evidence professor cioffi 3/15/2011 – 3/16/2011

Evidence

Professor CioffiProfessor Cioffi

3/15/2011 – 3/16/20113/15/2011 – 3/16/2011

Rule 1001. Definitions [Current Rule]

For purposes of this article the following For purposes of this article the following definitions are applicable:definitions are applicable:

1)1) Writings and recordings.Writings and recordings. “Writings” and “Writings” and “recordings” consist of letters, words, or “recordings” consist of letters, words, or numbers, or their equivalent, set down by numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or photographing, magnetic impulse, mechanical or electronic recording, or other forms of data electronic recording, or other forms of data compilation.compilation.

2)2) Photographs.Photographs. “Photographs” include still “Photographs” include still photographs, X-ray films, video tapes, and photographs, X-ray films, video tapes, and motion pictures.motion pictures.

Rule 1001(cont’d)[Current Rule]

3)3) Original.Original. An “original” of a writing or An “original” of a writing or recording is the writing or recording itself or any recording is the writing or recording itself or any counterpart intended to have the same effect by counterpart intended to have the same effect by a person executing or issuing it. An “original” a person executing or issuing it. An “original” of a photograph includes the negative or any of a photograph includes the negative or any print therefrom. If data are stored in a computer print therefrom. If data are stored in a computer or similar device, any printout or other output or similar device, any printout or other output readable by sight, shown to reflect the data readable by sight, shown to reflect the data accurately, is an “original.”accurately, is an “original.”

4)4) Duplicate.Duplicate. A “duplicate” is a counterpart A “duplicate” is a counterpart produced by the same impression as the original, produced by the same impression as the original, or from the same matrix, or by means of or from the same matrix, or by means of photography, including enlargements and photography, including enlargements and miniatures, or by mechanical or electronic re-miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by recording, or by chemical reproduction, or by other equivalent techniques which accurately other equivalent techniques which accurately reproduces the original.reproduces the original.

Rule 1001. Definitions That Apply to This Article[Effective 12/1/2011]

In this article, the following definitions apply:In this article, the following definitions apply:

(a)(a) Writing. Writing. A “writing” consists of letters, words, A “writing” consists of letters, words, numbers, or their equivalent set down in any numbers, or their equivalent set down in any form.form.

(b)(b) Recording.Recording. A “recording” consists of letters, A “recording” consists of letters,words, numbers, or their equivalent recorded inwords, numbers, or their equivalent recorded inany manner.any manner.

(c)(c) Photograph.Photograph. “Photograph” means a “Photograph” means a photographic image or its equivalent stored in photographic image or its equivalent stored in any form.any form.

(d)(d) Original.Original. An “original” of a writing or An “original” of a writing or recording means the writing or recording itself recording means the writing or recording itself or any counterpart intended to have the same or any counterpart intended to have the same effect by the person who executed or issued it. effect by the person who executed or issued it. For electronically stored information, “original” For electronically stored information, “original”

Rule 1001 (cont’d)

[Effective 12/1/2011]

means any printout - or other output readable by sight - if means any printout - or other output readable by sight - if it accurately reflects the information. An “original” of a it accurately reflects the information. An “original” of a photograph includes the negative or a print from it.photograph includes the negative or a print from it.

(e)(e) DuplicateDuplicate. “Duplicate” means a counterpart produced by . “Duplicate” means a counterpart produced by a mechanical, photographic, chemical, electronic, or other a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces equivalent process or technique that accurately reproduces the original. the original.

Rule 1002. Requirement of Original [Current Rule]

To prove the content of a writing, recording or To prove the content of a writing, recording or photograph, the original writing, recording, or photograph photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or is required, except as otherwise provided in these rules or by Act of Congress.by Act of Congress.

Rule 1002. Requirement of Original [Effective 12/1/2011]

An original writing, recording, or photograph is required in An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal order to prove its content unless these rules or a federal statute provides otherwise.statute provides otherwise.

