Rules of Evidence

Rulesof Evidence

Tableof Contents

Abstract 3

Evidentiary Privilege 4

Presumptions 7

Judicial Notice 11

References 15


Federal (FRE) provides lawyers with the essential kernel ofthe laws to consider when extracting and handling judicialproceedings, both civil and criminal. Accordingly, this paper willconsider Article II (Judicial notice), Article III (Presumptions ofcivil cases) and Article V (Privileges) to help understand theirrelevance to the criminal justice system. The articles comprise ofthe general rules that apply to proceedings in United States courtsand are interpreted so as to ensure fair administration ofproceedings, get rid of inexcusable delay and expense in attempts toascertain the truth and secure a fair determination(Merritt &amp Simmons, 2009).

Regardingprivileges the committee on the judiciary amended Article V andeliminated all Court’s Specific Rules on privileges. Instead, thecommittee, through Rule 501 put the law of privileges in its placeand provided that courts shall go on developing privileges under auniform standard which is applicable in civil and criminal cases.This was so as to recognize compelled disclosure of privateinformation as a legal interest.

ArticleIII stipulates the procedures and effects of use of presumptions tomeet the burden of proof in a criminal case. As outlined in theSenate Report No. 93-1277, Rule 301, 302 and 303(not approved)provide the guidelines on how to utilize presumptions in legalproceedings.The case CountyCourt of Ulster v. Allen, 442 U.S. 140, 1979provided a precedent on how presumptions are handled in criminalcases. Finally, Article II outlines the scope, application andimportance of judicial notices in the court system in Rule, JudicialNotice of Adjudicative facts.

EvidentiaryPrivilege:Whether or not the criminal justice system could operate without theexistence of privileges to evidence

Evidentiaryprivileges, found in article V of FRE, are rules of evidence thatallow certain persons to withhold information or to bar such evidencefrom being disclosed in a judicial proceeding without suffering anylegal consequences. They may be developed through common law orcreated by statute. Imwinkelried(1994) asserts thatprivileges are contrary and differing to the general rules where eachand every citizen has a responsibility to provide evidence in ajudicial proceeding and that all pertinent evidence is admissible.Moreover, they act as a stumbling block in attempts by the judicialsystem to look for the truth.

Conversely,privileges to evidence also exist to cater for importantrelationships and interests and consider being compelled to discloseconfidential information as inherently wrong. This is becausecompelling disclosure may bring about shame due to secrets beingrevealed and more so breach of entrusted trust and confidence.Forcing someone to testify against persons who enjoy these privilegesis therefore considered as an infringement on people’s rights. The rationale behind these privileges is that those protected ought tocommunicate freely without fear of compelled disclosure of theinformation.

Asa result, I deduce that the criminal justice system could not operatewithout existence of privileges to evidence. Such a situation wouldresult to gross violation and breach of private and public interestin confidentiality. In keeping with Grimm et al (2011), given thatcompelled testimony is unpopular and disapproved, it may berelinquished by the persons who they are meant to protect. Therefore,in many cases, operating the criminal justice system without themwould end up forcing the “holders” of the privilege to forcefullywaive it.

Notably,these near absolute privileges are also meant to protect theseindividuals against retribution and reprisal from those who had giventhem entrusted confidence. Though the privileges are a matter ofcontroversy, they are still not directly connected to thetruth-promoting principle. At first blush, one would presume thatthey undermine the fact finding process but it is important o notethat they are protected by the law and the fact-finder is not by anymeans obliged to compel testimony. Logically, it would therefore beinfringing and unworthy for the fact finder to rely on excludedevidence because it would end up being undependable and prejudicialwhether or not the privileges exist. Some of the evidentiaryprivileges include:

TheAttorney Client Privilege

Itis one of the most fundamental protections given to an individual inthe U.S and arguably the most powerful privilege in American Law. Aprivate attorney is given authority to protect clients against anyadversaries even the government itself. The privilege is vital sinceits gives any individual freedom to unreservedly communicate withhis/her legal counsel without fear of compelled disclosure. It givesthe clients an assurance in the attorney enabling them to make fullyfrank disclosures which ensures the attorney gives candid advice andeffective representation (Thornburg, 2007).

Theprivilege outlines that lacking informed aforementioned consent ofthe client, neither the attorney nor his agents can reveal to anythird parties the information whatsoever conveyed to them by a clientand whichever related information somehow acquired from the attorneycannot be brought into play as evidence in any given proceedingunless the client intends to commit a crime which could harm others.Markedly, information gotten from a third party is not applicable forthis privilege but material from a third party may be covered at athe client’s request.

