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Judicial Notice and evidence

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  • The Handyman
    How do you get an affidavit or sworn statement given under penalty of perjury into evidence. From what I have studied it seems that any document signed by a
    Message 1 of 11 , Jan 18, 2010
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      How do you get an affidavit or sworn statement given under penalty of perjury into evidence.  From what I have studied it seems that any document signed by a man or person cannot simply be offered or filed into evidence. It can be filed into the record but is the record evidence? I believe such a document requires the laying of a foundation before offering it into evidence.  Am I wrong? To lay a foundation the person with the signature on the document must be under oath giving testimony that the signature is his and the facts contained therein are true. Also can you request that the judge take judicial notice of an affidavit? Is there a  proper way to request that the judge take judicial notice?
    • windandthestone
      ... I am NOT an attorney, but have done pro se work at the federal level for my own employment suit, and will share the little I have gleaned from that
      Message 2 of 11 , Jan 25, 2010
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        --- In tips_and_tricks@yahoogroups.com, "The Handyman" <ebobie@...> wrote:
        >
        > How do you get an affidavit or sworn statement given under penalty of perjury into evidence. From what I have studied it seems that any document signed by a man or person cannot simply be offered or filed into evidence. It can be filed into the record but is the record evidence? I believe such a document requires the laying of a foundation before offering it into evidence. Am I wrong? To lay a foundation the person with the signature on the document must be under oath giving testimony that the signature is his and the facts contained therein are true. Also can you request that the judge take judicial notice of an affidavit? Is there a proper way to request that the judge take judicial notice?
        >


        I am NOT an attorney, but have done pro se work at the federal level for my own employment suit, and will share the little I have gleaned from that experience.

        I have filed several written affidavits with the court as part of a motion asking the court to do something, such as motion to include/exclude evidence, to rebut a position taken by the other party, or supplement a previously filed document. The motion will contain reference to the affidavit, and the original affidavit is attached as an Exhibit to the document which is filed at the court.

        Generally, an affidavit is part of your legal claim on a specific issue, and submitted as part of it, as opposed to something completely separate offered later in the case. If you believe this statement is essential to your case, you should ask the judge to take note of it in your motion, and explain why it is important. If you do need to subsequently add the affidavit to the record, you may file a motion to supplement a previously filed document, or as a "motion in limine," ask the judge to note the affidavit and move that it be entered as "evidence" into the "record."

        The "record" refers to all the legal documents and transcripts of a case, and any affidavit you submit will become part of it. "Evidence" is that part of the record which each party submits to help prove its claim. A "motion" is a request that the judge do something, even something as "small" as an order to accept an affidavit into evidence.

        This may be of some help:
        http://en.wikipedia.org/wiki/Motion_%28legal%29

        Best wishes,
        Melissa
      • The Handyman
        Thanks for the reply. I have some new developments and question for the group. The reason I wanted to know about getting an affidavit into evidence is because
        Message 3 of 11 , Jan 25, 2010
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          Thanks for the reply.  I have some new developments and question for the group. The reason I wanted to know about getting an affidavit into evidence is because I had to take the stand under oath and knew the judge would sustain every objection the opposition posed. I was challenging a civil defendant's right to be represented by an attorney in my case under the principle set forth in LASSITER V. DEPARTMENT OF SOCIAL SERVICES, 452 U.S. 18 (1981) which held, by necessary implication, that representation by a lawyer was not required for due process of law in civil cases. Therefore, the Supreme Court has conceded that representation by a lawyer is not required for due process of law in civil cases because no general right to such representation exists in American law. The Supreme Court reached this conclusion because the Constitution for the United States of America, the Supreme Law of the Land, doesn't say anything about a civil defendant having a right to representation. The appearance of such attorney in my case was timely and properly challenged  via a Dilatory Exception of no right to representation as required by C.C.P. Article 700. Things played out as expected but I did get two of my affidavits into evidence.  Now  my concern is  will the appellate court review the affidavits as they do all evidence or do I need to bring up their contents in the appeal brief? This was a test and it may be a good way to get your issues into evidence without a hundred objections and some BS reason for the objection.The lawyer was silent in court. It was his burden to prove his client had a right to be represented and that he had a right to represent. He never said one word and the judge simple denied relief stating: "What will I do with all these lawyers if I rule in your favor?  Where will they earn a living?" I was tempted to respond with sarcasm but held back.
          ----- Original Message -----
          Sent: Monday, January 25, 2010 6:38 PM
          Subject: [tips_and_tricks] Re: Judicial Notice and evidence

