Deck 4: Substitutes for Admission of Evidence

Question 1

When the burden of proof has been properly allocated, and the prosecution has the burden of proving the case, why should a court take judicial notice of adjudicative facts without the necessity of introducing evidence to actually prove the facts?

Answer 1

Judicial notice is a legal doctrine that allows a court to recognize and accept the existence of certain facts without requiring formal presentation of evidence. When the burden of proof is on the prosecution in a criminal case, or on the plaintiff in a civil case, the court may still take judicial notice of adjudicative facts for several reasons:

1. **Public Knowledge**: Some facts are so universally known within the jurisdiction that requiring proof would be unnecessary and redundant. For example, the court might take judicial notice of the fact that the sun rises in the east and sets in the west, or that July 4th is Independence Day in the United States.

2. **Undisputed Accuracy**: Certain facts can be verified by sources of indisputable accuracy. This includes information such as dates on the calendar, laws in effect, and distances between places that can be confirmed by maps or official records.

3. **Efficiency**: Taking judicial notice of certain facts can greatly streamline court proceedings by avoiding the need for parties to present evidence on issues that are not genuinely disputed. This helps to focus the trial on the contested issues that are central to the case's outcome.

4. **Fairness**: It would be unfair to require one party to prove facts that are not subject to reasonable dispute. Forcing the prosecution to prove every minute detail, even those that are common knowledge or easily verifiable, could lead to an unnecessary waste of resources and time.

5. **Legal Precedent**: Courts often take judicial notice of their own records and prior decisions, as well as the decisions of higher courts within the same jurisdiction. This is based on the principle that the legal system should be consistent and that courts should not relitigate settled matters.

6. **Statutory Provisions**: Many jurisdictions have statutes or rules of evidence that explicitly allow courts to take judicial notice of certain facts. For example, Rule 201 of the Federal Rules of Evidence in the United States provides a framework for when and how a court may take judicial notice of an adjudicative fact.

It is important to note that while courts can take judicial notice of certain facts, the opposing party has the right to challenge the notice if they believe the fact is not one that should be judicially noticed. In such cases, the court may require evidence to be presented to establish the fact in question. Additionally, even when a court takes judicial notice of a fact, it must instruct the jury that they may, but are not required to, accept as conclusive any judicially noticed fact.

Question 2

Define the term judicial notice and give some examples.

Answer 2

Judicial notice is a rule in the law of evidence that allows a fact to be introduced into evidence if it is so well known or universally accepted that it cannot reasonably be doubted. This means that the court can accept certain facts as true without requiring formal proof.

Some examples of facts that may be subject to judicial notice include:

1. Natural laws and scientific principles, such as the fact that the earth revolves around the sun.
2. Geographic locations and boundaries, such as the location of major cities or the boundaries of states.
3. Historical events, such as the date of a significant historical event or the outcome of a well-known war.
4. Official acts of the executive, legislative, and judicial branches of government, such as the date a law was enacted or the text of a public document.

In these cases, the court can take judicial notice of these facts without the need for formal proof, as they are considered to be common knowledge or easily verifiable. However, it is important to note that not all facts are subject to judicial notice, and the decision to take judicial notice of a fact is ultimately up to the discretion of the judge.

Question 3

There are two categories of judicial notice: judicial notice of facts and judicial notice of laws. What are the limits placed upon the kinds of facts that may be judicially noticed?

Answer 3

Judicial notice is a rule in the law of evidence that allows a fact to be introduced into evidence if the truth of that fact is so notorious or well known that it cannot reasonably be doubted. This can be a significant time-saver in trials as it avoids the need for parties to prove facts that are already commonly known. However, there are limits to the kinds of facts that courts can judicially notice.

The limits placed upon the kinds of facts that may be judicially noticed are generally governed by legal standards and rules of evidence, such as the Federal Rules of Evidence in the United States or similar provisions in other jurisdictions. Here are some of the key limitations:

1. **Common Knowledge**: The fact must be one not subject to reasonable dispute because it is either (1) generally known within the trial court’s territorial jurisdiction, or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

2. **Not Subject to Reasonable Dispute**: The fact must be so universally known that it cannot be reasonably questioned, or it must be easily verifiable from a reliable source.

3. **Public Records and Official Documents**: Courts can take judicial notice of governmental records and official documents, but there are limits to this, especially regarding the truth of the factual findings reported in those documents.

