FRE 201 Judicial Notice

1
FRE 201 Judicial Notice

• Applies only to judicial notice of adjudicative
  facts, that is, facts which are not subject to
  reasonable dispute in that they are either
• Generally known within the jurisdiction (e.g.,
  who is the Mayor of Houston) or
• Capable of accurate and ready determination by
  resort to sources whose accuracy cannot be
  questioned. (E.g., reference to a calendar for
  the day of the week of a particular date).

2

• Court can always take judicial notice on a
  discretionary basis.
• Court has to take judicial notice if requested by
  a party and supplied with the necessary
  information.
• Party contesting has right to a hearing, but it
  can occur after judicial notice is taken.
• Judicial notice can be taken at any stage of the
  proceeding.
• Theoretically, can be applied at appellate stage.
• Careful of this, though. See Tran v. Fiorenza,
  934 S.W.2d 740 (Tex. App. - Houston 1st Dist.
  1996). Court of appeals will not usually take
  judicial notice of facts that were not available
  to the trial court in reviewing trial courts
  actions.
• The jury can be instructed on matters judicially
  noticed.
• If a criminal matter, jury can only be instructed
  it can infer, but is not required to accept
  judicially noticed adjudicative fact.

3

• Shahar v. Bowers, 11th Cir. 1997. Female atty
  sues Ga. AG for withdrawing employment offer when
  he learned she was homosexual, principally under
  theory of denial of equal protection under law.
  Summary judgment for the AG. On appeal,
  plaintiff asks court of appeals to take judicial
  notice of fact that AG admitted he had
  extramarital affair, as widely reported in news
  media. Denied.
• Judicial notice is instrument rarely used when it
  would be a waste of time to take evidence on the
  subject.
• Taking judicial notice of fact from what was in
  the newspaper is not something easily and
  irrefutably confirmed by reference to an
  unimpeachable source.

4

• Common knowledge in community. Smith v. Hustler,
  Inc., W.D. La. 1981. Okay to take judicial
  notice of fact that a dammed river had not been a
  navigable waterway for many years, thus
  depriving the court of admiralty jurisdiction.
• Refusal to take judicial notice. Eain v. Wilkes,
  7th Cir. 1981. Court refused to take judicial
  notice that Israel routinely tortures prisoners.
• Judicial notice of publicly reported events. US
  v. Baker, 9th Cir. 1981. Court refused to take
  judicial notice of a particular persons
  knowledge of issuance of an injunction solely by
  virtue of its widespread publicity. Court
  contrasted, however, case in which proponent
  proved broad neighborhood knowledge of
  publicity, from which the awareness of the
  defendant could be inferred.

5

• Legislative Facts. US v. Hernandez-Fundora, 2d
  Cir. 1995. Def. charged with assault within the
  special maritime and territorial jurisdiction of
  the US. Court took judicial notice that place
  of assault was within the special maritime and
  territorial jurisdiction of the US and instructed
  the jury that, if it found the assault occurred
  at the federal penitentiary, the govt had met
  the jurisdictional element of the case.
• Problem was failure to instruct jury it could,
  but did not have to infer conclusiveness of fact.
  FRE 201(g).
• Court distinguished between adjudicative and
  legislative facts. This was a fact about the
  courts jurisdiction, not really an adjudicative
  fact. Therefore, the procedural protections of
  FRE 201(g) did not apply.

6

• What is a legislative fact? Court held that
  geographic facts that establish jurisdiction are
  legislative, not adjudicative facts.
• Advisory Committee stated that adjudicative facts
  were simply the facts of the particular case,
  while legislative facts, have relevance to legal
  reasoning and the lawmaking process.
• Note that Hernandez-Fundora may not be good law,
  in its conclusion that geography constitutes a
  legislative fact. See US v. Bello, 194 F.3d
  18 (1st Cir. 1999).

