Judicial Notice, Burdens and Presumptions

Not every fact in a case has to be proved by testimony or documents. Some are accepted because they cannot sensibly be contested. Others are assumed unless someone comes forward to contest them. And every disputed fact carries an allocation of who must persuade the trier of fact. These three mechanisms operate together and are frequently confused with one another.

The facts a court may accept without proof

Federal Rule of Evidence 201 governs judicial notice of adjudicative facts, meaning the facts of the particular case — who did what, when, where, and with what effect. It does not govern legislative facts, which are the general propositions a court relies on in deciding what a rule should be. The rule imposes no procedure on the latter at all.

A court may notice a fact that is not subject to reasonable dispute because it is generally known within the trial court's territorial jurisdiction, or because it can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. The distance between two towns, the day of the week on which a given date fell, and the content of a filed public record are standard examples.

The rule is strictly limited to indisputable facts. A fact that a judge happens to know from personal experience is not judicially noticeable unless it is also generally known in the community. Personal knowledge is exactly what the rule excludes, since the reason for dispensing with proof is that no reasonable person would contest the point.

Procedure and the effect on the jury

A court may take notice on its own or must do so if a party requests it and supplies the necessary information. Notice may be taken at any stage of the proceeding, including on appeal. A party is entitled on timely request to be heard on the propriety of taking notice and on the nature of the fact noticed, and if the court acts before notifying a party, the party may still be heard afterward.

The instruction differs by case type. In a civil case the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case the court must instruct that the jury may, but is not required to, accept the fact as conclusive. That difference reflects the constitutional requirement that the prosecution prove every element and that the jury retain the power to find against it.

Production, persuasion and the standards

The burden of production, sometimes called the burden of going forward, asks whether a party has offered enough evidence on an issue to allow a reasonable trier of fact to find in its favor. Failure to meet it results in the issue being taken from the jury. The burden of persuasion asks who loses if the trier of fact finds the evidence evenly balanced, and it is only relevant at the end.

The standards of persuasion are three. Preponderance of the evidence, the ordinary civil standard, asks whether a proposition is more likely true than not. Clear and convincing evidence, applied to matters such as fraud in some jurisdictions and to certain civil deprivations, requires a firm conviction of the truth. Proof beyond a reasonable doubt applies to the elements of a criminal offense.

How a presumption actually operates

A presumption is a rule that, once a basic fact is established, a further fact is taken as established. Rule 301 provides that in a civil case, unless a federal statute or the rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut it, but the burden of persuasion remains on the party who had it originally.

The common label for this design is the bursting bubble. Once contrary evidence sufficient to support a finding is produced, the presumption ceases to have operative effect and the case proceeds on the evidence. It is a device for allocating who must speak first, not a thumb on the scale at the end. Statutory presumptions sometimes do more, and where a statute says a presumption shifts the burden of persuasion, the statute controls.

Rule 302 handles the choice-of-law problem. In a civil case, state law governs the effect of a presumption regarding a claim or defense for which state law supplies the rule of decision. Many states give presumptions greater force than Rule 301 does, so the characterization of the element matters. Foreign law raises a different question, since it is determined as a matter of law rather than proved as a fact.

Where the allocations decide cases

Burden allocation is often outcome-determinative in regulatory and fraud litigation, where the parties agree on the events and disagree about who must prove their significance. The point recurs in disputes over materiality and what the government's knowledge does to it, where the question is less what happened than who must establish its effect on the payment decision.

The same devices appear in proceedings that begin with documents from another system. A party seeking to rely on a foreign court's judgment usually asks for notice of the record and then relies on statutory presumptions, an interaction covered in the recognition of a foreign money judgment. And a misallocated burden is a legal error, reviewed without deference under the framework for identifying the applicable standard of review, provided the point was preserved.