Evidence NOTES15

Chapter 14 Proof Issues Allocation of Proof; Judicial Notice; Presumptions I. JUDICIAL NOTICE: a. 201—Judicial Notice of Adjudicative Facts i. (a) Scope of rule. This rule governs only judicial notice of adjudicative facts. ii. (b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either 1. (1) generally known within the territorial jurisdiction of the trial court or 2. (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. iii. (c) When discretionary. A court may take judicial notice, whether requested or not. iv. (d) When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information. v. (e) Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken. vi. (f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding. vii. (g) Instructing jury. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed. b. Adjudicative Facts—facts that has bearing on case before the court i. Facts jury must take in consideration of deciding the case ii. Cal.—NO distinction between adjudicative and legislative facts = judicial notice is proper with both [as a practical matter legislative facts do NOT usually have a bearing on the case] c. Legislative Facts—beliefs that most people hold…often form basis for legislative decisions and reasoning in judicial resolutions i. E.g.—spousal privilege = if force one spouse to testify against the other, the marriage will be in peril [NOT really a fact, but a belief] ii. Do NOT worry about!! d. Judicial Notice: i. CIVIL—if court judicially notices a fact = the jury MUST take that fact as conclusively established 1. Fact that does NOT permit any party to offer contrary evidence 2. Kinds of facts that have judicial notice do NOT usually have contrary evidence [E.g.— sun rises in east and sets in west] ii. CRIMINAL—jury let known that MAY accept judicially noticed facts as established, but NOT required to do so [6th Amendment gives criminal D right to have their fate decided by jury, NOT judge = can instruct that they may accept; have option to disregard it; can offer contrary evidence (realistically not a lot of counter evidence out there)] e. 201(b)—Kinds of facts… i. NOT a fact that can reasonably be in dispute [E.g.—Sacramento is capital of Cal.] ii. Capable of accurate and ready determination = sources can NOT reasonably be questioned f. Rationale—if a fact is that well-established and can NOT be disputed, why waste time and call witnesses = do NOT want to waste time proving things that everyone knows i. Court has ability to take judicial notice whether requested or not [discretionary if wants to do it on its own] ii. Mandatory if requested and can supply foundation that is proper 1. Generally known OR 2. Easily determined from sources that can NOT be questioned g. Judicial notice can be taken at any time [during trial] i. CIVIL: 1. Judicial notice can be taken for the 1st time on appeal 2. E.g.—if verdict rendered that it is clear that jury assumed the fact as true (no evidence offered to prove) [appellate court can take judicial notice at first time on appeal] ii. CRIMINAL—if jury is NOT instructed on judicial notice = can NOT be raised for the 1st time on appeal 1. E.g.—judge clearly believed D was common carrier in fraud case…but NO evidence was offered on it, and no instructions given = judge could NOT take judicial notice on appeal 2. Verdict thrown out for failure to meet its burden of proof h. Problems: i. 14-2: Judge asked to take judicial notice of fact that Michael Jordan was MVP of 2002 NBA seasoncapable of ready determination from sources that can NOT be questioned = judicial notice ii. 14-3: In a divorce action, petitioner asks court to take judicial notice that adversarial testimony of parents in presence of young is bad policy and would destroy family unitlegislative fact, NOT proper for judicial notice…may be true, but not always iii. 14-4: D sued for trespassing…at issue is whether it was still light out at time D allegedly trespassed…D asked court to take judicial notice that it was dark out at timeNOT proper for judicial notice = not enough facts, but could bring almanac that the sun sets at this time on this day, but could not be dark for other reasons [NOT proper for court to take judicial notice that it was dark, but could take judicial notice of time the sun set on this day in this area]…light or dark is capable of being disputed iv. 14-5: In desegregation suit brought in LA, the P asked the court to take judicial notice of S. Ct. decision in Brown v. Bd. of Educ.court generally take judicial notice of decisional authority in US and sister states [check Supreme Court Reporter] v. 14-6: Issue concerned exact dates of Constitutional Convention 1. Constitutional Convention took play May 25-Sept. 17, 1787type of fact capable of easy determination = judicial notice is proper 2. Fact that there was a rule of secrecy requiring the framers to close the windows during their discussionsborderline…depends upon where it was recorded and when it was recorded = do NOT know enough to know how this was recorded, if in same historical notes as dates or well-known and recorded could take judicial notice 3. Fact that R.I. was only state that did not attend the conventionproper for judicial notice = widely and accurately recorded vi. 14-7: P alleges that D threw boiling water at her…P asks court to take judicial notice that water boils at 212 degrees Fscientific principles/facts are generally NOT disputed = easily determined and possibly generally known, therefore proper for judicial notice vii. 14-8: Rock band brings suit for copyright