Talk:Judicial notice

Confused by article

I am confused by the current state of the article:

The introduction consists of three parts: The first gives an (informal) overview of the principle; the second (blackout) an example consistent with that overview; the third (Lincoln, almanac) is not, to me, obviously consistent with the first part. The hitch is that by referencing an almanac, Lincoln does not draw upon a fact that was "so notorious or well known that it cannot be refuted"[*]---if he had, then he would not have needed the almanac.

Later FRE 201(b) is cited with two (formal) cases that apply. The second of these seems consistent with the use of almanac, but is inconsistent with the original, informal, overview.

Later yet the claim is made:

In a civil trial, the fact taken notice of is thereby conclusively proved.  In the above example regarding the blackout, if the court were to take judicial notice of the fact that power was unavailable, the party opposing that finding would be prohibited from attempting to introduce evidence to prove otherwise.

If we apply this equally to the almanac case, then the opponent would not have had the opportunity to challenge the correctness of the almanac---despite a real, albeit small, possibility of a misprint. (That this was a criminal trial and that the events may have preceded the exact regulations, is irrelevant: The case is used as an illustration of the modern principle.)

Based on the above, I see at least two issues where the text needs adjustment:

1. The introduction must be made internally consistent, and a sufficient degree of overlap between the formal and informal descriptions must be present. Note, in particular, that the typical reader will not have a background in law, which implies that a formulation that is "obvious" to a legal professional need not be so to him.
2. The prohibition on introducing contrary evidence must be described better/be made consistent with the text: Either no challenging is possible and the almanac case is not valid, or challenging is possible and a corresponding description of the circumstances must be given. (A hypothetical option is that the almanac case is valid despite no challenging being possible. In that case, however, the U.S. justice system contains a very dangerous flaw.) —Preceding unsigned comment added by 88.77.159.225 (talk) 02:47, 6 July 2009 (UTC)

I too am confused as to how Lincoln's citation to an almanac relates to judicial notice. It seems very clear to me that this is quite the opposite of judicial notice: documentary evidence was entered into the record, rather than someone stating, "Everyone knows the moon wasn't out that night." I am removing the paragraph from the article. Robert K S (talk) 08:06, 2 September 2009 (UTC)

• This is the second type of judicial notice that may be taken; the court may take cognizance of things that are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned", such as reports of the position of hte moon in an almanac. It's no different than a calendar date. A court can take judicial notice of the fact that July 3, 1894, was a Tuesday, even though the judge may not know that offhand. Introduction of a calendar notation to that effect allows the court to determine the fact alleged to be conclusively proven, and to so instruct the jury. In the Lincoln case, the almanac would have been used to the same effect; the court could take judicial notice of the phase of the moon, thus removing the power of the jury to decide that the moon was in a different phase. bd2412 T 13:40, 3 September 2009 (UTC)

[*] I've amended the quoted phrase, and the sentence generally (to include this second type of case, where the fact is dealt with by authoritative sources, rather than where everyone knows the fact anyway). I've also removed mention of determination "by the court" - because (within the English jurisdiction, at least) the phrase "by the court" suggests determination by the judge - whereas (as noted in the body of the article) in criminal cases the issue can go to the jury. And I've replaced the term "matters", in the remaining sentence of the para - to apply the Golden Rule (that the same term should be used for the same thing: ie so the fact doesn't suddenly get called a matter), and to clarify that what's being said here applies to (in, eg the almanac case) both the fact (moon/timing) at issue and the document (almanac) evidencing it. SquisherDa (talk) 03:51, 23 February 2012 (UTC)

Globalising

Globalising - getting away from US-centric or Anglophone mindset / point-of-view - is always going to be tricky where the common law is concerned . . because the common law is a distinctively English thing - essentially: ie, in origin.

The Roman system took shape from the idea that the state needed to resolve a dispute between citizens (and/or apparently unacceptable behavior by citizen(s)) - and therefore undertook some sort of 'inquisitorial' process (so as to reach its decision on what action to take).

Roman law did not survive in England (ie it faded with the collapse of Roman government; and/or was displaced from England when the Angles, Saxons etc drove the Britons into Wales (and Ireland?); and whatever the new peoples might have picked up from the Britons was replaced by the Normans when they applied their own system of government .. this is something other contributors will be much clearer on than I am). Instead, the Norman kings initially parcelled out large areas of England to powerful peers, as feudal tenants-in-chief, and left them to run their own courts (as well as armies etc etc); then had second thoughts and started interfering in local administration (eg making national rules about how broad a border main roads should have, cleared of trees). The King's Courts were initially operating in a foreign country, often facing the hostility of both parties. The famous principle that no-one should answer for his lands or his life in any but the King's Courts originated in this period of "bastard feudalism" - and was famous because it wasn't always readily accepted.

In this context, a far more 'adversarial' practice evolved. The King's representative was not trying to conduct his own enquiry, to reach his own decision on the facts. He was imposing on the parties his own authority to hear and determine, on the King's behalf, an issue that had arisen between the parties - using an open-court process to do this, and leaving it to the parties to bring the facts into Court.

And to expose any weaknesses / gaps in each others' cases, which is where the relevance of all this to the doctrine of judicial notice lies. Presumably pretty well everything I've said so far should appear in other articles? and probably already does?

Initially the law was heavily ceremonial / procedural. If the relevant party took the appropriate oath in public / in Court, and/or persuaded the correct number of neighbors to form a jury to swear on his behalf, and/or successfully coped with trial by fire, combat, water or whatever, the result was as decided by this process. Over time, though, emphasis shifted to the facts / merits of the case (partly because there was sometimes a preliminary question about which ceremony / process was applicable: once there was a result at pre-trial the parties might well decline to proceed to the formal ceremony). Again, this is material for other articles, right?

In a trial on the merits, conducted adversarially, the issue that could always arise was how far one party could demand that the other party provide evidence of something. In any orderly Court process, some points had to be evidenced with care (for example, intent, in a case of murder; or, where land is said to have been transferred, that the people involved completed the process of seisin). And that meant each party had to be free to insist the other side bring proper evidence on such things. But if every relevant fact is challengeable, the hearing will never reach an end. (At least, not if one side fancies a filibuster. Is moonlight ever bright enough to see by? Is there a moon? Is the moon a recent development, or has there always been one?) And in fairness to the parties, there must be some rule about where the challenges stop.

(When an English judge famously asked "Who, pray, are the Beatles?", he wasn't claiming he hadn't heard of them. He was warning the lawyer who was speaking that if the Beatles were relevant to the case he should lead evidence as to their identity - and if they weren't he would do well to stop wasting the Court's time. Either way, he, as judge, would not consider it fair - to the other side - for him to take judicial notice on the point and so free the party raising it from the ordinary obligation to provide evidence properly.)

The globalisation challenge is to make that seem a natural background, to a reader who has always understood that the remit of the police, in criminal cases, is to act under the direction of a local judge, carrying out an enquiry to establish whether a suspect should be charged! - someone to whom the Portuguese concept of 'arguido', which surfaced in the McCann child-abduction case, is a straightforward and very necessary safeguard for potential defendants.

At least, that's what's involved for a mainland European reader, or a South-American. I'm guessing that it's rather the same for (eg) Chinese readers? Russian? - that basically all but common-law jurisdictions operate inquisitorially? to the extent that what makes sense to a Portuguese reader will make sense to them?

References: Plucknett's the main one (can't remember the title). Maitland's The Forms of Action At Common Law might cast some light too. Standard history-of-law stuff.

SquisherDa (talk) 08:57, 11 February 2012 (UTC)