           





          I am NOT an attorney, but have done pro se work at the federal level for my own employment suit, and will share the little I have gleaned from that experience.

          I have filed several written affidavits with the court as part of a motion asking the court to do something, such as motion to include/exclude evidence, to rebut a position taken by the other party, or supplement a previously filed document. The motion will contain reference to the affidavit, and the original affidavit is attached as an Exhibit to the document which is filed at the court.


        • Gary
          As I remember it, a Motion in Limine is a motion to exclude predjudicial evidence, not one to enter evidence. Gary ... From: windandthestone To:
          Message 4 of 11 , Jan 25, 2010
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            As I remember it, a Motion in Limine is a motion to exclude predjudicial evidence, not one to enter evidence.
             
            Gary
             
            ----- Original Message -----
            Sent: Monday, January 25, 2010 6:38 PM
            Subject: [tips_and_tricks] Re: Judicial Notice and evidence

             



            --- In tips_and_tricks@ yahoogroups. com, "The Handyman" <ebobie@...> wrote:
            >
            If you do need to subsequently add the affidavit to the record, you may file a motion to supplement a previously filed document, or as a "motion in limine," ask the judge to note the affidavit and move that it be entered as "evidence" into the "record."

          • Legisman
            Affidavits are admissible to support pleadings. Otherwise affidavits to prove the truth of the statements contained in them are hearsay. Therefore, as a
            Message 5 of 11 , Jan 26, 2010
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              Affidavits are admissible to support pleadings. Otherwise affidavits to prove the truth of the statements contained in them are hearsay. Therefore, as a general rule, affidavits are only admissible as substantive evidence when they fall within one of the standard hearsay exceptions. For example, a party's admission made in an affidavit may be admissible.

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              --- On Mon, 1/25/10, windandthestone <mmgemmel@...> wrote:



              > How do you get an affidavit or sworn statement given under penalty of perjury into evidence. From what I have studied it seems that any document signed by a man or person cannot simply be offered or filed into evidence. It can be filed into the record but is the record evidence? I believe such a document requires the laying of a foundation before offering it into evidence. Am I wrong? To lay a foundation the person with the signature on the document must be under oath giving testimony that the signature is his and the facts contained therein are true. Also can you request that the judge take judicial notice of an affidavit? Is there a proper way to request that the judge take judicial notice?
            • windandthestone
              So sorry it s taken me so long to reply. As far as Motions in Limine go, the insurance company s lawyer used them to introduce evidence that I am not a
              Message 6 of 11 , Mar 30, 2010
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                So sorry it's taken me so long to reply. As far as Motions in Limine go, the insurance company's lawyer used them to introduce "evidence" that I am not a reliable truthful person. He was smearing me on a misdemeanor that happened in 1992! Sadly, this is in federal court, and the judge has not replied for over a year!! Both sides have submitted notices of over due rulings -- here the judge has 150 days to rule, but it's not a mandate. This case is already 5 years old, and we are still in dispositive motions. WAAA.

