Judicial Notice and Stipulations

Judicial Notice and Stipulations Judicial Notice and Stipulations

Judicial NoticeJudicial Notice

Judicial Notice is a substitute for evidenceJudicial Notice is a substitute for evidence

Matters judicially noticed are normally binding on Matters judicially noticed are normally binding on finder of fact and preclude opponent from finder of fact and preclude opponent from offering evidence disputing the noticed factoffering evidence disputing the noticed fact

Mandatory notice – court required to notice such Mandatory notice – court required to notice such factsfacts

Permissive notice – court must notice such facts Permissive notice – court must notice such facts if proper notice and procedures followedif proper notice and procedures followed

Judicial Notice (cont.)Judicial Notice (cont.)

FRE 201 – contains 7 subsectionsFRE 201 – contains 7 subsections


FRE 201(a) applies to adjudicative facts FRE 201(a) applies to adjudicative facts as opposed to legislative factsas opposed to legislative facts

Legislative facts are commonly understood Legislative facts are commonly understood facts such as:facts such as:– People are angry about the economyPeople are angry about the economy– The SF Giants are wildly popular in NorcalThe SF Giants are wildly popular in Norcal– Facts in change of venue in Mehserle case Facts in change of venue in Mehserle case

(riots; storming of courthouse; graffiti; political (riots; storming of courthouse; graffiti; political response)response)


FRE 201(a) applies only to adjudicative FRE 201(a) applies only to adjudicative facts: facts: – Facts one would otherwise be expected to Facts one would otherwise be expected to

prove in the actionprove in the action– Facts that go toward proving an elementFacts that go toward proving an element– E.g. mail fraud case – evidence that item E.g. mail fraud case – evidence that item

mailed from Chicago to San Francisco – court mailed from Chicago to San Francisco – court may take judicial notice that Chicago is in may take judicial notice that Chicago is in Illinois and San Francisco is in California and Illinois and San Francisco is in California and that they are two different states that they are two different states


FRE 201(b) kinds of factsFRE 201(b) kinds of facts– 1) generally known within the territorial 1) generally known within the territorial

jurisdiction of the courtjurisdiction of the courte.g. the Golden Gate Bridge is between Marin and e.g. the Golden Gate Bridge is between Marin and San Francisco CountiesSan Francisco Counties

– 2) capable of accurate and ready 2) capable of accurate and ready determination by resort to sources whose determination by resort to sources whose accuracy cannot reasonably be questionedaccuracy cannot reasonably be questioned

e.g. July 7, 1959, fell on a Monday e.g. July 7, 1959, fell on a Monday


FRE 201(c) – when discretionaryFRE 201(c) – when discretionary– A court may take judicial notice, whether A court may take judicial notice, whether

requested or notrequested or notIf the facts fall within subsection (b)If the facts fall within subsection (b)


FRE 201(d) – when mandatoryFRE 201(d) – when mandatory– The court shall take judicial notice if The court shall take judicial notice if

requested by a party and supplied with requested by a party and supplied with necessary informationnecessary information

Court, if requested will examine information Court, if requested will examine information proffered in support of request and see if it falls proffered in support of request and see if it falls within subsection (b); if so, the must take judicial within subsection (b); if so, the must take judicial notice of the factsnotice of the facts


FRE 201(d) – when mandatoryFRE 201(d) – when mandatory– The court may refuse to take notice only if:The court may refuse to take notice only if:

1) the fact is subject to reasonable dispute; or 1) the fact is subject to reasonable dispute; or

2) the fact is neither generally known within the 2) the fact is neither generally known within the territorial jurisdiction of the court nor readily territorial jurisdiction of the court nor readily verifiable from reliable sources verifiable from reliable sources

Judicial Notice (cont.) Judicial Notice (cont.)

FRE 201(e) – opportunity to be heardFRE 201(e) – opportunity to be heard– Limited right in that it permits court to take Limited right in that it permits court to take

judicial notice of a fact absent prior notification judicial notice of a fact absent prior notification and grant opportunity to be heard afterwards.and grant opportunity to be heard afterwards.


FRE 201(f) – time of taking of judicial FRE 201(f) – time of taking of judicial noticenotice– It may be taken at any stage of the It may be taken at any stage of the

proceedingproceeding– Even on appealEven on appeal


FRE 201(g) – instructing the juryFRE 201(g) – instructing the jury

– In a civil action: the court shall instruct the jury In a civil action: the court shall instruct the jury to accept as conclusive any fact judicially to accept as conclusive any fact judicially noticed.noticed.

– In a criminal case: the court shall instruct the In a criminal case: the court shall instruct the jury that it may, but is not required to accept jury that it may, but is not required to accept as conclusive any fact judicially noticed.as conclusive any fact judicially noticed.


Evid. Code § 451:mandatory judicial noticeEvid. Code § 451:mandatory judicial notice– Decisional, constitutional, & statutory law of this state and of the Decisional, constitutional, & statutory law of this state and of the

United StatesUnited States– State and Federal regulationsState and Federal regulations– Rules of Professional Responsibility and Rules of CourtRules of Professional Responsibility and Rules of Court– Rules of pleading, practice and procedure (Rules of U.S. Rules of pleading, practice and procedure (Rules of U.S.

