Presumptions and Judicial Notice

Question 1

Presumptions - Civil Cases Only

Answer 1

Presumptions are conclusions the law requires the jury to find if the basic facts are established by the party raising the presumption. There are three types (i) conclusive presumptions (ii) rebuttable presumptions affecting the burden of producing evidence, and (iii) rebuttable presumptions affecting the burden of proof.

Question 2

Conclusive Presumptions

Answer 2

established by law, rule of law that is irrebuttable by any amount of proof

Question 3

Rebuttable presumptions affecting the burden of producing evidence (weak presumptions)

Answer 3

presumptions affecting the burden of producing serve no greater public policy besides making litigation easier and facilitating it to move forward

Question 4

What are the four options available to an opponent to rebut a presumption and their result?

Answer 4

(1) Offer nothing = Presumption arises
(2) Offer evidence against basic facts = presumption arises only if the jury finds the basic facts, may if not
(3) Offer evidence against presumption = presumption disappears and jury must resolve presumption with any evidence introduced against the presumption (non-existence)
(4) Offer evidence against presumption and basic facts = same results as combing 2 and 3 (above), basic facts must be established and no presumption non-existence can be introduced for the presumption to survive

Question 5

Rebuttable presumptions affecting the burden of proof (strong presumptions)

Answer 5

Presumptions affecting the burden of proof serve a greater public policy.

Opponent’s options and the results

(1) Offer nothing = presumption arises
(2) Offer evidence against basic facts = presumptions arises only if the jury finds the basic facts; may if not
(3) Offer evidence against presumption = presumption stays and the burden of proof shifts
(4) Offer evidence against presumption and basic fact = same results as combining 2 + 3 (above) if the basic facts are established, presumption will be found (must)

Question 6

Judicial Notice

Answer 6

The judge “takes notice” of a fact without need for evidence. There are three types (i) adjudicative facts, (ii) legislative facts and, (iii) evaluative (backgrounds) facts

Question 7

Requirements for Judicial Notice

Answer 7

Common and general knowledge in the particular jurisdiction; Well-established and authoritatively settled; practically (certain) indisputable; for the judge to take notice

Question 8

Three types of facts the court can take judicial notice

Answer 8

• Adjudicative facts: the who, what, when, where, and why
• Legislative facts: court expansion of legislative body of law; court-made law
• Evaluative (background) facts: things about something much larger and outside of the case

Question 9

Judicial Notice - CA

Answer 9

CA: allows the judge to take notice of the courts own records but not for the truth of the record, more that the record simply exists