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Virginia Judicial Notice

Judicial Notice

Brien Roche

Virginia Judicial Notice-Shortcut

Judicial notice is a form of a judicial shortcut.  What it means is that there will be no need for formal proof where judicial notice is taken of something.  Formal proof would simply be a waste of time in that instance.  Formal proof may mean two things: formal authentication of the document; and also compliance with the business record exception in order to eliminate any hearsay objection.  However in looking at the potential hearsay objection, even if the so-called “business records exception” eliminates that level of hearsay, there could be another level of hearsay objections based upon a document containing opinions and/or containing statements that are not admissible due to lack of foundation, lack of relevancy and potentially other reasons.   

Judicial notice permits a court to determine the existence of a fact without formal proof tending to support that fact.  Scafetta v. Arlington County, 13 Va. App. 646, 648 (1992)

The elimination of formal proof means that there does not have to be testimony or other formal evidence.

The doctrine of judicial notice in Virginia is not limited just to matters of fact.  It may apply to matters of law and may in some instances apply where law is being applied to fact or vice versa.  

Virginia Judicial Notice-Discretion

There may be an element of judicial discretion in regards to judicial notice.  In other words since judicial notice is a substitute for evidence, the improper refusal of the trial court to take judicial notice is a harmless error because the evidence would have shown the same thing.  Scafetta at 648-649.

Take an example of a death certificate.  Under Virginia Code § 8.01-390, it “…shall be received as prima facie evidence…” provided it is property authenticated.  Furthermore a death certificate contains an opinion as to the cause of death.  A death certificate is a governmental record.  Even though it may be signed by a medical doctor who is not a government employee, it is a government form.  It’s required by law.  It’s maintained by a governmental agency.  

Prima Facie Evidence

Under this Code section, whatever evidence is being admitted, it’s simply being admitted as prima facie evidence.  What that means is that the evidence creates a presumption.  However if the opposing party however wishes to present contrary evidence, they may do so.  If they do so then it becomes a question for the fact-finder (judge or jury) to make a decision as to what the facts are.  If the opposing party presents no contrary evidence, then the prima facie evidence stands.  

The court could exercise discretion as to whether it admits a death certificate into evidence where cause of death is an issue.  However that would seem to be violative of Virginia Code § 8.01-390 which uses the word “shall”.

“Shall” however is not always mandatory.  

Judicial Notice- Call Us

Call, or contact us for a free consult. Also for more info on judicial notice see the Wikipedia pages. Also see the post on this site dealing with dameges issues.

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Virginia Judicial Notice

Judicial Notice

Brien Roche

Virginia Judicial Notice-Shortcut

Judicial notice is a form of a judicial shortcut.  What it means is that there will be no need for formal proof where judicial notice is taken of something.  Formal proof would simply be a waste of time in that instance.  Formal proof may mean two things: formal authentication of the document; and also compliance with the business record exception in order to eliminate any hearsay objection.  However in looking at the potential hearsay objection, even if the so-called “business records exception” eliminates that level of hearsay, there could be another level of hearsay objections based upon a document containing opinions and/or containing statements that are not admissible due to lack of foundation, lack of relevancy and potentially other reasons.   

Judicial notice permits a court to determine the existence of a fact without formal proof tending to support that fact.  Scafetta v. Arlington County, 13 Va. App. 646, 648 (1992)

The elimination of formal proof means that there does not have to be testimony or other formal evidence.

The doctrine of judicial notice in Virginia is not limited just to matters of fact.  It may apply to matters of law and may in some instances apply where law is being applied to fact or vice versa.  

Virginia Judicial Notice-Discretion

There may be an element of judicial discretion in regards to judicial notice.  In other words since judicial notice is a substitute for evidence, the improper refusal of the trial court to take judicial notice is a harmless error because the evidence would have shown the same thing.  Scafetta at 648-649.

Take an example of a death certificate.  Under Virginia Code § 8.01-390, it “…shall be received as prima facie evidence…” provided it is property authenticated.  Furthermore a death certificate contains an opinion as to the cause of death.  A death certificate is a governmental record.  Even though it may be signed by a medical doctor who is not a government employee, it is a government form.  It’s required by law.  It’s maintained by a governmental agency.  

Prima Facie Evidence

Under this Code section, whatever evidence is being admitted, it’s simply being admitted as prima facie evidence.  What that means is that the evidence creates a presumption.  However if the opposing party however wishes to present contrary evidence, they may do so.  If they do so then it becomes a question for the fact-finder (judge or jury) to make a decision as to what the facts are.  If the opposing party presents no contrary evidence, then the prima facie evidence stands.  

The court could exercise discretion as to whether it admits a death certificate into evidence where cause of death is an issue.  However that would seem to be violative of Virginia Code § 8.01-390 which uses the word “shall”.

“Shall” however is not always mandatory.  

Judicial Notice- Call Us

Call, or contact us for a free consult. Also for more info on judicial notice see the Wikipedia pages. Also see the post on this site dealing with dameges issues.
Contact Us For A Free Consultation

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