                Thanks for the reply -- I am sure your help will be needed once the judge wakes up. :)



                --- In tips_and_tricks@yahoogroups.com, "Gary" <gary2666@...> wrote:
                >
                > As I remember it, a Motion in Limine is a motion to exclude predjudicial evidence, not one to enter evidence.
                >
                > Gary
                >
                > ----- Original Message -----
                > From: windandthestone
                > To: tips_and_tricks@yahoogroups.com
                > Sent: Monday, January 25, 2010 6:38 PM
                > Subject: [tips_and_tricks] Re: Judicial Notice and evidence
                >
                >
                >
                >
                >
                > --- In tips_and_tricks@yahoogroups.com, "The Handyman" <ebobie@> wrote:
                > >
                > If you do need to subsequently add the affidavit to the record, you may file a motion to supplement a previously filed document, or as a "motion in limine," ask the judge to note the affidavit and move that it be entered as "evidence" into the "record."
                >
              • windandthestone
                ... the group. The reason I wanted to know about getting an affidavit into evidence is because I had to take the stand under oath and knew the judge would
                Message 7 of 11 , Mar 30, 2010
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                  --- In tips_and_tricks@yahoogroups.com, "The Handyman" <ebobie@...> wrote:
                  >
                  > Thanks for the reply. I have some new developments and question for the group. The reason I wanted to know about getting an affidavit into evidence is because I had to take the stand under oath and knew the judge would sustain every objection the opposition posed. I was challenging a civil defendant's right to be represented by an attorney in my case under the principle set forth in LASSITER V. DEPARTMENT OF SOCIAL SERVICES, 452 U.S. 18 (1981) which held, by necessary implication, that representation by a lawyer was not required for due process of law in civil cases. Therefore, the Supreme Court has conceded that representation by a lawyer is not required for due process of law in civil cases because no general right to such representation exists in American law. The Supreme Court reached this conclusion because the Constitution for the United States of America, the Supreme Law of the Land, doesn't say anything about a civil defendant having a right to representation. The appearance of such attorney in my case was timely and properly challenged via a Dilatory Exception of no right to representation as required by C.C.P. Article 700. Things played out as expected but I did get two of my affidavits into evidence. Now my concern is will the appellate court review the affidavits as they do all evidence or do I need to bring up their contents in the appeal brief? This was a test and it may be a good way to get your issues into evidence without a hundred objections and some BS reason for the objection.The lawyer was silent in court. It was his burden to prove his client had a right to be represented and that he had a right to represent. He never said one word and the judge simple denied relief stating: "What will I do with all these lawyers if I rule in your favor? Where will they earn a living?" I was tempted to respond with sarcasm but held back.
                  > ----- Original Message -----
                  > From: windandthestone
                  > To: tips_and_tricks@yahoogroups.com
                  > Sent: Monday, January 25, 2010 6:38 PM
                  > Subject: [tips_and_tricks] Re: Judicial Notice and evidence
                  >
                  >
                  >

                  > I am NOT an attorney, but have done pro se work at the federal level for my own employment suit, and will share the little I have gleaned from that experience.
                  >
                  > I have filed several written affidavits with the court as part of a motion asking the court to do something, such as motion to include/exclude evidence, to rebut a position taken by the other party, or supplement a previously filed document. The motion will contain reference to the affidavit, and the original affidavit is attached as an Exhibit to the document which is filed at the court.
                  >

                  Wow -- I can't imagine a judge doing that.  Seems like that could be appealed at the end of the case, and ask for a more studied ruling.  Since it's been a while, an update of your situation would be great.  Thanks for sharing this.  I'd love to learn more.  Are there any files you could upload?  Thanks, Melissa
                • The Handyman
                  In January 2010 I tried entering affidavits into evidence for the first time. After studying procedure on how it should be done I took the stand and stated
                  Message 8 of 11 , Apr 5, 2010
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                    In January 2010 I tried entering affidavits into evidence for the first time.  After studying procedure on how it should be done I took the stand and stated that the affidavits were signed by me and everything in them were were true and subject to perjury. The Judge accepted them and they were placed into evidence but I don't think he gave weight to  their contents. The case is now on appeal and I await the appellate decision to see if they consider the affidavits. I found the process of pro se value to get a lot more into the record and not spend a whole lot of time on the stand asking yourself questions and then answering them.  I gave the defendant a copy of each affidavit in case he wanted to cross-examine me and he only asked one question. I'm not sure but was told that if an affidavit that is not traversed is taken as absolute. I have never seen a motion in limine argued or produce any  favorable pro se results.  If anyone has a motion in limine that worked I would like to see some evidence. Most seem to ask for a dismissal.
                    ----- Original Message -----
                    Sent: Tuesday, March 30, 2010 5:03 PM
                    Subject: [tips_and_tricks] Re: Judicial Notice and evidence