4. **Accuracy and Reliability**: The source of the fact must be known for its accuracy and reliability. For instance, courts may refer to almanacs, dictionaries, and geography texts for certain facts.

5. **Not Subject to Legal Debate**: The fact must not be a matter of legal debate. If the fact involves an area of active legal discussion or is central to the case's outcome, it may not be appropriate for judicial notice.

6. **Procedural Safeguards**: Some jurisdictions require that parties be given notice when the court intends to take judicial notice of a fact, and they must be given an opportunity to be heard on the matter if they object.

7. **Scope of the Case**: The fact must be relevant to the issues in the case. Irrelevant facts, even if notorious or easily ascertainable, are not appropriate for judicial notice.

8. **Discretion of the Court**: Even if a fact meets the criteria for judicial notice, courts often have discretion as to whether or not to actually take notice of the fact.

9. **Appealability**: In some cases, a court's decision to take judicial notice of a fact can be reviewed on appeal, especially if it had a significant impact on the outcome of the case.

10. **Not for Adjudicative Facts**: Judicial notice is typically not used for adjudicative facts (those that directly relate to the parties in the case and their activities), but rather for background facts that help to understand the context of the case.

It's important to note that the specific rules and limitations on judicial notice can vary by jurisdiction, and the above points are general guidelines. Legal professionals must consult the rules of evidence applicable in their specific court to understand the precise scope and limits of judicial notice in their cases.

Question 4

Generally, a court may take judicial notice of matters of general knowledge within the jurisdiction. In such instances, is it necessary that the matter be familiar to the majority of mankind? To the judge? Explain.

Question 5

What are some examples of situations in which a court has taken judicial notice of historical facts? Explain.

Question 6

May a trial court take judicial notice of the fact that Chicago is approximately 790 miles from New York?

Question 7

Are there any cases that approve taking judicial notice of the scientific validity of blood-grouping tests? DNA test results? Discuss. Give other examples of judicial notice of scientific facts. What is the test for admission of novel scientific evidence?

Question 8

May a court take judicial notice of the meaning of certain words or symbols? Give some examples.

Question 9

What is the rationale for authorizing a trial court to take judicial notice of certain laws?

Question 10

What are some examples of situations in which a court may take judicial notice of laws?

Question 11

Must a court take judicial notice of the laws of the United States and of the state in which it sits?

Question 12

Give some examples of situations in which a court takes judicial notice of administrative regulations.

Question 13

What process is followed in taking judicial notice and making the fact finder aware of the decision?

Question 14

Are courts more reluctant to permit the use of judicial notice in criminal cases as compared to civil cases? Give reasons for your answer.

Question 15

Define and distinguish the evidentiary concepts of presumption, inference, and stipulation.

Question 16

What is the reasoning for, and what is are the constitutional considerations that support the development and continued existence of presumptions as a substitute for evidence?

Question 17

There are two clear classes of presumptions discussed in your text. Name, define, and give one example of each.

Question 18

Because every defendant is presumed innocent until proven guilty, does a trial judge have to give a jury instruction explaining this presumption? Explain.

Question 19

There is a rule of evidence that states that every person is presumed to be sane. What is the legal effect of this presumption? Is this presumption rebuttable or conclusive? Explain.

Question 20

If a state places the burden of proving insanity on a defendant, because the state may presume all persons are sane, why does this not result in a defendant having to unconstitutionally disprove an element of the crime charged?

Question 21

Some courts have given the instruction that the person accused of crime is presumed to have intended the ordinary consequences of his or her voluntary acts. What has been the opinion of the Supreme Court of the United States concerning this type of instruction?

Question 22

The parties involved in a criminal case may stipulate the existence or nonexistence of a fact. Does this exclude evidence regarding the truth or falsity of the matter stipulated? Give an example of a stipulation.

Question 23

In a criminal trial, the jury members, in determining guilt or innocence, may consider:

A) only evidence from sworn witnesses, authenticated documents, and real evidence.
B) evidence introduced by the parties and facts judicially noticed by the judge.
C) evidence introduced by the parties, but not stipulations of the parties announced to the jury.
D) only actual evidence that has been introduced, but may not consider substitutes for evidence.