infringement…to show the amount of damages, it uses the record sales of another similar band, the KKs…judge happens to be very familiar with the band, even though most people in jurisdiction have never heard of such a group…should judge take judicial notice that KK band plays music similar to Pjudicial notice does NOT mean what the judge knows, this is a fact that can be disputed (not easily determined and not generally known) = let jury determine if the music is similar by playing the music…judicial notice is NOT proper viii. 14-9: DJ brings an admiralty suit against JL as a result of a boating accident that occurred in Atlantic Ocean approximately 10 miles off Md. coast…J asks court to take judicial notice of maritime lawPROBLEM with maritime law [maritime law/municipal law/foreign law/patent law] = have to be pleaded and proved…call expert in maritime law who could prove the law…since maritime law is amalgamation of rules, laws, and maritime laws that can be disputed, need an expert to prove the issue ix. 14-10: Judicial Notice?? 1. Standard chemical dictionary in a case involving some chemicals listedYES…court could take judicial notice of definitions in dictionary 2. Death certificate on record in appropriate bureau of recordsYES…capable of readily, easy determination [death certificate and facts contained within] 3. Case involving NHL, fact that ice hockey is a very rough and physical contact sportJudicial notice that contact sport…maybe ‘very rough’ is something jury should consider II. 4. Case involving a bank loan, the prevailing interest rates at the time the loan was madeYES…could go to historical sources and easily determine what prevailing sources were 5. Suit involving the length of time it took to receive a particular letter, fact that it takes mail from Baltimore to Puerto Rico at least 4 days to arrive at its destinationmight NOT be capable of easy determination = if evidence to contrary that other wise is wanting to present…NO judicial notice; if other side is NOT offering counter evidence = judicial notice 6. Fact that US geological survey maps show there were numerous geological breaks across the Spokane River in 1911If have a map from 1911 = not capable of being generally disputed, therefore judicial notice is proper 7. Contents of municipal ordinanceNO! Can NOT take judicial notice because NOT well-kept 8. In asbestos action, proposition that exposure to asbestos causes cancerNO! People willing to dispute things, will NOT be proper = if rule that asbestos causes cancer, has fact of eliminating defense experts x. 14-11: 1. In breach of K action brought by R Mills against B Mills, can court take judicial notice that socks and sweaters are usually prepared through knitting’Usually’ is a bit vague, but if have authoritative source that says 90% are produced by knitting = could lay foundation [and whether opposing party has facts that could dispute the evidence] 2. Action involving redistricting in voting districts in Ky., the judge wishes to take judicial notice of the location of state capital…attorney says we to do not object to Louisville, judge replies that it is FrankfurtState capital = generally known within territorial jurisdiction…even if NOT known by ‘yahoo counsel,’ still capable of judicial notice 3. If redistricting case was appealed, could appellate court take judicial notice as to location of certain towns in Ky.Can NOT take judicial notice 1 st time on appeal in criminal action…OK in civil action!! 4. In robbery trial, court took judicial notice of effect of certain anesthetic in ruling that D’s confession was involuntary…judge relied solely on his own experience with anestheticsort of things that parties would like to offer counter evidence = judicial notice is NOT proper PRESUMPTIONS: a. 301: Presumptions in General in Civil Actions and Proceedings—In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. i. ONLY CIVIL cases b. 302: Applicability of State Law in Civil Actions and Proceedings—In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which State law supplies the rule of decision is determined in accordance with State law. c. Presumptions: i. Conclusive: 1. NO amount of evidence can overcome 2. E.g.—coal miner with black lung disease is totally disabled = NO amount of information can dislodge assumption ii. Permissive: 1. Inference…NOT that much affect on litigation 2. E.g.—if you find the pavement is wet, you may assume that it rained iii. Rebuttable: 1. Presumption that arises based on certain facts 2. E.g.—presumption that if you leave a chattel with a bailor that is undamaged and you go to pick it up and it is trashed… a. If basic fact that left chattel in perfect condition b. Presumption is that any damage that occurred when you left is due to the fault of the bailee c. Burden shifts and bailee is to offer evidence to prove that it was NOT his fault [burden of production of evidence is placed on party that most likely to have evidence] i. If do NOT offer evidence that is was NOT their fault = person who left car wins ii. Must offer evidence to rebut 3. Controls the outcome of litigation in the absence of rebuttable facts d. CIVIL CASES: i. Burden of Proof/Persuasion: standard of proof varies—beyond a reasonable doubt; preponderance of evidence… ii. Shifts toBurden of Production iii. After P proves Basic Facts…therefore Presumed Facts: 1. Shifting to D: D must prove case by a preponderance a. Burden of Proof/Persuasion b. Burden of Production c. Counter evidence should overcome presumption 2. Bursting Bubble: Fed. Rules