Evidence:

1.  Section 641 of the California Evidence Code, classified as a Thayer presumption, provides that "[a] letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail."  Suppose a California tenant slips in the hallway of her apartment building and breaks her collarbone.  She files a diversity suit against her out-of-state landlord for medical costs and lost wages.  To prove negligence, the tenant testifies that three weeks before the accident she mailed the landlord a correctly addressed, properly stamped letter complaining that the hallway was slippery. The landlord testifies he never received the letter.  The tenant asks the judge to instruct the jury that, if they conclude that her letter was correctly addressed and properly mailed, they must find that it was received in the ordinary course of the mail.  Should the judge give the instruction?

2.  Section 667 of the California Evidence Code, classified as a Morgan presumption, provides that "[a] person not heard from in five years is presumed to be dead."  Suppose a testator in California leaves his house to his son, Saul, for the duration of Saul's life, but provides that on Saul's death the property will go to the State of California.  Six years later the state sues Saul's wife, who is living in the house, for possession.  The state introduces evidence that no one has heard from Saul for the past five years. T he defendant testifies that she received a telephone call from Saul eight months ago.  What instruction, if any, should the judge give the jury regarding the presumption?

3.  Section 636 of the California Evidence Code, classified as a Thayer presumption, provides that "[t]he payment of earlier rent or installments is presumed from a receipt for later rent or installments."  Suppose a California construction company buys a bulldozer from an out-of-state vendor.  The bulldozer repeatedly breaks down, and five years after the purchase the construction company brings a federal diversity action against the vendor, alleging breach of warranty.  The plaintiff introduces the purchase contract, which calls for payment in four annual installments, and a receipt for payment of the fourth installment.  The defendant claims in its pleadings that the first three installments were never paid, but introduces no evidence to this effect and does not challenge the authenticity of the receipt.  Is the plaintiff entitled to a directed verdict on the question of its payments for the bulldozer?

1. A federal statute passed in 1984 purports to impose on criminal defendants "the burden of proving the defense of insanity by clear and convincing evidence." 18 U.S.C. §17(b).  Is this statute constitutional?

2. In January 1980, police in Santa Cruz, California, executed a search warrant at a second-hand store called Betty Boop's Junque Shop and found a variety of stolen property.  The proprietors of the store were prosecuted for receiving stolen property.  The elements of the offense are receiving property that has been stolen, and knowing the stolen nature of the property at the time of receiving it.  The trial judge instructed the jury on the elements of the offense, the presumption of innocence, and the definition of reasonable doubt.
      Relying on a statutory presumption, the judge also instructed the jury that if it found (1) that the defendants were dealers in second-hand merchandise, (2) that they had bought or received property under circumstances that should have prompted a reasonable inquiry regarding whether the seller had a legal right to sell it, and (3) that they had failed to make such an inquiry, "then you shall presume that defendants bought or received such property knowing it to have been stolen unless from all the evidence you have reasonable doubt that defendants knew the property was stolen."
      When the jury asked regarding the presumption, the judge responded as follows: "There are two kinds of presumptions.  One is a conclusive presumption that if you have the presumption, that's it, you don't go any further.  This isn't that kind of presumption.  It's what's called a rebuttable presumption, because you have the presumption, presume to know that the property was stolen, but they can go forward and raise a reasonable doubt that they actually knew that.  So you still do have that question.  Basically, it boils down to are you satisfied that they acquired the property or retained the property knowing it was stolen, or do you have a reasonable doubt."
      Did these instructions violate the Federal Constitution?  (The California Supreme Court gave its answer in People v. Roeder, 189 Cal. Rptr. 501 (1983).)

1.  Suppose a calendar manufacturer sues a rival for patent infringement, based in part on the fact that the rival's calendar, like the one the plaintiff has recently patented, is secured to the wall by a punched hole at the top.  The defendant asks the court to take judicial notice of the fact that calendars have had this feature for many years, and the plaintiff objects.  How should the court rule?

2.  Suppose a spectator at a minor league baseball game gets hit by a line drive and sues the ballpark for negligence, alleging failure to post adequate warnings.  The ballpark asks the judge to take judicial notice of the fact that the hazard of being hit by a ball at a professional baseball game is well known, and the plaintiff objects.  How should the judge rule?

3.  Suppose a criminal defendant moves to suppress evidence found during a patdown search and alleges the police lacked reason to suspect he was armed.  The government proves the police had reason to suspect the defendant was selling cocaine and asks the judge to take judicial notice of the fact that drug dealers often carry weapons.  The defendant objects.  How should the judge rule?

4.  In a prosecution for robbery of a federally insured bank, suppose the government asks the judge to instruct the jury that Bank of America—a branch of which the defendant is alleged to have robbed—is federally insured.  The defendant objects.  What instruction, if any, should the judge give?  What if the defendant is alleged to have robbed a branch of Coast Federal Bank, and the government asks the court to take judicial notice of the fact that federal law requires any bank with "Federal" in its name to be federally insured?

5.  For purposes of determining the admissibility of DNA identification evidence, can a court take judicial notice of the general reliability of the technology employed, without holding an evidentiary hearing?  (Several courts have said yes.  See United States. v. Beasley, 102 F.3d 1440, 1447 (8th Cir. 1996); United States v. Martinez, 3 F.3d 1191, 1197 (8th Cir.1993), cert. denied, 510 U.S. 1062 (1994); United States v. Jakobetz, 955 F.2d 786, 799 (2d Cir. 1992); United States v. Shea, 957 F. Supp. 331, 347 (D.N.H. 1997), aff'd, 159 F.3d 37 (1st Cir. 1998).

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