Transcript CHAP. 10: JUDICIAL NOTICE

CHAP. 11: JUDICIAL NOTICE
P. JANICKE
2010
A SHORTCUT
• JUDICIAL NOTICE IS A SUBSTITUTE FOR
EVIDENCE
• A NICE DEVICE IF YOU ARE CAUGHT
WITHOUT PROOF
• IF THE OTHER SIDE OBJECTS TO J.N.,
MOST LITIGATORS VIEW J.N. WITH
CAUTION:
– IF ON APPEAL NOTICE IS FOUND TO HAVE
BEEN WRONGLY TAKEN, A REVERSAL
COULD OCCUR
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ON THE OTHER HAND :
• IN A CIVIL CASE A PROPER JUDICIAL
NOTICE IS BINDING ON THE JURY AS TO
THE FACTS NOTICED
• IN A CRIMINAL CASE THE JURY IS
INSTRUCTED THAT IT MAY CONCLUDE
THE NOTICED FACTS
– JUDGE IS A VERY INFLUENTIAL NUDGER
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SAFEST TACTIC :
• PROVE UP THE FACTS, IF YOU CAN
• AND ASK FOR JUDICIAL NOTICE
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2 ALTERNATE BASES FOR
JUDICIAL NOTICE (RULE 201)
1. FACTS GENERALLY KNOWN IN
THE LOCALE, E.G.:
– MAIN AND FANNIN ARE HEAVILY
TRAVELED STREETS
– ONE CAN SEE MINUTE MAID PARK
FROM HWY. 59
– THE ASTROS HAVE PLAYED IN
HOUSTON FOR MANY YEARS
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2. FACTS NOT GENERALLY KNOWN,
BUT ASCERTAINABLE FROM
REFERENCES OF INDISPUTABLE
ACCURACY
– CLOSING PRICE OF IBM ON JULY 22
– HIGH TIDE TIMES AT GALVESTON
ISLAND ON APRIL 17
– FRENCH IS AN OFFICIAL LANGUAGE
IN BELGIUM
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AN IMPROPER BASIS
• JUDGE’S PERSONAL KNOWLEDGE
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PROCEDURE
(RULE 201)
• ASK ON THE RECORD FOR COURT
TO TAKE J.N. THAT “________” .
• SUPPORTIVE REFERENCES CAN BE
HANDED UP TO THE BENCH FREELY
TO ASSIST THE JUDGE
– THESE ARE NOT BEING RECEIVED IN
EVIDENCE
– J.N. IS A SUBSTITUTE FOR EVIDENCE
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ADVERSARY
• IS ENTITLED TO OBJECT BEFORE
J.N. IS TAKEN
• IF IT HAPPENS TOO FAST, SHE CAN
OBJECT AFTERWARD AND HAS A
RIGHT TO BE HEARD
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RULING AND EFFECT
• JUDGE SAYS: “THE COURT WILL
TAKE J.N. THAT THE SUN ROSE
AT 5:14 a.m. OVER THE SHIP
CHANNEL THAT DAY”
• (CIVIL CASES) “...AND THE JURY
IS SO INSTRUCTED”
– A CONTEMPT TO CONTROVERT,
BUT CAN MOVE TO VACATE
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CRIMINAL CASES :
• INSTRUCTION IS PERMISSIVE
– “THE JURY IS INSTRUCTED THAT IT
MAY FIND WITHOUT FURTHER
EVIDENCE THAT THE SUN ROSE AT
5:14 a.m. ....”
• NOT A CONTEMPT TO
CONTROVERT THIS
• CAN PUT IN OPPOSING EVIDENCE
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