Procedural Issues Flashcards
What is judicial notice?
Recognition of a fact as true without formal presentation of evidence
What facts are appropriate for judicial notice?
Indisputable facts that are either notorious (matters of common knowledge within the community) or manifest (capable of verification by resort to easily accessible sources of unquestionable accuracy)
What is the effect of judicial notice?
Civil: instruct the jury to accept the judicially noticed fact as conclusive
Criminal: the court must instruct the jury that it may but is not required to accept the judicially noticed fact as conclusive
What must a party do if a court does not sua sponte take notice of a fact?
Formally request notice be taken
Can judicial notice be taken for the first time on appeal?
Yes
Which facts does the FRE govern?
FRE governs adjudication facts — meaning those related to the case — but does not require that legislative facts — those related to lawmaking or legal reasoning — be manifest/notorious.
What law must/may the court take judicial notice of?
The court must take judicial notice of federal and state law and the official regulations of the federal government and forum state. Courts may take judicial notice of municipal ordinances, private acts, or federal/state legislative resolutions and laws of foreign countries
What is a presumption?
A presumption is a type of substitute proof in the form of a rule requiring that a particular inference to be drawn from a set of facts
When is a presumption destroyed in a civil case?
When the adversary produces evidence to rebut
Are there presumptions in criminal cases?
no mandatory presumptions against criminal defendants
What is the effect of a presumption?
Shifts the burden of production to the party against whom the presumption operates (does not shift the burden of persuasion)
