1. Judicial Notice and Stipulations

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 fact
Mandatory notice – court required to notice such facts
Permissive notice – court must notice such facts if proper notice and procedures followed

3. Judicial Notice (cont.)
FRE 201 – contains 7 subsections

4. Judicial Notice (cont.)
FRE 201(a) applies to adjudicative facts as opposed to legislative facts
Legislative facts are commonly understood facts such as:
People are angry about the economy
The SF Giants are wildly popular in Norcal
Facts 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 action
Facts that go toward proving an element
E.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 facts
1) generally known within the territorial jurisdiction of the court
e.g. the Golden Gate Bridge is between Marin and San Francisco Counties
2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned
e.g. July 7, 1959, fell on a Monday

7. Judicial Notice (cont.)
FRE 201(c) – when discretionary
A court may take judicial notice, whether requested or not
If the facts fall within subsection (b)

8. Judicial Notice (cont.)
FRE 201(d) – when mandatory
The court shall take judicial notice if requested by a party and supplied with necessary information
Court, 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 mandatory
The court may refuse to take notice only if:
1) the fact is subject to reasonable dispute; or
2) 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 heard
Limited 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 notice
It may be taken at any stage of the proceeding
Even on appeal

12. Judicial Notice (cont.)
FRE 201(g) – instructing the jury
In 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 notice
Decisional, constitutional, & statutory law of this state and of the United States
State and Federal regulations
Rules of Professional Responsibility and Rules of Court
Rules 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 expressions
Facts and propositions of generalized knowledge so universally known that they cannot be reasonable disputed

14. Judicial Notice (cont.)
Evid. Code § 452: permissive judicial notice
Similar list to § 451 – some additions
Laws of sister states
Legislative acts
Records of courts – U.S., Cal., sister states
Laws of foreign nations
Facts of common knowledge of territory
Facts not reasonably subject to dispute that may be immediately and accurately confirmed

15. Judicial Notice (cont.)
Evid. Code § 453: converting permissive to mandatory judicial notice
A matter within § 452
Adverse party given sufficient notice
Furnish 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 notice
Any source of pertinent information, including the advice of persons learned on the subject matter, whether or not furnished by a party
Exclusionary rules of evidence do not apply, except for § 352 and the rules of privilege
Where 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 court
Parties get reasonable opportunity to be heard in open court before the jury is instructed or before the matter is submitted for decision by court
If 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 jury
Court may upon request instruct the jury to accept as a fact the matter so noticed
Evid. Code § 459: these rules apply to a reviewing court on appeal

19. Stipulations
A stipulation is an offer to admit a fact or a set of facts
As an offer it can be rejected by a party or by the Court

20. Stipulations
If accepted, a stipulation is binding on the trier of fact
A 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 issue
E.g. defense offers to stipulate to cause of death to avoid autopsy photos and pathologist testimony
E.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 attorney
Some stipulations in criminal cases may touch on confrontation rights and may require a personal waiver by defendant