Rule 1003. Admissibility of Duplicates[Current Rule]

A duplicate is admissible to the same extent as an A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.would be unfair to admit the duplicate in lieu of the original.

Rule 1003. Admissibility of Duplicates[Effective 12/1/2011]

A duplicate is admissible to the same extent as the original A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the authenticity or the circumstances make it unfair to admit the duplicate.duplicate.

Rule 1004. Admissibility of Other Evidence of Contents[Current Rule]

The original is not required, and other evidence The original is not required, and other evidence

of the contents of a writing, recording, or photograph is of the contents of a writing, recording, or photograph is admissible if—admissible if—

1)1) Originals lost or destroyed.Originals lost or destroyed. All originals are All originals are lost or have been destroyed, unless the proponent lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; orlost or destroyed them in bad faith; or

2)2) Original not obtainable.Original not obtainable. No original can be No original can be obtained by any available judicial process or obtained by any available judicial process or procedure; orprocedure; or

Rule 1004 (cont’d)[Current Rule]

3)3) Original in possession of opponent.Original in possession of opponent. At a time At a time when an original was under the control of the when an original was under the control of the party against whom offered, that party was put party against whom offered, that party was put on notice, by the pleadings or otherwise, that the on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the contents would be a subject of proof at the hearing, and that party does not produce the hearing, and that party does not produce the original at the hearing; ororiginal at the hearing; or

4)4) Collateral matters.Collateral matters. The writing, recording, or The writing, recording, or photograph is not closely related to a controlling photograph is not closely related to a controlling issue.issue.

Rule 1004 Admissibility of Other Evidence of Content [Effective 12/1/2011]

An original is not required, and other evidence of the An original is not required, and other evidence of the content of a writing, recording, or photograph is content of a writing, recording, or photograph is admissible if:admissible if:

(a)(a) all the originals are lost or destroyed, and not by all the originals are lost or destroyed, and not by the proponent acting in bad faith; the proponent acting in bad faith;

(b)(b) an original cannot be obtained by any available an original cannot be obtained by any available judicial process; judicial process;

(c)(c) the party against whom the original would be the party against whom the original would be offered had control of the original; was at that offered had control of the original; was at that time put on notice, by pleadings or otherwise, time put on notice, by pleadings or otherwise,

Rule 1004 (cont’d)[Effective 12/1/2011]

that the original would be a subject or proof at the trial that the original would be a subject or proof at the trial or hearing; and fails to produce it at the trial or hearing; or hearing; and fails to produce it at the trial or hearing; or or

(d)(d) the writing, recording, or photograph is not closely the writing, recording, or photograph is not closely related to a controlling issue.related to a controlling issue.

Rule 1005. Public Records [Current Rule]

The contents of an official record, or of a document The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in admissible, may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. If a copy witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the exercise of reasonable diligence, then other evidence of the contents may be given.the contents may be given.

Rule 1005. Copies of Public Records to Prove Content [Effective 12/1/2011]

The proponent may use a copy to prove the content of an The proponent may use a copy to prove the content of an official record – or of a document that was lawfully official record – or of a document that was lawfully recorded or filed in a public office – if these conditions are recorded or filed in a public office – if these conditions are met: the record or document is otherwise admissible; and met: the record or document is otherwise admissible; and the copy is certified as correct in accordance with Rule the copy is certified as correct in accordance with Rule 902(4) or is testified to be correct by a witness who has 902(4) or is testified to be correct by a witness who has compared it with the original. If no such copy can be compared it with the original. If no such copy can be obtained by reasonable diligence, then the proponent may obtained by reasonable diligence, then the proponent may use other evidence to prove the content.use other evidence to prove the content.

Rule 1006. Summaries [Current Rule]

The contents of voluminous writings, recordings, or The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other available for examination or copying, or both, by other parties at reasonable time and place. The court may order parties at reasonable time and place. The court may order that they be produced in court.that they be produced in court.