a. ONLY Burden of Productions shifts…NO shift in burden of persuasion to D b. D meets with production of evidence: i. Presumption drops out of case completely ii. P still has to prove case [but with NO presumption] c. ANY credible counter-evidence will burst presumption and leave P holding empty bag!! iv. Cal.: 1. BURSTING presumption—properly addressed, properly stamped envelope presumed delivered in due course = presumed ONLY for purpose of resolving litigation 2. NON-bursting presumptions [605]—does NOT burst with introduction of counterevidence a. Presumptions for policy reasons b. Presumption that child born during marriage = child of husbandpresumption furthers public policy other than a dispute [furthering other public policies!!] i. Husband would have to offer enough evidence for jury to find by preponderance of evidence that child is NOT father ii. Presumption stays in case and has to be overcome by appropriate level of evidence e. CRIMINAL CASES: i. Joint Control Presumption: 1. If there is a presumption that drugs found in car = belong to person in car 2. NOT rebuttable presumption, because can NOT shift burden of proving innocence to D ii. Burden of Persuasion ALWAYS falls on prosecutor iii. Rebuttable presumptions MUST be made permissive [jury MAY assume…] f. Problems: i. 14-12: Major issue in action for payment of insurance proceeds is whether P notified the D of P’s intention to renew his insurance by certain date…P claimed he mailed letter more than week in advance of time lime and D company claimed that it did not receive notice 1. Creates rebuttable presumption that letter received so long as he establishes basic fact [properly addressed; stamped] a. Establishes a presumption in P’s favor that letter was received b. Up to insurance company to prove that never got it 2. If person who receives mail testifies that NEVER received the mail a. Fed. = presumption would burst and P holding the bag b. Cal. = NO other public policy besides resolving dispute, therefore bubble is burst 3. As long as ANY credible evidence to contrary introducedbubble is burst a. If completely NON-credible evidence = presumption does NOT burst b. E.g.—witness drooling, incoherent, and testifying inconsistently ii. 14-13: Real estate magnate died leaving $10,000,000 in cash…J made 2 wills during life, 1 st left all money to SA and 2nd left estate to 11 children 1. If 2nd will had large X drawn through it, and a presumption exists that a will that is made but mutilated is presumed revoked, what would have to be shown for SA to recover entire estatePresumption: if mutilated will, presumed revoked = SA would have to establish X through will is mutilation of will a. Basic factsX = mutilation or X = signature b. Proper for judge to instruct jury i. If find X though will = mutilation, then may presume that will is revoked ii. If find X is NOT a mutilation = may presume that will is valid 2. Assuming SA could show X mutilated willchild would have to meet a burden of production that NOT revoked [evidence that testator did NOT intend to revoke will]…even if mutilated, could have been accidental and NOT intended to revoke 3. Basic fact = will is mutilated 4. Presumed fact = will is revoked 5. If ‘shifting burden of persuasion’ theory governedchildren have different standard that they have to meet to rebut presumption = if burden of persuasion shifts…children would have to prove by preponderance of evidence that will was NOT revoked iii. 14-14: In a paternity action in TN, the wife claims her estranged H is the father of her new-born child 1. If it is presumed that a child born to a married woman is the child of the married woman’ husband, and it operates as a rebuttable presumption [301]presumption that H’s child 2. What would W have to show to trigger presumptionburden of production = prove when child born 3. What would H have to show to rebut presumptionH would have to show ANY credible evidence that child was NOT his = presumption will go away…bubble will burst 4. Shifting burden of persuasion [Cal.]public policy effect and would shift burden of persuasion = presumption does NOT drop out of case, but person against whom presumption operates would have to prove by a preponderance that NOT true iv. 14-15: B was millionaire known to have kept last will and testament in fridge…after she died, search turned up nothing…presumption that if a will properly made and then lost is presumed revoked, earlier will left to research Oreos 1. If B’s son claims fridge will, which left all money to him, still governs, who winswill that is lost = presumed revoked…revives Oreo will and they get all $$ 2. If son could produce some evidence showing that the fridge will was buried in back yardNO longer lost = presumption drops out, but does NOT necessarily mean that son will win [Oreo could offer evidence that when she buried it, she intended to revoke it]…outcome may not change, but presumption would drop out v. 14-16: R gets restless one day and decides to blow up buildings…after crime spree, charged with destruction of property, criminal trespass and aggravated battery 1. R is 6 years old…if rebuttable presumption that child under 7 is presumed incapable of committing felony, what would state have to show to overcomecan NOT have rebuttable presumption against criminal D = has to be converted to permissive presumption a. But here, it is against the state, therefore OK!! b. If state can offer any evidence that he is capable = rebuts presumption 2. Difference in amount of evidence state must show if this presumption shifts burden of persuasion as well as burden of productionin criminal case, must show that beyond a reasonable doubt able to commit a crime!! 