Question 24

Judicial notice, as a substitute for actual evidence, authorizes a judge to:

A) accept appropriate facts as being true, but allow contradictory evidence to dispute the fact that the judge accepted as being true.
B) tell the jury which facts the judge believes to be true so that the jury will not have to deliberate over those facts.
C) accept certain facts as being true so long as both parties in a criminal case stipulate to the truthfulness of those facts.
D) accept appropriate facts as being true without requiring one of the parties to offer formal proof of such facts.

Question 25

A fact may be judicially noticed:

A) by the trial court judge.
B) by the judge, defense attorney, or prosecutor.
C) only if other evidence is introduced to corroborate the judicially noticed fact.
D) only if it is a geographical fact.

Question 26

In federal courts and generally in state courts, judicial notice may be taken:

A) only on motion of counsel for the defendant or the prosecution.
B) only if the judge has sufficient personal knowledge without referring to other sources.
C) provided all parties to the action agree.
D) upon motion of counsel for a party or by the judge without motion.

Question 27

Generally, judicial notice may be taken of facts of common knowledge. To be considered a fact of common knowledge:

A) everyone must be aware of the fact, such as the fact that Washington, DC, is the capital of the United States.
B) the fact must be characterized as national knowledge, as opposed to local knowledge.
C) all that is necessary is that a matter be familiar to the majority of mankind or to those persons familiar with a particular matter in question.
D) it must relate to events from history and not relate to current events.

Question 28

Concerning geography and location, a trial judge may take judicial notice:

A) of the fact that a particular location described by witnesses was within the jurisdiction of her court where local persons familiar with the area would generally agree.
B) of the fact when two people first met at the corner of two described streets in Los Angeles, California, and that the two named streets intersected at right angles, when the court was sitting in Alabama.
C) that the height of a cell phone tower in her jurisdiction was 450 feet.
D) that drug trafficking generally occurred in an obscure alley within the jurisdiction of her court.

Question 29

In some situations, it may be proper to take judicial notice of the existence of historical events and historical facts. For example, judicial notice may be taken:

A) of local historical facts and local unrecorded history.
B) that a state of war existed in Vietnam in 1970.
C) of national history, but only if the judge is personally aware of all the details of the history, without reference to documents.
D) of historical facts of which only the judge and no one else is aware.

Question 30

An example of a fact relating to nature and science that may be judicially noticed is:

A) the scientific validity of blood-grouping tests resulting in exclusion of paternity.
B) that the term "pig" is a derivative name for the police.
C) the unquestioned scientific validity and reliability of the polygraph test.
D) the reliability and universal scientific acceptance of voice identification analysis as a way of identifying unknown speakers.

Question 31

In some instances, the judge may take judicial notice of words, abbreviations, and symbols. In applying evidence rules and statutes, some general principles have been developed. Among these are:

A) without a statute, a judge may not take judicial notice of the meaning of words.
B) a judge may not take judicial notice of the meaning of common abbreviations such as abbreviations of the days of the week and the months, because evidence can easily be introduced to show such facts.
C) ordinarily a judge may take judicial notice of infrequently used slang words or expressions even if these are not in the dictionary.
D) judicial notice will not be taken of the meaning of abbreviations, symbols, or initials where such meaning is not generally known or where they have no meaning without explanation.

Question 32

If an issue involving a state statute arises in federal court, the federal judge sitting in that state:

A) may take judicial notice of the law of that state without requiring a witness to testify concerning the law.
B) cannot take judicial notice of the laws of the state.
C) must personally look up the law and then can take judicial notice.
D) may not take judicial notice of state laws but may take judicial notice of municipal ordinances and federal laws.

Question 33

Within the United States, state and federal courts generally may not take judicial notice of:

A) federal laws.
B) laws of sister states.
C) the laws of foreign countries.
D) the law of the forum.

Question 34

States that have adopted the Uniform Judicial Notice of Foreign Law Act are required by the provisions of the law to have their courts judicially notice:

A) Canadian law.
B) the common law of sister states.
C) the statutes of sister states.
D) both b and c

Question 35

Judicial notice may be taken of municipal ordinances:

A) in all courts in the state in which the city adopting the ordinance is located.
B) only if the requirements for the adoption of an ordinance are met.
C) only when the case is tried in municipal court and a witness testifies that the ordinance is proper.
D) even if the requirements for adoption of the ordinance have not been met, if the ordinance has been published.