Rule 1006. Summaries to Prove Content[Effective 12/1/2011]

The proponent may use a summary, chart, or calculation to The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates The proponent must make the originals or duplicates available for examination or copying, or both, by other available for examination or copying, or both, by other parties at a reasonable time or place. And the court may parties at a reasonable time or place. And the court may order the proponent to produce them in court.order the proponent to produce them in court.

Rule 1007. Testimony or Written Admission of Party [Current Rule]

Contents of writings, recordings, or photographs Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party may be proved by the testimony or deposition of the party against whom offered or by that party’s written admission, against whom offered or by that party’s written admission, without accounting for the nonproduction of the original.without accounting for the nonproduction of the original.

Rule 1007. Testimony or Admission of a Party to Prove Content [Effective 12/1/2011]

The proponent may prove the content of a writing, The proponent may prove the content of a writing, recording, or photograph by the testimony, deposition, or recording, or photograph by the testimony, deposition, or written admission of the party against whom the evidence is written admission of the party against whom the evidence is offered. The proponent need not account for the original. offered. The proponent need not account for the original.

Rule 1008. Functions of Court and Jury[Current Rule]

When the admissibility of other evidence of contents When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions for the court to determine in accordance with the provisions of Rule 104. However, when an issue is raised (a) whether of Rule 104. However, when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another the asserted writing ever existed, or (b) whether another writing, recording, or photograph produced at the trial is the writing, recording, or photograph produced at the trial is the original, or (c) whether other evidence of contents correctly original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact.determine as in the case of other issues of fact.

Rule 1008. Functions of Court and Jury[Effective 12/1/2011]

Ordinarily, the court determines whether the proponent has Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under of the content of a writing, recording, or photograph under Rule 1004 or 1005. But in a jury trial, the jury determines – Rule 1004 or 1005. But in a jury trial, the jury determines – in accordance with Rule 104(b) – any issue about whether:in accordance with Rule 104(b) – any issue about whether:

(a) (a) an asserted writing, recording, or photograph ever an asserted writing, recording, or photograph ever existed; existed; (b)(b) another one produced at the trial or hearing is the another one produced at the trial or hearing is the original; or original; or (c)(c) other evidence of content accurately reflects the content. other evidence of content accurately reflects the content.

Rule 501. General Rule[Current Rule]

Except as otherwise required by the Constitution of Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by State, or political subdivision thereof shall be governed by the principles of the common law as they may be the principles of the common law as they may be interpreted by the courts of the United States in the light of interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in political subdivision thereof shall be determined in accordance with State law.accordance with State law.

Rule 501. Privilege in General[Effective 12/1/2011]

The common law – as interpreted by United States courts The common law – as interpreted by United States courts in the light of reason and experience – governs a claim of in the light of reason and experience – governs a claim of privilege unless any of the following provides otherwise:privilege unless any of the following provides otherwise:• the United States Constitution;the United States Constitution;• A federal statute; orA federal statute; or• Other rules prescribed by the Supreme Court.Other rules prescribed by the Supreme Court.

But in a civil case, state law governs privilege regarding But in a civil case, state law governs privilege regarding

a claim or defense for which state law supplies the rule of a claim or defense for which state law supplies the rule of

decision.decision.

Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver [Current Rule]

The following provisions apply, in the circumstances set The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.the attorney-client privilege or work-product protection.

(a) Disclosure made in a Federal proceeding or to a (a) Disclosure made in a Federal proceeding or to a Federal office or agency; scope of a waiver.Federal office or agency; scope of a waiver. When the When the disclosure is made in a Federal proceeding or to a Federal office disclosure is made in a Federal proceeding or to a Federal office or agency and waives the attorney-client privilege or work-or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed product protection, the waiver extends to an undisclosed communication or information in a Federal or State proceeding communication or information in a Federal or State proceeding only if:only if:

Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver (Cont’d)[Current Rule]

(1)(1) the waiver is intentional; the waiver is intentional;

(2)(2) the disclosed and undisclosed communications or information the disclosed and undisclosed communications or information concern the same subject matter; andconcern the same subject matter; and

(3)(3) they ought in fairness to be considered together. they ought in fairness to be considered together.

