Evidence - Judicial notice and authentication
Barry is on trial for possession of heroin with intent to sell. The prosecutor proves that Barry was caught in possession of sixty small baggies of heroin. The prosecutor asks the judge to take judicial notice of the fact that anyone with sixty bags of heroin intends to sell the heroin, because that amount is far more than anyone would personally use. Should the judge take judicial notice of this fact? A Yes, if the judge determines that this fact is beyond reasonable dispute and generally known to individuals in that area. B Yes, if the judge has tried so many heroin cases that she knows herself that sixty bags must mean that the defendant intended to sell the heroin. C Yes, if the judge has sufficient personal experience with individuals using or buying heroin so that she knows herself that sixty bags must mean that the defendant intended to sell the heroin. D No, because a judge may not take judicial notice of a fact in a criminal case.
A Yes, if the judge determines that this fact is beyond reasonable dispute and generally known to individuals in that area. Correct. Rule 201(b) states that a judge should take judicial notice of a fact if it is not subject to reasonable dispute and (1) is generally known or (2) can be accurately or readily determined from an unimpeachable source. B Yes, if the judge has tried so many heroin cases that she knows herself that sixty bags must mean that the defendant intended to sell the heroin. Incorrect. Whether the judge has personal knowledge of a fact is irrelevant to the determination of whether the judge should take judicial notice. C Yes, if the judge has sufficient personal experience with individuals using or buying heroin so that she knows herself that sixty bags must mean that the defendant intended to sell the heroin. Incorrect. Whether the judge has personal knowledge of a fact is irrelevant to the determination of whether the judge should take judicial notice. D No, because a judge may not take judicial notice of a fact in a criminal case.
At trial, a party wishes to prove the following two facts: (i) Drinking alcohol can result in a state of intoxication; (ii) Individuals who are between the ages of eighteen and twenty drink alcoholic beverage at a greater rate than any other age group. What are the permissible ways to get these facts into evidence? A The trial court should take judicial notice of both facts. B The trial court should take judicial notice of (i), but it should require the party to prove (ii) using expert evidence. C The trial court should require the party to prove both (i) and (ii) with expert evidence. D There is no way to prove these facts at trial
B The trial court should take judicial notice of (i), but it should require the party to prove (ii) using expert evidence. Correct. Rule 201 states that a court should take judicial notice of any fact that a fact that is not subject to reasonable dispute because it (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. The fact that drinking alcohol can result in a state of intoxication is a fact that is generally known. It can also be readily determined from a source whose accuracy cannot reasonably be questioned, such as a medical treatise. However, the proportion of people in a certain age group that drink alcohol is a matter that may be open to dispute, and there is no unimpeachable source that could provide that information. Therefore, the state would have to prove this fact using an expert witness. A The trial court should take judicial notice of both facts. Incorrect. A trial judge can only take judicial notice of facts which are either generally known or can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. Although the fact that drinking alcohol can result in intoxication is generally known, the fact that individuals of a certain age group drink more alcohol than other age groups is a not generally known and it cannot be easily established by referring to an unimpeachable source. C The trial court should require the party to prove both (i) and (ii) with expert evidence. Incorrect. There is no need to prove (i) with expert testimony, since it is a fact that is generally known. It can also be readily determined from a source whose accuracy cannot reasonably be questioned, such as a medical treatise. D There is no way to prove these facts at trial Incorrect. These facts can be proven at trial..
At trial, Raymond wishes to admit the photographs as evidence. What procedure should he follow? A. Call the investigator to the stand, show him the photos, and have him confirm that these are in fact the photos he took of the intersection. I B Call Raymond to the stand, show him the photos, and have him confirm that these are the photos taken by the investigator. C Call Raymond to the stand, show him the photos, and have him confirm that these photos are a fair and accurate representation of how the intersection and the stop sign appeared at the time of the accident. D Call an independent, unbiased witness who saw the intersection at the time of the accident. He can The witness can than look at the photos while on the witness stand, and confirm that these photos are a fair and accurate representation of how the intersection and the stop sign appeared at the time of the accident. If Raymond cannot find such a witness, the photos are inadmissible.
C Call Raymond to the stand, show him the photos, and have him confirm that these photos are a fair and accurate representation of how the intersection and the stop sign appeared at the time of the accident. Correct. This lays a proper foundation for the photos, since Raymond is providing sworn testimony that this is how the intersection looked at the time the accident occurred. This gives the photographs a very high probative value in the case. A. Call the investigator to the stand, show him the photos, and have him confirm that these are in fact the photos he took of the intersection. Incorrect. The investigator can only confirm that this is how the intersection appeared on the day the photos were taken, six months after the accident, which has very little probative value in the case. B Call Raymond to the stand, show him the photos, and have him confirm that these are the photos taken by the investigator. Incorrect. Raymond would only be confirming that this is how the intersection appeared on the day the photos were taken, six months after the accident, which has very little probative value in the case. D Call an independent, unbiased witness who saw the intersection at the time of the accident. He can The witness can than look at the photos while on the witness stand, and confirm that these photos are a fair and accurate representation of how the intersection and the stop sign appeared at the time of the accident. If Raymond cannot find such a witness, the photos are inadmissible. Incorrect. Although Raymond has an obvious bias in the case, he is perfectly competent to lay the foundation for the photos.