3. If presumption considered conclusive, what must state showstate can NOT overcome conclusive presumption = NO amount of evidence can dislodge presumption…it is a PRINCIPLE of LAW 4. How should court instruct jury if presumption considered to be permissivejury may, but is NOT required to find that given his age, he is incapable of committing the crime vi. 14-17: OK statute provides that anyone in hotel room is presumed to constructively possess illegal narcotics recovered from an open area in that room…J found in room in which 2 marijuana joints were recovered from ashtray in open room, 3 friends in room and J was arrested and charged with unlawful possession of marijuana…J objects to statute and claims stopping by to chat with friends after purchasing trinkets for daughter 1. How should judge instruct jury on presumptionpermissive = can infer, but are NOT required to infer that he was in possession of marijuana 2. What effect would J’s testimony about purpose of visit to hotel room have on presumptiondoes NOT burst presumption [like rebuttable presumption in civil case]…because NO rebuttable presumption against criminal D = ONLY permissive presumptions…jury could decide to draw from inference or disregard 3. Is presumption constitutionalso long as presumption is given permissive effect = it is constitutional vii. 14-18: D charged with murder…D is presumed sane unless he satisfies a burden of production showing that he is insane…if D meets this production burden, government must then prove sane beyond a reasonable doubt: 1. How much evidence must D offer to overcome this presumptionany credible evidence = if D offers a scintilla of evidence…presumption of sanity is overcome [presumption that sane has burst] 2. Does presumption shift burden of persuasion or only burden of productionburden of persuasion is ALWAYS on the government…can ONLY shift burden of production = government has to prove beyond a reasonable doubt that D was sane [REALLY difficult to prove] viii. 14-19: J left new car in S’s Parking Lot…when J returned for car, there was big crater in trunk and sides bashed in…when J asked attendant what happened, attendant responded that it was like that when J brought it in…J sued S’s Parking Lot…suppose presumption exists that goods damaged or lost by a bailee while goods are in bailee’s possession are presumed to have been the result of bailee’s negligence…also, assume FRE [301] applies 1. What will J have to prove to trigger presumptiongoods damaged while in bailee’s possession 2. If presumption appliesif parking attendant says it was like this when brought it in = presumption drops out and up to jury to decide = If jury does NOT find bailee’s fact to be trueJ could win based on presumption!! 3. If no presumption exists = If basic facts are NOT proved = parking lot wins, J has NOT met burden of persuasion by preponderance of evidence ix. 14-20: G mailed a payment to her CC company after paying off a huge balance…company claimed it never received payment and promptly sued for damages, including substantial late fee…G offered evidence at trial that properly addressed envelope, placed a stamp on it and mailed it…presumption exists that ‘a letter properly addressed, stamped, and mailed is presumed to have been received’ 1. If G met burden of production of basic fact, presumption applies and burden of production would shift to CC companyif find letter properly addressed, stamped, and mailed = must find letter was received 2. What if company testifies that it did NOT receive the letter301 = presumption bursts…P bears burden of proving by preponderance that did receive [NO presumption that letter was received] 3. What if company had stated that it had no knowledge of whether it had received payment because its records were missing, but G had failed to properly mail the letter because she did NOT place a stamp of envelopepresumption goes to jury = up to jury to decide whether they believe she stamped it…if it was properly addressed, stamped, and mailed, there is a presumption in her favor; if NOT, no presumption x. 14-21: S charged with possession of a firearm after being arrested in a hotel room with 4 other people…S was a guest of one of the other occupants, J…room was NOT registered in her name…firearm was found in an unlocked drawer on the nightstand…at trial, the prosecutor asked the judge to instruct the jury on presumption in a jurisdiction that ‘a person found in a hotel room containing a firearm is presumed to constructively possess that firearm’jury may, but is NOT required to, find that she constructively possessed the firearm = jury weighs against evidence that briefly stopping by and not in plain view xi. 14-22: Car parked on a steep hill crashed into a car at the bottom of the hill after its parking brake gave out…owner of the demolished car, T, sued E, who was found holding the keys to the runaway car...presumption that ‘ownership of a car is presumed from the possession of the car’s ignition key’ 1. If FRE 301 applies, D, E could ‘burst the bubble’ of presumption at trialif testifies credibly [doesn’t contradict herself or drool on the stand] = any credible evidence will burst the bubble 2. If presumption had shifted the burden of persuasion, what would be required for E to overcome the presumptionhas to prove by a preponderance of evidence that it is NOT her car = would want some evidence to support her [up to jury]