Chapter 24

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24.2 What Is Evidence

24.2.4 What Is Evidence: Judicial Notice

    24.2.4.1 Judicial Notice: Explanatory Instruction
    24.2.4.2 Judicial Notice Regarding Principles Of Psychology
    24.2.4.3 Judicial Notice: Federal Circuit Model Instructions And Notes
    24.2.4.4 Judicial Notice Of Federal Rules And Regulations: Violation Of The Rule Not Sufficient To Convict

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24.2.4.1 Judicial Notice: Explanatory Instruction

RATIONALE: Due to the unique procedural nature of judicial notice, special instruction may be appropriate when a matter is judicially noticed.

POINTS AND AUTHORITIES: People v. Moore (CA 1997) 59 CA4th 168, 179 [69 CR2d 56] considered the matter of how the jury should be instructed upon a fact which the trial court has judicially noticed. The court distinguished those cases holding that it is improper to direct a verdict on an element of the charge on the basis that, where judicial notice is mandatory, the indisputable fact must be accepted and no evidence can be offered to dispute it. (Moore, 59 CA4th at 185.) Accordingly, the jury was correctly instructed to accept the judicially noticed matter as true.

On the other hand, under the federal rules, the jury is free to decide for itself. "FRE 201(g) of creates a difficult dilemma for trial judges. At the threshold, the trial judge must determine that a fact is sufficiently undisputed to be judicially noticed. Yet, the judge must then advise the jurors that they can disagree with his or her conclusion." (Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 7 [Judicial Notice], commentary (1988).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.1; 7.3].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 24.2.4.3 [Judicial Notice: Federal Circuit Model Instructions And Notes].

SAMPLE INSTRUCTION # 1: [Jury Bound]:

Even though no evidence has been introduced about it, I have decided to accept as proved the fact that __________ [insert fact judicially noticed]. I believe that this fact is of such common knowledge [or insert alternative for judicial notice] that no evidence need be presented about it. Thus, you must treat it as proved, even though no evidence was brought out on the point.

[Adapted from Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 7 [Judicial Notice] p. 13 (1988).]

SAMPLE INSTRUCTION # 2: [Jury Not Bound]:

Even though no evidence has been introduced about it, I have decided to accept as proved the fact that [e.g.: the city of San Francisco is north of the city of Los Angeles]. I believe that this fact is of such common knowledge [or alternative justification per FRE 201(b)(2)] that it would be a waste of our time to hear evidence about it. Thus, you may treat it as proved, even though no evidence was brought out on the point. Of course, with his fact, as with any fact, you will have to make the final decision and you are not required to agree with me.

[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 7 [Judicial Notice] (1988).]

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24.2.4.2 Judicial Notice Regarding Principles Of Psychology

See FORECITE National™ 31.2.6 [Judicial Notice].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 24.2.4.3 [Judicial Notice: Federal Circuit Model Instructions And Notes].

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24.2.4.3 Judicial Notice: Federal Circuit Model Instructions And Notes

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 3.04.

See also 6th Circuit Pattern Jury Instructions - Criminal 1.04.

See also 6th Circuit Pattern Jury Instructions - Criminal 7.19.

See also 7th Circuit Federal Jury Instructions - Criminal 1.02.

See also 8th Circuit Model Jury Instructions - Criminal 2.04.

See also 9th Circuit Model Jury Instructions - Criminal 1.3.

See also 9th Circuit Model Jury Instructions - Criminal 2.5.

See also 9th Circuit Model Jury Instructions - Criminal 3.7.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 7.

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24.2.4.4 Judicial Notice Of Federal Rules And Regulations: Violation Of The Rule Not Sufficient To Convict

POINTS AND AUTHORITIES: Federal courts are authorized to take judicial notice of federal rules and regulations such as the federal register. (See 44 USC 1507 [ "The contents of the federal register shall be judicially noticed . . ."].) Similarly, rules and regulations such as those promulgated by the Federal Trade Commission (FTC) are also subject to judicial notice. ([NF] United States v. Woods (9th Cir. 7/14/2003, No. 01-50539) 335 F3d 993 [district court properly took notice of FTC rule and that it could serve as a basis for defendants’ duty to disclose material facts].)

However, when such a rule or regulation is judicially noticed, the jurors should be instructed that violation of the rule itself does not constitute the charged crime and that the defendant is "not on trial for any conduct or offense not charged in the indictment." ([NF] Woods, 335 F3d 993, 2003 U.S. App. LEXIS 14054, * 18-19.)

SAMPLE INSTRUCTION:

The Court has decided to accept as proved the following ___________ (insert promulgating body, e.g., Federal Trade Commission) [rule] [regulation]: _________________. However, please remember that the defendant is not on trial for a violation of this [rule] [regulation]. Even if you were to find beyond a reasonable doubt that [he] [she] did violate this [rule] [regulation] such a finding would not be sufficient to return a guilty verdict.

The only offense with which the defendant is charged is ___________ (insert charge). You may not vote to convict unless you have found that the prosecution has proven beyond a reasonable doubt that ____________________ (insert elements of the charge).

[See 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL (2000) 2.5 [Judicial Notice]; [NF] United States v. Woods (9th Cir. 7/14/2003, No. 01-50539) 335 F3d 993.]