7
Burdens/Presumptions

• A presumption is a rule of law that once a base
  fact A is established, fact B, the presumed fact,
  must be taken as established, at least if there
  is no evidence of non-B. E.g., presumption of
  mailing. Evidence that item was posted in the US
  mail raises statutory presumption of receipt.
• FRE 301 In civil actions, presumption shifts
  burden of going forward to other side, but does
  not shift burden of proof.
• FRE 302 In civil cases, effect of presumption
  concerning fact which is an element of a claim or
  defense as to which state law applies is
  determined in accordance with state law.

8

• Two types of burdens
• Burden of proof, or burden of persuasion. Means
  one party has the burden to prove his case - the
  other side prevails if the burden is not met.
• Burden of going forward with the evidence. Means
  the party on whom a presumption is cast has the
  burden of meeting the presumption at the risk
  that the presumption will otherwise be deemed
  conclusively proved.

9

• Two types of presumptions
• Mandatory presumption, in which the jury is
  informed it must presume the fact and
• Permissive presumption, in which the jury is
  informed it may infer the fact.

10

• McNulty v. Cusack, Fl. 1958. Rear-end collision
  case. Court adopts rule that unrebutted evid. of
  rear-end collision creates presumption of
  negligence, entitling plaintiff to a directed
  verdict.
• Is this a mandatory or permissive presumption?
• Did this shift the burden of proof or merely put
  the burden of going forward with evidence on the
  defendant?

11

• Hinds v. John Hancock Mut. Life Ins. Co., Maine
  1959. Life insurance case, plaintiff wants
  double indemnity, co. defends on basis of
  suicide.
• Thayer theory, or bursting bubble approach to
  presumption - means that presumption has no
  evidentiary value whatsoever once rebutted. In
  this instance, presumption of non-suicide
  prevails unless ins. co. offers some proof that
  suicide occurred.
• Modified Thayerian rule - means presumption does
  not disappear unless there is substantial
  evidence offered by the opponent to rebut the
  fact, on proof of which the presumption
  disappears. In this case, presumption of
  non-suicide prevails unless ins. co. offers
  substantial proof that suicide occurred.
• Third approach - presumption must be found until
  and unless evidence of nonexistence makes
  nonexistence at least as probable as existence.
  When controverting evidence reaches that level,
  presumption still carries evidentiary weight, but
  jury issue presented. (Court adopts this
  approach).

12

• Fourth approach - presumed fact must be found
  unless jury finds non-existence is more probable
  than existence. Shifts the burden of proof on
  the issue. (Maine later adopted this approach).
• Jury is generally instructed as follows Answer
  "Yes" or "No" to all questions unless otherwise
  instructed. A "Yes" answer must be based on a
  preponderance of the evidence. If you do not find
  that a preponderance of the evidence supports a
  "Yes" answer, then answer "No." This puts the
  burden of proof on the plaintiff.
• Fourth approach merely changes the way the issue
  was submitted.
• In the usual case where plaintiff has burden of
  proof Do you find, from a preponderance of the
  evidence, that Hinds died of accidental causes?
  to
• Case where burden shifted Do you find, from a
  preponderance of the evidence, that Hinds
  committed suicide?

13

• Prob. Set A. Plaintiff testifies she wrote and
  mailed a letter, raising presumption of receipt.
  Def. obtains evidence that letter not received.
• If Thayerian, bursting bubble approach adopted,
  the court must evaluate whether plaintiffs
  testimony justifies a more likely than not
  inference of receipt, weighing all the evidence.
  If not, directed verdict for defendant.
• If modified Thayerian approach followed,
  defendant must produce substantial evidence of
  non-receipt or dir. vd. for plaintiff.
• If third approach followed, presumption would
  allow plaintiff to get to the jury, but plaintiff
  would retain burden of proof.
• If fourth approach followed, defendant would have
  both burden of going forward with evidence and
  proof or persuasion.

14

• Criminal cases. Conclusive presumptions are
  unconstitutional. Sandstrom v. Montana US 1979.