Question 36

When a judge has taken judicial notice of a fact:

A) the opposing counsel can still introduce evidence that tends to disprove the fact judicially noticed.
B) the judge will generally prevent any party from introducing evidence that tends to dispute the fact judicially noticed.
C) the jury must accept as fact any fact that has been the proper subject of judicial notice and cannot decide the case in a manner that shows that it disregarded the fact noticed.
D) the fact is taken as established even when an appellate court later disagrees with the propriety of taking judicial notice.

Question 37

In regard to judicial notice of jurisdiction of courts, the rule is:

A) a court may not take judicial notice of the proper venue unless the question is submitted to a jury.
B) a judge cannot take judicial notice of the limits of his or her jurisdiction.
C) the fact that a city is in a certain county is not the subject of judicial notice.
D) a court may take judicial notice of the proper venue and not submit the question to a jury.

Question 38

When both parties reach an agreement concerning some aspect of the trial, including evidentiary issues over which they no longer have a disagreement, this is known as:

A) an inference.
B) a presumption.
C) a stipulation.
D) judicial notice.

Question 39

The difference between a presumption and an inference is that:

A) a presumption is an absolute requirement that the jury must follow in a criminal case while inference allows a jury to ignore the conclusion that is normally drawn with respect to an inference.
B) a presumption has a mandatory effect in criminal cases, and an inference has very little effect because its conclusion is so weak.
C) a presumption is the deduction of fact that a jury "must" draw if the first fact on which it is based is proved, but it is not required to make the deduction in a criminal case, whereas an inference has less strength and a jury has the ability to draw the deduction or to refuse to draw the deduction with respect to an inference in a criminal case.
D) A jury is required to follow an inference in a criminal case, but it has the discretion not to follow a presumption even if the preliminary fact has been proven.

Question 40

There are several reasons or explanations for the use of legal presumptions in criminal trials. One of these is:

A) to avoid a waste of time and for trial convenience.
B) to avoid embarrassing the witness.
C) to place the burden of proving guilt on the prosecution.
D) to make it easier for the defense to prove innocence.

Question 41

One commonly stated presumption approved by courts and legislatures is that "all persons are presumed to know the law." This presumption:

A) is usually considered a rebuttable presumption.
B) is founded on public policy and necessity.
C) is a presumption of fact.
D) may as a rule be rejected by the trial judge.

Question 42

Presumptions have been classified as presumptions of law and presumptions of fact. They operate in somewhat different ways. Select the listed presumption below that would be classified a presumption of law:

A) a judge has properly followed the law.
B) a defendant is assumed to have intended the natural and probable consequences of his or her act.
C) a deceased person has not committed suicide.
D) a letter properly addressed and properly stamped will reach its destination.

Question 43

A presumption of fact:

A) may usually be founded on other presumptions of fact.
B) creates its own foundation.
C) can be rebutted when contrary evidence is introduced to negate the presumption.
D) cannot be rebutted when evidence is introduced that is contrary to the presumption.

Question 44

In some cases, courts have given the instruction that possession by the defendant of recently stolen property raises an inference of guilty knowledge of the theft. Recent cases indicate that:

A) this type of instruction is generally considered to be grounds for error and the case will be reversed.
B) such instructions are generally approved if the possession is unexplained and the possession is fairly recent, even though it may seem to appear that the defendant is being forced to prove his innocence.
C) all states now reject the "recent possession and the presumption arising therefrom" doctrine since there are probably numerous explanations that are not consistent with the presumption.
D) this instruction establishes a conclusive presumption and cannot be rebutted.

Question 45

In criminal cases, when there is evidence offered by the prosecution that a defendant has taken steps to flee the crime scene, the area, or state, prosecutors often ask that a judge give a jury instruction covering the concept of flight. In determining whether a "flight instruction" is proper, the court must be careful not to reverse the burden of proof or create other errors. Such instruction:

A) has been held to be unconstitutional because the instruction creates a presumption of guilt on the accused.
B) is proper when there is evidence of flight or concealment and the evidence reasonably supports an inference that the defendant fled because of a consciousness of guilt and a desire to avoid accusation based thereon.
C) is not justified in a criminal case because this places the burden of proof on the defendant to show he or she is not guilty.
D) is justified only if evidence has been introduced to show the defendant has left the state in which the crime occurred in an effort to avoid prosecution.