                     



                    So sorry it's taken me so long to reply. As far as Motions in Limine go, the insurance company's lawyer used them to introduce "evidence" that I am not a reliable truthful person. He was smearing me on a misdemeanor that happened in 1992! Sadly, this is in federal court, and the judge has not replied for over a year!! Both sides have submitted notices of over due rulings -- here the judge has 150 days to rule, but it's not a mandate. This case is already 5 years old, and we are still in dispositive motions. WAAA.

                    Thanks for the reply -- I am sure your help will be needed once the judge wakes up. :)

                    --- In tips_and_tricks@ yahoogroups. com, "Gary" <gary2666@.. .> wrote:
                    >
                    > As I remember it, a Motion in Limine is a motion to exclude predjudicial evidence, not one to enter evidence.
                    >
                    > Gary
                    >
                    > ----- Original Message -----
                    > From: windandthestone
                    > To: tips_and_tricks@ yahoogroups. com
                    > Sent: Monday, January 25, 2010 6:38 PM
                    > Subject: [tips_and_tricks] Re: Judicial Notice and evidence
                    >
                    >
                    >
                    >
                    >
                    > --- In tips_and_tricks@ yahoogroups. com, "The Handyman" <ebobie@> wrote:
                    > >
                    > If you do need to subsequently add the affidavit to the record, you may file a motion to supplement a previously filed document, or as a "motion in limine," ask the judge to note the affidavit and move that it be entered as "evidence" into the "record."
                    >

                  • gary2666@centurytel.net
                    Could you post a copy of one of those motions? I have never seen a Motion in Limine used for anything except to EXCLUDE evidence. And Black s Sixth say it is
                    Message 9 of 11 , Apr 5, 2010
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                      Could you post a copy of one of those motions?  I have never seen a Motion in Limine used for anything except to EXCLUDE evidence.  And Black's Sixth say it is a pretrial motion to keep opposing counsel from interjecting or referring to evidence that might be prejudicial.  I have never heard of it being used to introduce evidence.  It appears that you should be filing a Motion in Limine to exclude any reference to this 1992 incident as being prejudicial and irrelevant.
                       
                      Gary

                      Sent: Tuesday, March 30, 2010 5:03 PM
                      Subject: [tips_and_tricks] Re: Judicial Notice and evidence

                       



                      So sorry it's taken me so long to reply. As far as Motions in Limine go, the insurance company's lawyer used them to introduce "evidence" that I am not a reliable truthful person. He was smearing me on a misdemeanor that happened in 1992! Sadly, this is in federal court, and the judge has not replied for over a year!! Both sides have submitted notices of over due rulings -- here the judge has 150 days to rule, but it's not a mandate. This case is already 5 years old, and we are still in dispositive motions. WAAA.