15

• The Best Evidence Rule really a misnomer. No
  rule stating what is best evidence to prove a
  fact. However, sometimes originals required.
• FRE 1002. To prove contents of a writing or
  photograph, the original is required, except as
  otherwise provided by the rules.
• FRE 1003. Duplicates admissible the same as
  originals unless genuine question as to
  authenticity.
• Original lost, destroyed, or otherwise
  unavailable at hearing or trial - other evidence
  of contents.
• If original lost or destroyed, other evidence
  admissible, unless proponent lost or destroyed in
  bad faith FRE 1004(1)
• If original cannot be obtained by subpoena, other
  evid of contents admissible. FRE 1004(2)
• If opponent has possession of original, put on
  notice for need, and does not produce at hearing,
  can introduce other evid of contents. FRE
  1004(3)
• If contents do not relate closely to a
  controlling issue, other evid of contents
  admissible (circumstantial evid rule). FRE
  1004(4)

16

• Public Records - Admissible by certified copy.
  FRE 1005
• FRE 1006. Summaries. Admissible if
• Records voluminous and
• Originals made available to opponent.
• Judge can require originals to be produced at
  trial.
• FRE 1007. Can prove contents of writing thru
  testimony of opponent.
• FRE 1008. Court makes preliminary determination
  of admissibility. However, jury determination
  when issue raised as to
• Existence of original
• Whether document produced at trial is the
  original or
• Whether other evid of contents is true.

17

• US v. Gerhart. 8th Cir. 1976. Gerhart convicted
  of making material false statement on loan
  application. As proof of assets, Gerhart used a
  check supposedly payable to him, but with amount
  changed from 4822.40 to 54822.40. Iowa Dept
  Public Safety misplaced the check. At trial, the
  govt produced a copy of the falsified check.
  Objection under best evidence rule.
• Are the contents of the check in issue, or is the
  issue collateral?
• Material. The check is the misstatement on which
  the charge is based.
• FRE 104(a) only requires for authentication evid
  sufficient for a finding. Had that.
• FRE 902(a) only requires a showing that document
  is what it purports to be. Had that.
• Duplicate admissible because no showing that bad
  faith used in misplacement of original. FRE
  1004(1).

18

• Authentication. FRE 901(a). Authentication
  sufficient if item proved by evidence sufficient
  to support a finding that the matter in question
  is what its proponent claims. Exemplar means of
  authentication
• Testimony of witness
• Nonexpert opinion on handwriting
• Comparison by jury or expert
• Distinctive characteristics
• Voice identification

19

• Four steps to getting a document (or other
  tangible item) admitted (Sometimes referred to as
  laying the proper foundation)
• Mark it.
• Have witness Identify it.
• Have witness Authenticate it.
• Offer it.
• Photographs
• Same as above, but generally must also have
  witness prove that the photograph truly and
  accurately depicts whatever is being portrayed.
• However, even with photographs where no witness
  can specifically state the above, such as
  unmonitored surveillance photos, sufficient if
  witness with personal knowledge explains
• how and when the photographs were taken
• how they were retrieved, and
• chain of custody

20

• US v. Carriger. 6th Cir. 1979. Carriger
  convicted of tax evasion. Govt used evid of
  Carrigers net worth for subject tax year to show
  understatement of income. Carriger offered in
  defense evid his brother paid him 24k in cash,
  and two purported notes from years earlier, which
  purported to show that brother owed Carriger the
  24k. Two witnesses wanted to testify they had
  seen brother sign things hundreds of times and
  the signature on the notes appeared to be of the
  brother. Trial court excludes on basis of lack
  of foundation.
• Were the notes relevant?
• Yes. Could show non-taxable source of income to
  account for increased net worth.
• Were the documents properly authenticated so as
  to require admission?
• Yes. Under rule 901(a), authentication satisfied
  by evidence sufficient to support a finding that
  the document is what the proponent claims.
  Testimony of witnesses was sufficient.
• The notes were probably also self-authenticating
  as commercial paper, under UCC. FRE 902(9).
  UCC provides that mere production of note is
  prima facie evidence of its validity and the
  holders right to recover on it.