(b) Inadvertent disclosure.(b) Inadvertent disclosure. When made in a Federal proceeding or to When made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver a Federal office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding if:in a Federal or State proceeding if:

(1)(1) the disclosure is inadvertent; the disclosure is inadvertent;


(2)(2) the holder of the privilege or protection took the holder of the privilege or protection took reasonable steps to prevent disclosure; andreasonable steps to prevent disclosure; and

(3)(3) the holder promptly took reasonable steps to rectify the the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).Civil Procedure 26(b)(5)(B).


(c) Disclosure made in a State proceeding.(c) Disclosure made in a State proceeding. When the When the disclosure is made in a State proceeding and is not the disclosure is made in a State proceeding and is not the subject of a State-court order concerning waiver, the subject of a State-court order concerning waiver, the disclosure does not operate as a waiver in a Federal disclosure does not operate as a waiver in a Federal proceeding if the disclosure:proceeding if the disclosure:

(1)(1) would not be a waiver under this rule if it had been would not be a waiver under this rule if it had been made in a Federal proceeding; ormade in a Federal proceeding; or

(2)(2) is not a waiver under the law of the State where the is not a waiver under the law of the State where the disclosure occurred.disclosure occurred.


(d) Controlling effect of a court order.(d) Controlling effect of a court order. A Federal court A Federal court may order that the privilege or protection is not waived by may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the disclosure connected with the litigation pending before the court—in which event the disclosure is also not a waiver in court—in which event the disclosure is also not a waiver in any other Federal or State proceeding.any other Federal or State proceeding.

(e) Controlling effect of a party agreement.(e) Controlling effect of a party agreement. An An agreement on the effect of disclosure in a Federal agreement on the effect of disclosure in a Federal proceeding is binding only on the parties to the agreement, proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.unless it is incorporated into a court order.


(f) Controlling effect of this rule.(f) Controlling effect of this rule. Notwithstanding Rules 101 Notwithstanding Rules 101 and 1101, this rule applies to State proceedings and to Federal and 1101, this rule applies to State proceedings and to Federal court-annexed and Federal court-mandated arbitration court-annexed and Federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if State law notwithstanding Rule 501, this rule applies even if State law provides the rule of decision.provides the rule of decision.

(g) Definitions.(g) Definitions. In this rule: In this rule:

(1)(1) ‘‘attorney-client privilege’’ means the protection that ‘‘attorney-client privilege’’ means the protection that applicable law provides for confidential attorney-client applicable law provides for confidential attorney-client communications; andcommunications; and


(2)(2) ‘‘work-product protection’’ means the protection that ‘‘work-product protection’’ means the protection that applicable law provides for tangible material (or its applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of intangible equivalent) prepared in anticipation of litigation or for trial.litigation or for trial.

Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver [Effective 12/1/2011]

The following provisions apply, in the circumstances set The following provisions apply, in the circumstances set out, to disclosure of a communication or information out, to disclosure of a communication or information covered by the attorney-client privilege or work-product covered by the attorney-client privilege or work-product protection.protection.

(a)(a) Disclosure Made in a Federal Proceeding or to a Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver. Federal Office or Agency; Scope of a Waiver. When the When the disclosure is made in a federal proceeding or to a federal disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an work-product protection, the waiver extends to an undisclosed communication or information in a federal or undisclosed communication or information in a federal or state proceeding only if:state proceeding only if:

Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver (Cont’d)[Effective 12/1/2011]

(1)(1) the waiver is intentional;the waiver is intentional;

(2)(2) the disclosed and undisclosed communications or the disclosed and undisclosed communications or information concern the same subject matter; andinformation concern the same subject matter; and

(3)(3) they ought in fairness to be considered together.they ought in fairness to be considered together.