Theinformation may have been revealed to the attorney through writing,speech or act performing e.g. showing a knife used in a crime.Finally, it is important to note that the client is the holder of theprivilege i.e. the client can waive the privilege by allowing theattorney to reveal the information or by doing publicly so but theattorney cannot reveal the information without prior informed consentof the client.


Confidentialcommunication between husband and wife was recognized as early asi934 in Wolflev. United States,291 U.S. 7 (1934). The rule has evolved over the years with moststates following the federal rule or at least some variation of it.The privilege outlines that the witness-spouse solely has theacquiescence to refuse to testify adversely the witness may neitherbe obligated to testify nor foreclosed from testifying. There existtwo types of spousal privileges: protection of confidentialcommunication between spouses and testimonial privileges which givethe spouse right to decline testifying against his or her spouse,make spouses ineffectual to testify and stop testimony from spouse.

InArizona’s Statutory rule, Ariz. Rev. State § 12-2231, spousaltestimonial privilege is visible where it states that “In a civilaction, a husband shall not be examined for or against his wifewithout her consent, nor a wife for or against his husband withouthis consent.” In addition, to demonstrate spousal confidentialityprivilege, South Dakota’s SD. Codified Law Ann. § 19-13-12stipulates that “a communication is termed to be confidential if itis made privately by any person to his or her spouse during theirmarriage and is not intended for disclosure to any other person.”


Theprivilege emerged due to the ‘seal of confession” necessitate dby the catholic church. One of the main reasons for its existence isto that full and truthful communications are made in spiritualrehabilitations due to trust in their confidentiality. Concededly,this privilege though recognized in almost every state is hard toapply due to existence of self-designated ministers and layofficials. This law gives the communicant holding power againsttestimony by a clergy member from a confession made.

Forinstance, a statute in Rhodes Island, R.I. Gen. Laws § 9-17-23,notes that no member of the clergy can testify regarding anyconfession made in his or her professional character without theconsent of the communicant. Notably, the clergy should be a dulyordained minister and the information should have been made throughconfidential communication and entrusted to him or her.

Presumptions:Useof Presumptions as Evidence to Meet the Burden Of Proof in a CriminalCase As Discussed In County Court of Ulster V. Allen, 442 U.S. 140,1979

Foundin article III of the Federal , presumptions arerules of law that allow a court of law to assume that a fact is trueuntil a preponderance of evidence rebuts that presumption. Sady(2005) note that presumptions are based on certain sets of apparentfacts which are paired with reasoning, individual rights, logic andestablished laws. Presumptions are used to meet the burden of proofwhereby in a civil case, they shift the burden of producing evidenceto the party whom they are directed to. The other side faces theburden of proving that the presumed fact is non-existent (Prakken&amp Sartor, 2006).

UlsterCounty Court v. Allen, 442 U.S. 140 (1979)

Therespondents of the case were three adult males and a sixteen year oldgirl who had been found in possession of two loaded handguns by thestopping officer. All the persons in the vehicle were convicted withillegal possession of firearms. Based on state statute, the courttold the jury that they could presume that all the occupants of thevehicle were in possession of the weapons merely because they werealso occupants. In contrast, the respondents petitioned that theirmere presence in the vehicle did not provide sufficient basis for thejury presume that they were in possession of firearms.

Themain issue was whether it was constitutional for New York StateStatute to allow presumption of illegal possession of firearms.However, the Supreme Court found that the ruling was constitutionaland it did not violate the rights of the defendants. The courtdeduced that rather than a mandatory one, a permissive evidentiarypresumption was constitutional. This is because the presence of therespondents in the car had rational affiliation and it also made thepossession a “more likely than not” presumption. Arguably, thecourt still violates respondents, rights because there wasn’tpreponderance of evidence to assert that everyone in the vehicleconsented possession of the firearms.

Effectsof presumptions in criminal proceedings

InCountyCourt of Ulster County v. Allen,the Supreme Court dealt with the constitutionality of presumptions incriminal cases. The court differentiated between permissible andmandatory presumptions. The court found that in a situation ofmandatory presumption, the burden of going forward is shifted withproduction of evidence. On the other hand, the court stated thatpermissible presumptions shifted neither the burden of persuasion northe burden of going forward. The burden of going forward is where oneparty is tasked with the duty of producing evidence concerning adefense or claim while the burden of persuasion is where a party isobligated to prove a criminal charge (Demougin&amp Fluet, 2006).

Thecounty court of Ulster outlined that the prosecution could, however,rely on substantiation that led to a permissible presumption eventhough the evidence did not solely establish guilt beyond areasonable doubt. In succeeding cases probing the application of apresumption in criminal proceedings, the court has exemplified themas compulsory and deduced that such presumptions areunconstitutional. This means that presumptions, though inevitable,should not be allowed to as evidence.