21

• Chain of custody proof. US v. Coffman. 10th
  Cir. 1981. Defs convicted poss. LSD. Appeal on
  basis that paper blotters with LSD impregnations
  were tested for fingerprints before being tested
  for LSD, thus breaking chain of custody, and that
  there was a real possibility of adulteration of
  evid while in custody of police lab.
• Strict chain of custody proof not required.
  Judge finds no realistic probability of
  adulteration or misidentification.
• Minor breaks in chain of custody only affect
  weight, not admissibility.

22

• US v. Thomas. Air Force Ct Military Review 1983.
  Conviction cocaine. Appeal on basis of
  ineffective assistance of counsel for failure to
  object to admission of drug paraphernalia,
  consisting of small brown paper bag containing
  baggies and straws with cocaine residue and other
  items. Only testimony of identification was
  officers statement that the bag introduced at
  trial looked like what was seized from
  defendant, based on its general appearance.
• Could be identified solely by general appearance
  and pattern or association together, under FRE
  901(b)(4). Affirmed.
• Does this seem fair?

23

• Day in the life videos. Pittsburgh Corning
  Corp. v. Walters, 1 S.W.3d 759 (Tx. App. - CC
  1999). Asbestosis case. Victim dead by time of
  trial. Plaintiffs introduce 4 ½ minute video
  showing victim in last days, with sound. Jury
  finds for plaintiff, awards 8.8 million. Def.
  appeals, contending that audio should not have
  been admitted as hearsay.
• Court holds admissible as statement of
  then-existing state of mind. TRE 803(3)
• Relevance or authenticity not challenged. Should
  it have been? Would that have prevailed?

24

• Defense video surveillance tapes. Are their
  existence and/or contents discoverable? Are they
  ever excludable work product?
• Gibson v. National RR Passenger Corp., 170 FRE
  408 (E.D. Pa. 1997). Minor burned on Amtraks
  property, sues under attractive nuisance
  doctrine. Seeks discovery of surveillance
  videotapes.
• Court holds that Amtrak need not produce
  surveillance videotapes because they are work
  product, unless def decides to use at trial.
• Whether to be used or not, defendant must
  disclose existence, but not contents, of video,
  prior to deposing the plaintiff.
• However, if decides to use at trial, def not
  required to produce videos until after
  plaintiffs depo taken, to preserve impeachment
  value.

25

• Smith v. Diamond Offshore Drilling, Inc., 168 FRD
  582 Galveston 1996. Judge Sam Kent. Plaintiff
  injured when cab of crane he was operating came
  loose from pedestal mount. (Not stated in
  opinion, but with an offshore rig, this usually
  means a fall 100' or so to the sea.) Plaintiff
  seeks discovery of surveillance videotapes taken
  of him. Defendant resists under work product
  doctrine.
• These are clearly work product, because they were
  prepared in anticipation of litigation or
  preparation of defenses. FRCP 26(b)(3).
• However, substantial need doctrine applies to
  this type of work product.
• To preserve impeachment value, defendant only
  required to disclose existence of video prior to
  deposing the plaintiff.
• However, in this type of case, video is not only
  valuable for impeachment, but may be substantive
  evidence corroborating injury, which cannot be
  duplicated by the plaintiff without a claim of
  fabrication. Therefore, defendant is required to
  produce it, 30 days after plaintiff deposed,
  whether or not the video will be used at trial.

26
Defendants motion in limine. Which of the
following should be granted?

• PLAINTIFF, opposing counsel, and all of their
  witnesses should be restrained from making any
  reference that this motion has been filed,
  granted, or denied and from stating that the
  court has prevented, or that this DEFENDANT has
  attempted to prevent opposing counsel from
  mentioning or discussing certain matters before
  the jury.