(b)(b) Inadvertent Disclosure. Inadvertent Disclosure. When made in a federal When made in a federal proceeding or to a federal office or agency, the disclosure proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding does not operate as a waiver in a federal or state proceeding if:if:

(1)(1) the disclosure is inadvertent;the disclosure is inadvertent;

(2)(2) the holder of the privilege or protection took the holder of the privilege or protection took reasonable steps to prevent disclosure; andreasonable steps to prevent disclosure; and

(3)(3) the holder promptly took reasonable steps to rectify the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).Civil Procedure 26(b)(5)(B).


(c)(c) Disclosure Made in a State Proceeding.Disclosure Made in a State Proceeding. When the When the disclosure is made in a state proceeding and is not the subject of a disclosure is made in a state proceeding and is not the subject of a state-court order concerning waiver, the disclosure does not operate state-court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the disclosure:as a waiver in a federal proceeding if the disclosure:

(1)(1) would not be a waiver under this rule if it had been made in a would not be a waiver under this rule if it had been made in a federal proceeding; orfederal proceeding; or

(2)(2) is not a waiver under the law of the state where the disclosure is not a waiver under the law of the state where the disclosure occurred.occurred.


(d)(d) Controlling Effect of a Court Order.Controlling Effect of a Court Order. A federal A federal court may order that the privilege or protection is not court may order that the privilege or protection is not waived by disclosure connected with the litigation pending waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also before the court — in which event the disclosure is also not a waiver in any other federal or state proceeding.not a waiver in any other federal or state proceeding.

(e)(e) Controlling Effect of a Party Agreement.Controlling Effect of a Party Agreement. An An agreement on the effect of disclosure in a federal agreement on the effect of disclosure in a federal proceeding is binding only on the parties to the agreement, proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.unless it is incorporated into a court order.


(f)(f) Controlling Effect of this Rule.Controlling Effect of this Rule. Notwithstanding Notwithstanding Rules 101 and 1101, this rule applies to state proceedings Rules 101 and 1101, this rule applies to state proceedings and to federal court-annexed and federal court-mandated and to federal court-annexed and federal court-mandated arbitration proceedings, in the circumstances set out in the arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even rule. And notwithstanding Rule 501, this rule applies even if state law provides the rule of decision.if state law provides the rule of decision.

(g)(g) Definitions.Definitions. In this rule: In this rule:


(1)(1) “attorney-client privilege” means the protection “attorney-client privilege” means the protection that applicable law provides for confidential attorney-that applicable law provides for confidential attorney-client communications; andclient communications; and

(2)(2) “work-product protection” means the protection “work-product protection” means the protection that applicable law provides for tangible material (or its that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation intangible equivalent) prepared in anticipation of litigation or for trial.or for trial.

Rule 301. Presumptions in General in Civil Actions and Proceedings[Current Rule]

In all civil actions and proceedings not In all civil actions and proceedings not otherwise provided for by Act of Congress or by otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party these rules, a presumption imposes on the party against whom it is directed the burden of going against whom it is directed the burden of going forward with evidence to rebut or meet the forward with evidence to rebut or meet the presumption, but does not shift to such party the presumption, but does not shift to such party the burden of proof in the sense of the risk of burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.upon the party on whom it was originally cast.

Rule 301. Presumptions in a Civil Case Generally[Effective 12/1/2011]

In a civil case, unless a federal statute or these In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a rules provide otherwise, the party against whom a presumption is directed has the burden of going presumption is directed has the burden of going forward with evidence to rebut the presumption. forward with evidence to rebut the presumption. But this rule does not shift the burden of proof in But this rule does not shift the burden of proof in the sense of the risk of nonpersuasion; the burden the sense of the risk of nonpersuasion; the burden of proof remains on the party who had it of proof remains on the party who had it originally.originally.