CurrentRule 301 found in Article III of the FRE, applies solely to civilcases and markedly, the congress did not adopt proposed Rule 303which was presumptions of criminal cases. For that reason, thereisn’t any federal rule to govern presumptions in criminal cases.This has brought about contradictory situations since though thelanguage suggests that only a part in a civil proceeding may use apresumption, certain circumstances in criminal cases are entitled topresumptions. This refutes the credibility of presumptions as asource of evidence and thus they should not be enough reason to causesomeone’s conviction of a crime.

Notably,the existing judicial interpretation imply that use of mandatorypresumptions in criminal cases ends up violating the rights of thecriminal defendant, recent Rule 301 does not provide for anopportunity of a modified interpretation. In keeping with CountyCourt of Ulster County v. Allen,in a situation where a presumption ascertains guilt beyond areasonable doubt, then the prosecution has the mandate to rely onthat presumption devoid of violating the outstanding the processrights of the criminal defendant.

Effectsof presumptions in civil proceedings

Accordingto Thayer-Wigmore Theory, presumptions are a mechanism of shiftingthe burden of going forward. The party to whom the presumption isdirected is tasked to put forward any evidence so as to show that thepresumed fact is non-existent i.e. the burden of production isshifted to the opposing party. As asserted by current Rule 301, theparty against the presumption is tasked with the duty of producingevidence to rebut the presumption.

Asapplied to the facts in CountyCourt of Ulster County v. Allen, thestatutory presumption in current Rule 301 is constitutional. Underthe circumstances outlined in the case, the jury was entirely correctis rebuffing the suggestion that the firearms were solely inpossession of Jane Doe sine the other respondents were fully aware oftheir presence and could use them. Nonetheless, it was upon therespondents to produce evidence to show that their presence in thevehicle had no rational connection and that it was unconstitutionalto use their presence in the vehicle as evidence in the case.

Afterthe original promulgation of article III of the Federal Rules ofViolence, the Supreme Court suggested that the burden of persuasionto the party against whom the presumption works. However, thisproposition was denied by the senate which adopted Thayer-Wigmoretheory which is the current Rule 301. AS viewed in Allen,all through the case and appeal, the burden of persuasion remainedwith the prosecution. Such a situation undermines the role of apresumption which does not necessarily ease the burden of proof inlegal proceedings which makes it ineffective.

Outstandingly,according to the senate report no. 93-1127, the committee on thejudiciary felt that house amendments on presumptions was ill-advisedand outlined that “presumption are not evidence, but ways ofdealing with evidence”. The committee also notes that juriesconsider presumptions when they have no direct evidence in a case, asituation which may end up confusing them in their duties.


Judicialnotice is a rule that allows a jury to accept a fact introduced intoevidence even though no evidence has been provided to prove it. Thisis because the fact is well-known and famous that it cannot bedoubted in light of reason. According to Abramowicz&amp Colby (2009), thejudicial notice is provided after the party aiming to rely on itrequests the jury to consider it. Found in Article II of Federal, judicial notice in federal courts is the generalrule that aims at saving the court time and resources in provingfacts that are matters of common knowledge such as a certain date wason a certain day of the week .

Federalrule 201 governs the judicial notice of adjudicative facts, notlegislative facts. Adjudicative facts are those that are related tothe matter in the court. FRE 201(b) outlines the facts that a judgecan accept as judicial notice: facts that are generally known withinthe territorial jurisdiction of the court e.g. location of malls andstreets and facts whose accuracy cannot be questioned since they areable to be accurately and readily determined.

Notably,judicial notice has hardly any effect on the burden of proof. Forinstance, in a civil trial, the fact taken as a judicial notice hasto be convincingly proved. Moreover, in criminal cases, the defendanthas a right to challenge any fact that is introduced to incriminatehim or her. This shows that other consequences follow theintroduction of a judicial notice and therefore it is for the courtto decide when to adapt what judicial notice.

Goldbergv. UBS AG, 2009 WL 3077118

Thecase was heard in the U.S. Eastern New York District Court regardinga civil suit under the Anti-Terrorism Act, 18 U.S. Code § 2333. Thejury faced a challenge in identifying the permissibility of taking ajudicial notice from Goldberg, the plaintiffs. The plaintiffrequested the jury to take judicial notice of a number of facts thatwere contained in UBS,’s privately-owned company website. Theinformation regarded UBS’s number of worldwide employees andoffices and the fact that UBS’s office in Israel is not licensed tosupply banking services in Israel.