27

• PLAINTIFF, opposing counsel, and all of their
  witnesses should be restrained from making any
  reference that this DEFENDANT may or may not be
  protected in any manner by professional liability
  insurance, or from posing any question to the
  jury panel or any member thereof if he or she
  would make an award "regardless of who pays" or
  the like, as such comments could only be
  prejudicial to the defendant as they clearly
  inject insurance into the proceedings such
  evidence would be highly prejudicial and
  irrelevant to the material issues of this case
  and liability insurance is specifically not
  admissible in a personal injury case. Rule 411,
  Tex. R. Civ. Evid. Griffith v. Castell, 313
  S.W.2d 149 (Tex. Civ. App.--Houston 1958, writ
  ref'd n.r.e.) Hurley v. McMillan, 268 S.W.2d 229
  (Tex. Civ. App.--Galveston 1954, writ ref'd
  n.r.e.).

28

• PLAINTIFF, opposing counsel, and all of their
  witnesses should be restrained from making any
  reference to any pretrial matter in this cause,
  including but not limited to, occurrences during
  pre-trial hearings, the outcome of any hearings,
  the conduct of counsel or witnesses, and the
  comments or rulings of the court, for the reasons
  that such matters are wholly irrelevant to the
  jury's fact-finding mission, and would only be
  injected to attempt to prejudice the jury
  improperly against DEFENDANT. The reference to
  same would also tend to confuse the jurors as to
  their role.

29

• PLAINTIFF, opposing counsel, and all of their
  witnesses should be restrained from making any
  reference to any prior claims, grievances,
  investigations, citations, reprimands, or
  lawsuits against DEFENDANT, by any public or
  private agency, unless it can first be shown,
  outside the presence of the jury, that the acts
  or omissions giving rise to such matters were
  (a) proven at trial and (b) so similar and
  repetitive to the facts of the case at hand that
  they prove that DEFENDANT acted in accordance
  with a particular habit in that regard. Rule
  404(b), Tex. R. Civ. Evid. ("Evidence of other
  wrongs or acts is not admissible to prove the
  character of a person in order to show that he
  acted in conformity therewith....). See also
  First Southwest Lloyd's Ins. Co. v. MacDowell,769
  S.W.2d 954, 956 (Tex. App.- Texarkana 1989, writ
  denied) Tex. Farm Bur. Mut. Ins. Co. v. Baker,
  596 S.W.2d 639, 643 (Tex. Civ. App. - Tyler 1980,
  writ ref'd n.r.e.). The admission of any other
  claims, lawsuits, grievances, investigations, or
  the like would not reasonably be calculated to be
  probative of any issue in dispute and would
  unfairly prejudice DEFENDANT.

30

• PLAINTIFF, opposing counsel, and all of their
  witnesses should be restrained from making any
  reference that this defendant asserted claims of
  privilege during discovery. Claims of privilege
  are not admissible as evidence. See Tex. R. Civ.
  Evid. 513(a) and (b).
• PLAINTIFF, opposing counsel, and all of their
  witnesses should be restrained from making any
  reference to anticipated testimony, ex parte
  statements, or reports of any witness who is
  absent, unavailable, or otherwise not called to
  testify at trial of this cause.

31

• PLAINTIFF, opposing counsel, and all of their
  witnesses should be restrained from offering any
  photographs which depict the plaintiff's alleged
  injuries. The probative value, of such
  photographs would be substantially outweighed by
  the danger of unfair prejudice, confusion of the
  issues, misleading the jury, or by consideration
  of undue delay, and needless presentation of
  cumulative evidence. Tex. R. Evid. 403. Such
  photographs are merely calculated to arouse the
  sympathy, prejudice, or passion of the jury, and
  do not serve to illustrate the disputed issues or
  aid the jury in understanding the case.

32

• PLAINTIFF, opposing counsel, and all of their
  witnesses should be restrained from offering any
  videotape excerpts depicting the plaintiff's
  alleged injuries, specifically the colostomy. The
  probative value, of such testimony would be
  substantially outweighed by the danger of unfair
  prejudice, confusion of the issues, misleading
  the jury, or by consideration of undue delay, and
  needless presentation of cumulative evidence.
  Tex. R. Evid. 403. The use of the videotape
  excerpts is merely calculated to arouse the
  sympathy, prejudice, or passion of the jury, and
  do not serve to illustrate the disputed issues or
  aid the jury in understanding the case.