Which of the following facts would a court be most likely to take as judicially noticed? A. The fact that drinking alcohol is bad for your health. B. The fact that a witness had been previously convicted of a crime. C. The fact that Barack Obama was re-elected President of the United States in 2012. D. The fact that an individual who is carrying various credit cards that each have a different name on them has an intent to commit credit card fraud.
C. The fact that Barack Obama was re-elected President of the United States in 2012. Correct. A fact should be judicially noticed only if it is (1) beyond dispute and (2) it is generally known OR can be accurately verified by an unimpeachable source. The fact of Obama's reelection in 2012 is both beyond dispute and is generally known (and can also be verified by any number of unimpeachable sources). A. The fact that drinking alcohol is bad for your health. Incorrect. A fact should be judicially noticed only if it is (1) beyond dispute and (2) it is generally known OR can be accurately verified by an unimpeachable source. Although it is certainly true that drinking alcohol has some negative health effects, the proposition that drinking any alcohol at all is overall bad for your health is not "beyond dispute." B. The fact that a witness had been previously convicted of a crime. Incorrect. A fact should be judicially noticed only if it is (1) beyond dispute and (2) it is generally known OR can be accurately verified by an unimpeachable source. Although the fact that a defendant has been convicted of a crime may be beyond dispute in the sense that another court has issued a certificate of conviction, it is not a fact that is generally known, and another court's certificate of conviction is not "beyond dispute"—it may be mistaken. D. The fact that an individual who is carrying various credit cards that each have a different name on them has an intent to commit credit card fraud. Incorrect. A fact should be judicially noticed only if it is (1) beyond dispute and (2) it is generally known OR can be accurately verified by an unimpeachable source. Although this is a reasonable inference, it is not beyond dispute.
Denise and Linda were involved in an automobile accident, and Linda's car was destroyed. Denise was uninsured. At the scene of the accident, Denise apologized to Linda and wrote her a note which said: "I hereby state that this accident was my fault. I will pay whatever reasonable damages are due to Linda." A few days later, Linda sought payment from Denise. Denise refused to pay anything, saying she now thought the accident was Linda's fault. Linda sued Denise. At trial, Linda attempted to admit the note that Denise wrote at the scene in which Denise accepted responsibility for the accident. Denise denies ever having written the note. How can Linda prove that Denise wrote the note? A Call an expert in handwriting analysis, who can compare a known sample of Denise's handwriting to the note and testify that the handwriting is the same in each. B Call a witness who is familiar with Denise's handwriting, show the witness the note, and have her identify the handwriting on the note as coming from Denise. C Linda can take the stand herself, testify that she saw Denise write the note, and that she kept the note with her at all times since then, and that it is in the same condition now as it was when Denise first wrote it. D All of the above.
D All of the above. Correct. Under Rule 901(b)(3), an expert can testify that the handwriting sample matches the note. Under Rule 901(b)(2), a non-expert who is familiar with the handwriting can also testify that this is Denise's handwriting, as long as the non-expert did not become familiar with Denise's handwriting for the purposes of this litigation. And under Rule 901(b)(1), Linda can testify that this note is "what it is claimed to be"—a note that she observed Linda write. A Call an expert in handwriting analysis, who can compare a known sample of Denise's handwriting to the note and testify that the handwriting is the same in each. Incorrect. It is true that under Rule 901(b)(3), an expert can testify that the handwriting sample matches the note, but this is not the only way to do so in this case. It is also the most expensive and least convenient way to prove this fact. B Call a witness who is familiar with Denise's handwriting, show the witness the note, and have her identify the handwriting on the note as coming from Denise. Incorrect. It is true that under Rule 901(b)(2), a non-expert who is familiar with the handwriting can also testify that this is Denise's handwriting, as long as the non-expert did not become familiar with Denise's handwriting for the purposes of this litigation. However, it is not the only way to do so in this case. C Linda can take the stand herself, testify that she saw Denise write the note, and that she kept the note with her at all times since then, and that it is in the same condition now as it was when Denise first wrote it. Incorrect. It is true that under Rule 901(b)(1), Linda can testify that this note is "what it is claimed to be"—a note that she observed Linda write. However, it is not the only way to do so in this case.
