Judicial Notice and Presumptions

Question 1

Judicial Notice (FRE)

Answer 1

Rule 201:
Judicial notice is a substitute for proof where the court accepts certain “adjudicative” facts as true without requiring formal presentation of evidence. It asks for a fact to be proved although no evidence is presented

Question 2

Types of Judicial Notice

Answer 2

1. commonly known facts, which are not subject to reasonable dispute; generally known within the jurisdiction
2. facts that are capable of accurate and ready determination by resort to sources of unquestionable accuracy

Question 3

EXAMPLES 1: That the Bronx is uptown; Austin is the capital of Texas; that a local street runs one way
EXAMPLES 2: accuracy of radar; blood tests; historical records; prevailing interest/mortgage rates; mortality rates; Father’s Day 1984 was June 19th.

Answer 3

The two types of judicial notice (FRE 201):

1. commonly known facts
2. capable of accurate, unquestionable determination

Question 4

FRE 201 judicial notice is MANDATORY if:

Answer 4

requested by party AND supplied with the necessary information

Question 5

Raising judicial notice in trial

Answer 5

May be raised for the first time either pre trial, during trial, or even on appeal. Need not provide opposing party with notice, but they can dispute whether the court should take notice.

Question 6

Conclusiveness of judicial notice/jury instructions

Answer 6

Once a fact is judicially noticed, no contradictory evidence is permitted.
A civil jury: must accept a judicially noticed fact as conclusive.
A criminal jury: may, but is not required to, accept a judicially noticed fact as conclusive

Question 7

Burdens of Proof

Answer 7

Burden of Production (on who); Burden of Persuasion (to what degree)

Question 8

Burden of Production

Answer 8

Burden of going forward/producing evidence in the case; on the plaintiff (the prosecution in criminal cases)

Question 9

Burden of Persuasion

Answer 9

The degree to which the evidence must be proven

Question 10

Three levels of burdens of Persuasion

Answer 10

1. Preponderance of the evidence: traditional standard in civil cases (also in some crim cases for a motion to suppress and voluntariness of a confession)
2. Clear and convincing: for criminally related civil cases (fraud); validity of a will/deed; insanity in federal court (high bar)
3. Beyond a reasonable doubt: criminal standard

Question 11

EXAMPLE: In a negligence case, Plaintiff establishes duty, breach, and causation, but fails to prove the element of damages.

Answer 11

Plaintiff did not meet his burden of production.

Question 12

Burden shifting: two ways to shift a burden of production

Answer 12

1. Affirmative defenses (e.g. Statute of limitation; establishing jurisdiction, Rule 12(b)(6), self defense, laches)
2. Presumptions = A conclusion made as to the existence or nonexistence of a fact that must be drawn from other evidence that is admitted and proven to be true.

Question 13

“Bursting Bubble” Theory of presumptions

Answer 13

Once the opponent presents sufficient evidence that the presumed fact is not true, the presumption disappears and the bubble bursts

Question 14

Rebuttability of presumptions

Answer 14

Most presumptions are rebuttable, though often disfavored in criminal cases. Some presumptions, created by statute or common law, are irrebuttable.