Evidence- Procedural Issues

Question 1

When may facts be judicially noticed (recognition of fact as true without formal presentation of evidence)?

Answer 1

• common knowledge within the community

- capable of verification by easily accessible sources of unquestionable accuracy

Question 2

How must a court instruct the jury as to judicially noticed facts?

Answer 2

Civil case: instruct jury to accept noticed facts as conclusive

Criminal case: instruct jury that it MAY accept noticed facts as conclusive

Question 3

What is a presumption and when is it destroyed?

Answer 3

Presumption is a rule that requires a particular inference to be drawn from an ascertained set of facts (e.g. person missing for 7 years is presumed dead)

Destroying Presumptions in Civil Cases: presumption destroyed when adversary rebuts with evidence.

Destroying Presumptions in Criminal Cases: no mandatory presumptions against criminal Ds.

Question 4

What if a piece of evidence is admissible for one purpose (e.g. to impeach witness) but not admissible for another purpose (e.g. as substantive evidence)?

Answer 4

Judge should issue a limiting instruction telling jury not to factor in that evidence where it is not admissible.

Question 5

What procedural steps should a party take to judicially notice a fact if the court does not do it on its own?

Answer 5

Party must formally request it be noticed.

• judicial notice can be taken for the first time on appeal

Question 6

Does judicial notice apply to adjudicative and legislative facts?

Answer 6

It only applies to adjudicative facts. Legislative facts are allowed but need not be judicially noticed (no common knowledge + independent verification)

Adjudicative: those that relate to particular case (e.g. New York City is in New York)

Legislative: those related to legal reasoning and lawmaking (e.g. rationale behind spousal privilege)

Question 7

What law must be judicially noticed?

Answer 7

Mandatory: federal/state/local law and regulations

Permissive: municipal ordinances, private acts or resolutions of congress or state legislature, laws of foreign countries

Question 8

Who has the burden of production and the burden of persuasion of evidence?

Answer 8

Burden of production: pleading party usually has burden to make a prima facie case. Then other side must come forward with evidence to rebut.

Burden of persuasion: civil is preponderance of evidence and criminal is beyond a reasonable doubt. Always on pleading party.