Judicial Notice and Stipulations

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

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

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)

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

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

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)

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

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

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.

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

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.

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

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

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

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

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

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

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

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

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.)

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