Question 46

In the case of Commonwealth v. Howlett, the defendant had been accused of driving under the influence of alcohol after testing above the legal limit on a breath test machine made by Smith and Wesson. The defendant testified that he "burped" within the 20-minute required observation period prior to taking the test, which would invalidate the test results. The judge, on his own motion, took judicial notice that the particular breath test machine required a 20-minute wait prior to testing and for that reason determined that the defendant should be found not guilty because the breath test result was invalid. The judge knew about the 20-minute period because the judge had been a prosecutor and was familiar personally with that particular Smith and Wesson breath test system. The prosecution appealed the verdict in order to change the judge's decision on judicial notice for future cases heard by that judge. When the judge has taken judicial notice based on judge's personal knowledge that is not universally known in the jurisdiction, has judicial notice properly been taken? Include discussion of when it is appropriate for a judge to take judicial notice of adjudicative facts.

Question 47

In the case of State v. Odom, a prosecution for criminal solicitation of a minor over the Internet due to his discussion with a police officer posing as a 14-year-old underage female, the defendant was convicted. The trial judge allegedly took judicial notice that the defendant was over the age of majority based on his date of birth in the state's driver's license records. The judge instructed the jury that the court had taken judicial notice of the defendant's age and that such notice was not subject to dispute and the jury was required to accept it as a fact in the case. Did the reviewing court conclude that judicial notice was appropriately taken by the trial judge by virtue of reliance on the state's driver's license records? Was this conclusion affected by the judge's charge to the jury that such judicial notice was not subject to dispute by the jury? Could the taking of judicial notice, even though improper, be considered harmless error in some cases? Explain.

Question 48

In the case of State v. Smith, a common pleas court, sitting as an appellate court, determined that the trial judge took judicial notice of the type of area or the topography in which a driving-while-intoxicated arrest occurred. According to the reviewing court, why was the trial judge in error in taking judicial notice of the topographic condition of the land under the circumstances presented in this case? What was the rationale of the reviewing court in determining why judicial notice should not have been taken in this case?

Question 49

In the case of Williams v. State, the prosecution had used a presumption to help to gain a murder conviction. The evidence showed that the defendant had pointed a firearm at the deceased that discharged while in the hands of the defendant. The prosecution made use of a presumption that stated a person intends the natural and probable consequences of his voluntary and delivered activities to help obtain the conviction. The defendant appealed, contending that the use of this presumption in this murder case had the effect of shifting the burden of proof from the prosecution to the defense. The reviewing court ordered a new trial for the defendant. What was the rationale that the reviewing court used in determining that the way the presumption was handled in this case created reversible error? Explain.

Question 50

In Graham v. United States, the defendant had been convicted of killing a man named Walker. There was some contradictory evidence about whether the defendant was the shooter, but there was sufficient credible evidence to indicate that he actually was the killer. The trial court allowed the use of a jury instruction on flight from the scene of the crime because Graham left the scene of the crime quickly and indicated to the others that he could not return because the area was too "hot." The judge instructed the jury on the concept of flight following a crime and was told that it may be a circumstance that indicated consciousness of guilt, but that it did not necessarily indicate that the fleeing defendant had feelings of guilt because sometimes people leave a crime scene for different reasons. In this case was the jury instruction covering the concept of flight following a crime as an indication of consciousness of guilt properly delivered by the trial judge so that the conviction should not be disturbed on ground of an erroneous use of the presumption concerning flight?

Question 51

In State v. McClure, the defendant had been convicted of kidnapping and possession of stolen property. The property was allegedly taken in a home invasion [burglary] and was traced to the defendant when he sold the property at a pawn shop. The defendant complained that the use of the presumption or inference that the possessor of recently stolen property has knowledge that it was stolen should not have been allowed in his case. In order for the doctrine of that possession of recently stolen property to indicate knowledge that it was stolen, the government must show that the property was actually stolen, that it was found in the defendant's possession, and that the possession of the defendant was fairly recent after the unlawful taking. The theory is that when a person is found in possession of recently stolen property, the law presumes that the person is the one who had stolen the property. Did the appellate court find that the use of this presumption or inference was appropriate to help establish guilt for the defendant of possession of stolen property? Explain the reasoning of the appellate court.