Judicial Notice Flashcards
Judicial notice is:
a substitute for proof where the court accepts certain adjudicative facts as true without requiring formal presentation
(science, geography, gov’t records)
The first kind of judicial notice is commonly known facts, that are
generally known in the jurisdiction and not subject to reasonable dispute
judicial notice of facts occurs for facts which are
capable of accurate and ready determination by resort to sources of unquestionable accuracy.
radar; blood tests; DNA profiling; historical records; prevailing interest/mortgage rates; mortality rates; Father’s Day 1984 was June 19th.
Judicial notice will not take notice of
opinions
The judge may not take judicial notice of a fact merely because:
it is in her knowledge
FRE 201(d) judicial notice is MANDATORY if:
requested by a party and supplied by the necessary information
Issues of judicial notice may be raised for the first time:
3
pretrial
during trial
appeal
As a general rule, once a fact is judicially noticed:
no contradicting evidence is permitted
When there is a judicially noticed fact to a civil jury, effect?
they must take it as true
When there is a judicially noticed fact to a criminal jury, effect?
they may take it as true
Burden of going forward/producing evidence is on:
Civil?
Criminal?
π for civil
∆ for criminal
There are three levels to the burden of persuasion:
- preponderance of the evidence
- Clear and convincing evidence
- Beyond a reasonable doubt
what is the traditional civil standard for burden of persuasion?
preponderance of the evidence
burden of persuasion for motion to suppress?
preponderance of the evidence
Clear and convincing: Reserved for:
- a criminally related civil case (fraud)
- validity of a will or deed
- insanity defense burden
burden of persuasion for criminal law?
beyond a reasonable doubt
There are two main ways to shift a burden of production:
- affirmative defenses
2. presumptions
Presumptions are
a conclusion made as to the existance or nonexistance of a fact that must be drawn from other evidence (admitted and proven to be true)
A presumption arises where one set of facts, Basic Facts, once established by the proponent,
gives rise to another set of facts, Presumed Facts, absent a contrary showing.
Once the opponent of presumption evidence proves the presumption is not true
no longer presumed
Role of presumption in criminal cases
NOT allowed
What presumptions are irrebuttable?
presumptions created by statute or common law
