CHAP. 11: JUDICIAL NOTICE

OF FACTS

Prof. JANICKE

2015

NOTICE OF FACTS

• IS THE ONLY TYPE O NOTICE INVOLVED HERE

• JUDICIAL NOTICE OF LAW OR LEGISLATIVE INTENT ARE OUTSIDE THIS COURSE

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A SHORTCUT

• JUDICIAL NOTICE OF A FACT IS A SUBSTITUTE FOR EVIDENCE ON THAT FACT

• A NICE DEVICE IF YOU ARE CAUGHT WITHOUT PROOF

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EFFECT OF NOTICE

• IN A CIVIL CASE A PROPER JUDICIAL NOTICE IS BINDING ON THE JURY AS TO THE FACT NOTICED

• IN A CRIMINAL CASE THE JURY IS INSTRUCTED THAT IT MAY CONCLUDE THE NOTICED FACT– JUDGE IS A VERY INFLUENTIAL NUDGER

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2 ALTERNATE BASES FOR JUDICIAL NOTICE (RULE 201)

1. FACTS GENERALLY KNOWN IN THE LOCALE; E.G.:

– IN HOUSTON, MAIN AND FANNIN ARE HEAVILY TRAVELED STREETS

– IN HOUSTON, PART OF EXTERIOR OF MINUTE MAID PARK IS VISIBLE 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 SHARES ON JULY 22

– HIGH TIDE TIMES AT GALVESTON ISLAND ON APRIL 17, 2015

– 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

• JUDGE SAYS: “THE COURT WILL TAKE J.N. THAT THE SUN ROSE AT 5:14 a.m. OVER THE HOUSTON SHIP CHANNEL ON MAY 29, 2015; THE JURY WILL BE SO INSTRUCTED.”

EFFECT IN CIVIL CASES:

• ONCE TAKEN, IT IS BINDING ON THE TRIER AND THE PARTIES

• CONTROVERTING EVIDENCE IS NOT ALLOWED– BUT OPPONENT CAN MOVE TO

VACATE THE NOTICE IF IT WAS IMPROPERLY TAKEN

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EFFECT IN 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. ....”

• CONTROVERTING EVIDENCE IS ALLOWED– BUT SELDOM HAPPENS

PROBLEMS/CASES

• 11A

• 11B

• 11D

• 11E

• Virgin Islands

• 11G

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