Judicial Notice and Stipulations

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