Judicial notice and presumptions

Question 1

judicial notice of legislative facts

Answer 1

not covered by FRE

Question 2

judicial notice of adjudicative facts: requirements

Answer 2

• pertinent to this case
• not subject to reasonable dispute b/c generally known w/in jurisdiction OR can be accurately/readily determined from sources whose accuracy cannot be reasonably questioned

Question 3

judicial notice of adjudicative facts: civil vs criminal case

Answer 3

• civil case: mandatory that jury accept as conclusive

- criminal case: jury has discretion to accept as conclusive

Question 4

judicial notice of adjudicative facts: when and how?

Answer 4

• at any stage in proceeding (even appellate)
• mandatory if party request and provides info
• no notice required
• court may take on its own
• opposing party has opp to respond even if already granted

Question 5

burden of persuasion

Answer 5

standard by which a party must prove its case (i.e. beyond a reasonable doubt)

Question 6

burden of production

Answer 6

if party does not produce the evidence, can suffer consequences like directed verdict, motion for judgment/acquittal, striking a defense

Question 7

presumptions generally

Answer 7

2 types: mandatory and permissive

If party proves A (basic fact), then fact finder can presume B (presumed fact)

Opposing party can attack existence of basic fact OR attack the presumed fact concluded

shifts the burden of production, NOT burden of persuasion

Question 8

mandatory presumptions

Answer 8

if party proves basic fact (A), then the presumed fact (B) will be found to exist so long as opposing party offers no evidence on either A or B

party has met burden or production and persuasion

NOT allowed in criminal cases for elements of a crime

Question 9

permissive presumptions

Answer 9

if party proves basic fact (A), jury may but need not find presumed fact (B) even nif no contrary evidence has been offered

party has met burden of production, but maybe not burden of persuasion

Question 10

bursting bubble theory of presumptions

Answer 10

if there is sufficient contrary evidence re: presumed fact B, bubble bursts and factual question is submitted to the jury for its determination

if there is only contrary evidence re: basic fact A, jury is instructed that if it resolves the basic fact in favor of the party benefitted by the presumption, they can presume the presumed fact B