Rule 302. Applicability of State Law in Civil Actions and Proceedings[Current Rule]

In all civil actions and proceedings, the In all civil actions and proceedings, the effect of a presumption respecting a fact which is effect of a presumption respecting a fact which is an element of a claim or defense as to which State an element of a claim or defense as to which State law supplies the rule of decision is determined in law supplies the rule of decision is determined in accordance with State law. accordance with State law.

Rule 302. Effect of State Law or Presumptions in a Civil Case[Effective 12/1/2011]

In a civil case, state law governs the effect of a In a civil case, state law governs the effect of a presumption regarding a claim or defense for which state presumption regarding a claim or defense for which state law supplies the rule of decision.law supplies the rule of decision.

Rule 201. Judicial Notice of Adjudicative Facts[Current Rule]

a)a) Scope of ruleScope of rule. This rule governs only judicial notice of . This rule governs only judicial notice of adjudicative facts.adjudicative facts.

b)b) Kinds of factsKinds of facts. A judicially noticed fact must be one . A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy determination by resort to sources whose accuracy cannot reasonably be questioned. cannot reasonably be questioned.

Rule 201. Judicial Notice of Adjudicative Facts (Cont’d)[Current Rule]c)c) When discretionaryWhen discretionary. A court may take judicial notice, . A court may take judicial notice,

whether requested or not.whether requested or not.

d)d) When mandatoryWhen mandatory. A court shall take judicial notice if . A court shall take judicial notice if requested by a party and supplied with the necessary requested by a party and supplied with the necessary information.information.

e)e) Opportunity to be heardOpportunity to be heard. A party is entitled upon . A party is entitled upon timely request to an opportunity to be heard as to the timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been request may be made after judicial notice has been taken.taken.

Rule 201. Judicial Notice of Adjudicative Facts (Cont’d)[Current Rule]

f)f) Time of taking noticeTime of taking notice. Judicial notice may be taken at . Judicial notice may be taken at any stage of the proceeding.any stage of the proceeding.

g)g) Instructing juryInstructing jury. In a civil action or proceeding, the . In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.as conclusive any fact judicially noticed.

Rule 201. Judicial Notice of Adjudicative Facts [Effective 12/1/2011]

(a)(a) Scope. Scope. This rule governs judicial notice of an This rule governs judicial notice of an adjudicative fact only, not a legislative fact.adjudicative fact only, not a legislative fact.

(b)(b) Kinds of Facts That May Be Judicially Noticed. Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to The court may judicially notice a fact that is not subject to reasonable dispute because it:reasonable dispute because it:

(1)(1) is generally known within the court’s is generally known within the court’s territorial jurisdiction; or territorial jurisdiction; or

(2)(2) can be accurately and readily determined can be accurately and readily determined from from sources whose accuracy cannot reasonably sources whose accuracy cannot reasonably be be questioned.questioned.

Rule 201. Judicial Notice of Adjudicative Facts (Cont’d)[Effective 12/1/2011]

(c)(c) Taking Notice. Taking Notice. At any stage of the proceeding, the At any stage of the proceeding, the court:court:

(1)(1) may take judicial notice on its own; ormay take judicial notice on its own; or

(2)(2) must take judicial notice if a party must take judicial notice if a party requests it and the court is supplied with requests it and the court is supplied with the necessary information.the necessary information.

Rule 201. Judicial Notice of Adjudicative Facts (Cont’d)[Effective 12/1/2011]

(d)(d) Opportunity to Be Heard.Opportunity to Be Heard. On timely request, a On timely request, a party is entitled to be heard on the propriety of taking party is entitled to be heard on the propriety of taking judicial notice and the nature of the noticed fact. If the court judicial notice and the nature of the noticed fact. If the court takes judicial notice before notifying a party, the party, on takes judicial notice before notifying a party, the party, on request, is still entitled to be heard.request, is still entitled to be heard.

(e)(e) Instructing the Jury.Instructing the Jury. In a civil case, the court must In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.or may not accept the noticed fact as conclusive.

evidence professor cioffi 3/15/2011 – 3/16/2011

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