Evidence 8

Front 1

What is judicial notice and how does it differ from formal notice?

Back 1

Both relate to process of bringing info before trier of fact

Formal: intro of evidence in accordancewith the rules of evidence. This typically allows parties to cross-examine eachother witnesses and to introduce their own evidence to refute the factsallegedly established by the other party

Judicial: allows facts to be established in a case without going through the formal process normally associated with proving facts.

Front 2

What's the policy behind judicial notice?

Back 2

It’s an efficiency tool to avoid wasting time, money, and delay to introduce things that are basically incontestable

Getting rational jury verdicts

Front 3

Judicial notice applies only to ________ facts.

Back 3

Adjudicative

Front 4

What kinds of facts can be judicially noticed?

Back 4

Adjudicative.

A fact that is not subject to reasonable dispute b/c it:

(1) is generally known within the trial court's territorial jurisdiction; or

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned

Front 5

What is a legislative fact?

Back 5

legislative facts arethose which have relevance to legal reasoning and the lawmaking process (judge's application of law to fact)

Front 6

[judicial notice]

The phrase "within the trial court's territorial jurisdiction" has caused a court split - what is it?

Back 6

Some courts hold that once a legislative fact has been established into statutory interpretation, it become adjudicative

Other courts say that it is always a legislative fact

Front 7

What is an evaluative fact?

Back 7

Background facts; facts that don't necessarily need to be stated but can be inferred

(e.g. Customsearches are only done for international arrivals and we gave him a customsearch SO he must have traveled internationally)

Front 8

A judge has judicially noticed a fact. Can the parties bring evidence before the jury designed to cast doubt on the fact?

Back 8

Civil = NO

Criminal = YES

Front 9

When can/must a court take judicial notice?

At what point in the case?

Back 9

The court: (1) may take judicial notice on its own; or (2) must take judicial notice if a party requests it and the court is supplied with necessary information

The court may take judicial notice at any stage of the proceeding

Front 10

Once the court decides to take judicial notice on a fact, what happens?

Back 10

(1) Court can just take it or give notice before taking

(2) Party can request to be heard to discuss the proprietary nature of the judicial notice and the nature of the fact to be noticed (regardless of prior notice)

(3) Court must provide proper instruction - civil: jury must accept fact as conclusive; criminal: jury may or may not accept as conclusive

Front 11

What are the 3 types of facts and what is the key element to distinguish them?

Back 11

(1) Legislative

(2) Adjudicative

(3) Evaluative

The USE made of a fact and the whether the fact is controversial

Front 12

Geographic information is an example of a ______ fact

Back 12

adjudicative

Front 13

Can judicial notice on an adjudicative fact be taken for the first time on appeal?

Back 13

Yes but not in a criminal case (b/c not necessarily taken as true) UNLESS it is a bench trial

Front 14

Can a court take judicial notice on a document filed in another court?

Back 14

Yes, for the limited purpose of recognizing the "judicial act" that the doc represents or the subject matter of the litigation

but NOT for the truth of the matter asserted

Front 15

What are the two types of evidentiary burdens in a civil case? (Just name them)

Back 15

Burden of Persuasion

Burden of Production

Front 16

Define the following:

Burden of Persuasion

Burden of Production

Back 16

Persuasion: The party can succeedon the claim or defense only if the trier of fact is persuaded of the elementsof that claim or defense by the requisite degree of certainty (in civil cases,typically a preponderance of the evidence or clear and convincing evidence)

Production: The burden that any givenpoint in time during a case of coming forward with evidence on a particularelement of a claim or defense with the consequence of not coming forward(sitting silently) of having a verdict come down against you on that point

Front 17

The party with the ultimate burden of persuasion also has _________________.

Back 17

the burden of production

Front 18

What is a "presumption?"

Back 18

A rule of law, created bystatute or common law, that requires the trier of fact to draw a particularconclusion (the presumed fact) if some other fact or set of facts (the basicfact) is proved, in the absence of counterproof

Front 19

What is the presumptions in civil cases generally?

Back 19

Unless a federal statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally.

Front 20

What is Rule 302?

Back 20

In a civil case, state law governs the effect of a presumption regarding a claim or defense for which state law supplies the rule of decision.

Front 21

In federal court, can a presumption ever shift the burden of persuasion as opposed to the burden of production?

Back 21

Yes, for 2 reasons: (1) expressly through federal statute, and (2) through a civil case where the state law supplies the rule of decision.

Front 22

What are the presumption facts for the following basic facts?

(1) letter properly addressed and mailed

(2) absence for 7 years without tidings

(3) goods delivered in good condition by bailor to bailee but damaged when returned

(4) death consistent w/ suicide and accident

Back 22

(1) letter received by addressee

(2) absentee is deceased

(3) bailee negligent

(4) death was an accident, not suicide

Front 23

Counter evidence of either the ________ or ________ can negate a presumed fact

Back 23

basic fact OR presumed fact