established conclusively. The report offered by Cara likely supports this, and there is no evidence in the facts to the
contrary, other than Dana’s testimony. Thus, the court likely did not err in taking judicial notice of the weather on October 18.
III. Character Evidence: “Carelessness”
The issue is whether Dana’s characterization of Cara as careless was improper character evidence.
Character evidence is inadmissible in civil cases unless character is an essential element of the crime charged (fraud, for example). Character evidence is offered to show a trait or propensity of a person and that on a certain date and time, the person’s actions conformed to that character trait. Character evidence may be offered when a party puts their own character at issue.
Evidence of someone’s character may be admissible to show a party’s motive, plan, intent, or habit.
Application
Here, Dana testified that Cara was “careless.” This trait was offered to show that on October 18, Cara acted in conformity with her careless trait because she misplaced her phone. This case is civil, so character evidence is generally barred. Testimony about Cara’s carelessness is likely considered improper character evidence. However, Dana may argue that the trait was not offered as character evidence but was instead habit evidence. Dana testified that Cara
“often” misplaced her phone, forgetting it frequently throughout the typical workday. Thus, if offered as character evidence, Cara’s trait of being careless is likely improper.
IV. Character Evidence: Habit
The issue is whether Dana’s testimony about Cara frequently misplacing her phone is admissible as habit evidence.
Habit evidence can be distinguished from character evidence in that a person’s day-to-day habits are probative that on a certain day, they acted as they typically do. Habit evidence is admissible, while character evidence is not. See above for applicable rules.
Application
Here, Dana testified that Cara “often” misplaced her phone. Although Dana may argue that this is enough to establish a habit, it is likely too unspecified and regular to be considered a habit. Her testimony does not allege that Cara left her phone a meeting room every day, or even weekly. This vague amount of time that Cara engaged in the act of leaving her phone is likely not frequent enough to be considered a habit. Thus, the testimony related to Cara often misplacing her phone is likely inadmissible character evidence.
