2 Judicial Notice Judicial Notice is a substitute for evidence Matters judicially noticed are normally binding on finder of fact and preclude opponent from offering evidence disputing the noticed factMandatory notice – court required to notice such factsPermissive notice – court must notice such facts if proper notice and procedures followed
4 Judicial Notice (cont.) FRE 201(a) applies to adjudicative facts as opposed to legislative factsLegislative facts are commonly understood facts such as:People are angry about the economyThe SF Giants are wildly popular in NorcalFacts in change of venue in Mehserle case (riots; storming of courthouse; graffiti; political response)
5 Judicial Notice (cont.) FRE 201(a) applies only to adjudicative facts:Facts one would otherwise be expected to prove in the actionFacts that go toward proving an elementE.g. mail fraud case – evidence that item mailed from Chicago to San Francisco – court may take judicial notice that Chicago is in Illinois and San Francisco is in California and that they are two different states
6 Judicial Notice (cont.) FRE 201(b) kinds of facts1) generally known within the territorial jurisdiction of the courte.g. the Golden Gate Bridge is between Marin and San Francisco Counties2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questionede.g. July 7, 1959, fell on a Monday
7 Judicial Notice (cont.) FRE 201(c) – when discretionaryA court may take judicial notice, whether requested or notIf the facts fall within subsection (b)
8 Judicial Notice (cont.) FRE 201(d) – when mandatoryThe court shall take judicial notice if requested by a party and supplied with necessary informationCourt, if requested will examine information proffered in support of request and see if it falls within subsection (b); if so, the must take judicial notice of the facts
9 Judicial Notice (cont.) FRE 201(d) – when mandatoryThe court may refuse to take notice only if:1) the fact is subject to reasonable dispute; or2) the fact is neither generally known within the territorial jurisdiction of the court nor readily verifiable from reliable sources
10 Judicial Notice (cont.) FRE 201(e) – opportunity to be heardLimited right in that it permits court to take judicial notice of a fact absent prior notification and grant opportunity to be heard afterwards.
11 Judicial Notice (cont.) FRE 201(f) – time of taking of judicial noticeIt may be taken at any stage of the proceedingEven on appeal
12 Judicial Notice (cont.) FRE 201(g) – instructing the juryIn a civil action: 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.
13 Judicial Notice (cont.) Evid. Code § 451:mandatory judicial noticeDecisional, constitutional, & statutory law of this state and of the United StatesState and Federal regulationsRules of Professional Responsibility and Rules of CourtRules of pleading, practice and procedure (Rules of U.S. Supreme Court, Fed Rules of Civil & Criminal Procedure, Court of Claims, Bankruptcy Court , etc)The true signification of all English words and phrases and all legal expressionsFacts and propositions of generalized knowledge so universally known that they cannot be reasonable disputed
14 Judicial Notice (cont.) Evid. Code § 452: permissive judicial noticeSimilar list to § 451 – some additionsLaws of sister statesLegislative actsRecords of courts – U.S., Cal., sister statesLaws of foreign nationsFacts of common knowledge of territoryFacts not reasonably subject to dispute that may be immediately and accurately confirmed
15 Judicial Notice (cont.) Evid. Code § 453: converting permissive to mandatory judicial noticeA matter within § 452Adverse party given sufficient noticeFurnish the court with sufficient information to take judicial notice of the matter
16 Judicial Notice (cont.) Evid. Code § 454: information that may be used in taking judicial noticeAny source of pertinent information, including the advice of persons learned on the subject matter, whether or not furnished by a partyExclusionary rules of evidence do not apply, except for § 352 and the rules of privilegeWhere the subject is the law of a foreign nation, advice of learned persons may be in writing
17 Judicial Notice (cont.) Evid. Code § 455: opportunity to present information in open courtParties get reasonable opportunity to be heard in open court before the jury is instructed or before the matter is submitted for decision by courtIf court resorts to information not received in open court, such information shall be made a part of the record and parties shall have opportunity to be heard before notice is taken
18 Judicial Notice (cont.) Evid. Code § 457: instructing the juryCourt may upon request instruct the jury to accept as a fact the matter so noticedEvid. Code § 459: these rules apply to a reviewing court on appeal
19 StipulationsA stipulation is an offer to admit a fact or a set of factsAs an offer it can be rejected by a party or by the Court
20 StipulationsIf accepted, a stipulation is binding on the trier of factA stipulation to a fact does not bar further evidence relevant to that fact
21 Stipulations (cont.)A party cannot be forced to accept a stipulation if the effect would be to deprive the party’s case of its persuasiveness and forcefulness (Cal. case law rule)A plea of not guilty puts all elements in issueE.g. defense offers to stipulate to cause of death to avoid autopsy photos and pathologist testimonyE.g. defense offers to stipulate to state of mind in rape case to avoid other acts evidence (Evid.Code §1101(b) – other bad acts to prove intent, motive, plan, absence of mistake, etc.)
22 Stipulations (cont.)Stipulations are usually a tactical matter in the discretion of the trial attorneySome stipulations in criminal cases may touch on confrontation rights and may require a personal waiver by defendant
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