                      Thanks for the reply -- I am sure your help will be needed once the judge wakes up. :)

                    • gary2666@centurytel.net
                      I have actually only done one Motion in Limine for someone and I can t say if it worked or not as the judge told the plaintiff that he would rule on the motion
                      Message 10 of 11 , Apr 8, 2010
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                        I have actually only done one Motion in Limine for someone and I can't say if it worked or not as the judge told the plaintiff that he would rule on the motion just before seating the jury (it was a credit card case against a third party debt purchaser) and he gave them 15 minutes to decide what they wanted to do.  When they came back into court, they withdrew.  During discovery, the plaintiff had failed to timely answer a discovery request and a motion to have the admissions declared as admitted was granted.  Among the admissions was one I always include, it asks them to admit that the defendant owes them nothing.  Since these were declared as admitted, the Motion in Limine was to exclude the plaintiff from presenting any evidence at the trial that would contradict their admissions.  Pretty difficult to go forward with a debt collection suit when they have admitted that you don't owe them anything.  I can only guess that the plaintiff thought the judge would grant the motion or they would not have withdrawn.  I assume the plaintiff was not happy with the outcome as he was observed waving his arms and yelling at his attorney.
                         
                        The judge in that case said he had never seen a Motion in Limine from a Pro Se.  I'm glad they withdrew as I'm not sure the lady I was writing for could have held it together and not screwed up through a jury trial.  She told a lawyer friend of the family that she was going to be doing a jury trial Pro Se and he laughed at her.  Much better to beat them before trial.
                         
                        Gary

                        Sent: Monday, April 05, 2010 5:40 AM
                        Subject: Re: [tips_and_tricks] Re: Judicial Notice and evidence

                         

                        In January 2010 I tried entering affidavits into evidence for the first time.  After studying procedure on how it should be done I took the stand and stated that the affidavits were signed by me and everything in them were were true and subject to perjury. The Judge accepted them and they were placed into evidence but I don't think he gave weight to  their contents. The case is now on appeal and I await the appellate decision to see if they consider the affidavits. I found the process of pro se value to get a lot more into the record and not spend a whole lot of time on the stand asking yourself questions and then answering them.  I gave the defendant a copy of each affidavit in case he wanted to cross-examine me and he only asked one question. I'm not sure but was told that if an affidavit that is not traversed is taken as absolute. I have never seen a motion in limine argued or produce any  favorable pro se results.  If anyone has a motion in limine that worked I would like to see some evidence. Most seem to ask for a dismissal.
                         
                      • The Handyman
                        My reply button is not working so I must repost. windandthestone said:Wow -- I can t imagine a judge doing that. Seems like that could be appealed at the end
                        Message 11 of 11 , Apr 9, 2010
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                          My reply button is not working so I must repost. 
                           
                           windandthestone said:Wow -- I can't imagine a judge doing that.  Seems like that could be appealed at the end of the case, and ask for a more studied ruling.  Since it's been a while, an update of your situation would be great.  Thanks for sharing this.  I'd love to learn more.  Are there any files you could upload?  Thanks, Melissa
                           
                          "The Handyman" <ebobie@...> wrote:
                           
                          I'm not sure how this will play out but many believe the defendant has a contractual right to be represented.  My counter is that they may have a contractual right to be assisted or receive legal advice but no man has a right to be represented because representation is a fiction according to Bouvier's Law Dictionary :
                           

                          :”REPRESENTATION OF PERSONS; A fiction of the law, the effect of which is to put the representative in

                           the place, degree, or right of the person represented. It was invented by the commentators and doctors of

                          the civil law. Toull. Dr. Civ. Fr. liv. 3, t. 1, c. 3, n. 180. Vide Ayl. Pand. 397; Dall. Diet. mot Succession, art. 4, § 2.

                          Question presented for review:

                          Can a fiction represent substance? Is not a man substance? But all attornieys will decide the issue. One attorney has published: 

                           

                           Jeremy Bentham sharply criticized the notion of legal fictions, saying that "fictions are to law what fraud is to
                           trade". 

                           You cannot have a fictional attorney invade a man’s court and

                          pretend to be a man or stand in place of a man, or state the man’s thoughts. The right to be

                          represented may be a right in other countries but there is no such right in the  United States . The royal

                           prerogative of admitting lawyers to practice did not devolve upon any other than the people in the several

                          States and is not delegated to Government.  Fontain v. Ravenel, 17 How. 369, 384,   

                          Would like to see others  use this to see the results.

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