Supreme Court, Fed Rules of Civil & Criminal Procedure, Court Supreme Court, Fed Rules of Civil & Criminal Procedure, Court of Claims, Bankruptcy Court , etc)of Claims, Bankruptcy Court , etc)

– The true signification of all English words and phrases and all The true signification of all English words and phrases and all legal expressionslegal expressions

– Facts and propositions of generalized knowledge so universally Facts and propositions of generalized knowledge so universally known that they cannot be reasonable disputedknown that they cannot be reasonable disputed


Evid. Code § 452: permissive judicial Evid. Code § 452: permissive judicial noticenotice– Similar list to § 451 – some additionsSimilar list to § 451 – some additions

Laws of sister statesLaws of sister statesLegislative acts Legislative acts Records of courts – U.S., Cal., sister statesRecords of courts – U.S., Cal., sister statesLaws of foreign nationsLaws of foreign nationsFacts of common knowledge of territoryFacts of common knowledge of territoryFacts not reasonably subject to dispute that may Facts not reasonably subject to dispute that may be immediately and accurately confirmedbe immediately and accurately confirmed


Evid. Code § 453: converting permissive Evid. Code § 453: converting permissive to mandatory judicial noticeto mandatory judicial notice– A matter within § 452A matter within § 452– Adverse party given sufficient noticeAdverse party given sufficient notice– Furnish the court with sufficient information to Furnish the court with sufficient information to

take judicial notice of the mattertake judicial notice of the matter


Evid. Code § 454: information that may be Evid. Code § 454: information that may be used in taking judicial noticeused in taking judicial notice– Any source of pertinent information, including Any source of pertinent information, including

the advice of persons learned on the subject the advice of persons learned on the subject matter, whether or not furnished by a partymatter, whether or not furnished by a party

– Exclusionary rules of evidence do not apply, Exclusionary rules of evidence do not apply, except for § 352 and the rules of privilegeexcept for § 352 and the rules of privilege

– Where the subject is the law of a foreign Where the subject is the law of a foreign nation, advice of learned persons may be in nation, advice of learned persons may be in writingwriting


Evid. Code § 455: opportunity to present Evid. Code § 455: opportunity to present information in open courtinformation in open court– Parties get reasonable opportunity to be Parties get reasonable opportunity to be

heard in open court before the jury is heard in open court before the jury is instructed or before the matter is submitted for instructed or before the matter is submitted for decision by courtdecision by court

– If court resorts to information not received in If court resorts to information not received in open court, such information shall be made a open court, such information shall be made a part of the record and parties shall have part of the record and parties shall have opportunity to be heard before notice is takenopportunity to be heard before notice is taken


Evid. Code § 457: instructing the juryEvid. Code § 457: instructing the jury– Court may upon request instruct the jury to Court may upon request instruct the jury to

accept as a fact the matter so noticedaccept as a fact the matter so noticed

Evid. Code § 459: these rules apply to a Evid. Code § 459: these rules apply to a reviewing court on appealreviewing court on appeal

StipulationsStipulations

A stipulation is an offer to admit a fact or a A stipulation is an offer to admit a fact or a set of factsset of facts

As an offer it can be rejected by a party or As an offer it can be rejected by a party or by the Court by the Court

StipulationsStipulations

If accepted, a stipulation is binding on the If accepted, a stipulation is binding on the trier of facttrier of fact

A stipulation to a fact does not bar further A stipulation to a fact does not bar further evidence relevant to that factevidence relevant to that fact

Stipulations (cont.)Stipulations (cont.)

A party cannot be forced to accept a stipulation A party cannot be forced to accept a stipulation if the effect would be to deprive the party’s case if the effect would be to deprive the party’s case of its persuasiveness and forcefulness (Cal. of its persuasiveness and forcefulness (Cal. case law rule)case law rule)– A plea of not guilty puts all elements in issueA plea of not guilty puts all elements in issue

E.g. defense offers to stipulate to cause of death to avoid E.g. defense offers to stipulate to cause of death to avoid autopsy photos and pathologist testimonyautopsy photos and pathologist testimonyE.g. defense offers to stipulate to state of mind in rape case E.g. defense offers to stipulate to state of mind in rape case to avoid other acts evidence (Evid.Code §1101(b) – other to avoid other acts evidence (Evid.Code §1101(b) – other bad acts to prove intent, motive, plan, absence of mistake, bad acts to prove intent, motive, plan, absence of mistake, etc.)etc.)

Stipulations (cont.)Stipulations (cont.)

Stipulations are usually a tactical matter in the Stipulations are usually a tactical matter in the discretion of the trial attorneydiscretion of the trial attorney

Some stipulations in criminal cases may touch Some stipulations in criminal cases may touch on confrontation rights and may require a on confrontation rights and may require a personal waiver by defendantpersonal waiver by defendant

Documents

Judicial Notice and Stipulations