Aman had been killed in a bus during a terrorist attack in Jerusalem.The plaintiffs claimed that UBS was liable for the death by virtue ofquite a few theories. For instance, the plaintiffs suggested that UBSdid transmit funds in aid of a terrorist organization which violatedthe Anti-Terrorism Act. UBS then quickly dismissed the claimsasserting that it was legally deficient. The judge declined to takethe judicial notice claiming that facts on the defendants ownwebsite, though in the public realm, were not from a source whoseaccuracy can’t be reasonably questioned.

Manyquestions have risen on whether or not judges should accept judicialnotice from contents of websites. However courts have acceptedjudicial notices from government operated sites as seen in Williamsv. Long,2008 WL 4848362but dismissed those from privately-maintained websites.

Leev. Weisman,505 U.S. 577 (1992)

Itwas the case in the United States Supreme Court regarding whether apublic school prayer at the school’s graduation violated the FirstAmendment. The case was an appeal by the school district regardinginvitation of a Jewish rabbi to deliver a prayer where the schoolsdistrict asserted that the prayer was doubly voluntary andnonsectarian. Parents of a student, Deborah Weisman, had won alitigation restricting school prayers on grounds that the school’sprincipal controlled and directed the content of prayers.

TheSupreme Court adopted psychological studies which were essential inhelping the judge make a ruling on the case. Justice Kennedy judicialnoticed the widespread assumption that “adolescents are oftenvulnerable to pressure by peers towards conformity that persuasionand influence is strongest in matters of social convention.”Notably, Justice Kennedy’s decision, which was backed by majorityof the jury, relied on three psychological studies to facilitate hisdecision. Outstandingly, the court took the judicial notice on itselfwhich shows how important a judicial notice is in helping effectiveoperation of a court system.

Brosterhousv. State Bar of California, 906 P.2d 1242 (1995)

RaymondBrosterhous et al were the plaintiffs of the case versus the StateBar of California who were the respondents. In an attempt to meet theburden of proof, the state bar of California requested the SupremeCourt in California to take judicial notice of eight cartons ofmaterials which contained records of an arbitration to strengthen itsres judicata argument. This occurred despite the fact that the statebar had not put forward any of those materials to the trial or lowerappellate courts.

TheSupreme Court did not utilize its special power to take judicialnotice of matters that are outside the record and refused to take thefacts as judicial notice. Arguably, this is due to the fact that somejudges and parties may not want to mishandle non-legal informationintroduced at the appellate level. Though there isn’t any evidenceor reason to believe that decisions made after ignoring available andauthoritative information are uniformly better, courts tend not toaccept information that had not been provided in lower courts.

Whyjudicial notice is needed for effective operation of the court system

Inreference to above cases, any party with requesting for a judicialnotice is entitled to be heard. This is because in light of reason,decisions made by a court should be made after considering allrelevant facts. This ascertains that the purpose of a judicial noticeshould not be undermined in any court system. Judicially notifiedfacts show presence of procedural fairness due to effectiveapplication of facts in the proceedings. Moreover, a judicial noticehelps avoid unfavorable reliance on just the domestic scheme of lawduring the case by a party.

Thecourt system sometimes finds it necessary to apply and utilizeresearches, as seen in Leev. Weisman, 505 U.S. 577 (1992), whichclearly indicates that the court system would malfunction ifjudicial notice is not allowed. Therefore, in respect of law andfact, judicial notices help bring about fair administration andjudgments in the legal system as well as eliminating probable delaysin ascertaining for the truth.


Abramowicz,M., &amp Colby, T. B. (2009). Notice-and-Comment JudicialDecisionmaking. TheUniversity of Chicago Law Review,965-1036.

Demougin,D., &amp Fluet, C. (2006). Preponderance of evidence. EuropeanEconomic Review,50(4),963-976.

Grimm,P. W., Bergstrom, L. Y., &amp Kraeuter, M. P. (2011). Federal ruleof evidence 502: Has it lived up to its potential?. Rich.JL &amp Tech.,17,8-16.

Imwinkelried,E. J. (1994). Hegelian Approach to Privileges under Federal Rule ofEvidence 501: The Restrictive Thesis, the Expansive Antithesis, andthe Contextual Synthesis, An. Neb.L. Rev.,73,511.

Merritt,D. J., &amp Simmons, R. (2009). LearningEvidence: From the Federal Rules to the Courtroom(p. 24). West.

Prakken,H., &amp Sartor, G. (2006). Presumptions and burdens of proof.

Sady,S. R. (2005). Guidelines Appeals: The Presumption of Reasonablenessand Reasonable Doubt. Fed.Sent. R.,18,170.

Thornburg,E. (2007). Sanctifying Secrecy: The Mythology of the CorporateAttorney-Client Privilege. NotreDame Law Review,69,158.