The Nizkor Project: Remembering the Holocaust (Shoah)

Shofar FTP Archive File: people/m/mermelstein.mel/judicial-notice-01

From: (Yale F. Edeiken)
Newsgroups: alt.revisionism
Subject: Re: Clarification of a point about the
Date: 26 Apr 1997 18:53:43 GMT
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Message-ID: <5jtivn$>
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> (DvdThomas) writes:

>  >"WHEREAS, on October 9, 1981, the parties in dispute in the 
>  >litigation filed cross-motions for summary judgment resulting 
>  >in the court, per the Honorable Thomas T. Johnson, taking judicial 
>  >notice as follows:
>  >  "'Under Evidence Code Section 452(h), this court does take judicial
>  >  notice of the fact that Jews were gassed to death at the Auschwitz
>  >  Concentration Camp in Poland during the summer of 1944'" and 
>  >  "'It just simply is a fact that falls within the definition of Evidence
>  >  Code Section 452(h).  It is not reasonably subject to dispute.  And it 
>  >  is capable of immediate and accurate determination by resort to 
>  >  sources of reasonably indisputable accuracy.  It is simply a fact.'"
>  For those unfamiliar with the legal import of this, it means that the
>  judge decided up front not to allow IHR to mount any kind of defense. 
>  They could not question Mermelstein's claims, nor could they even explain
>  their own position because to do so would have been to challenge what the
>  judge, with no reference beyond his own opinion, had declared legally to
>  be unquestionable fact.

        I do not know the relevant law in California on this point, but as far as 
federal evidentiary law is concerned, this is not correct.  A finding of judicial notice 
raises a rebuttable presumption only and the objecting party may present evidence 
that the judicial notice is not correct.  Even if California is one of the few states that 
considers judicial notice as irrebutable, the IHR would have been able to present 
evidence one this point anyway.  It would have been done as an "offer of proof" to 
make a record for an appeals court.

>  This is the equivalent of a summary judgment, so
>  there was no trial, only judicial fiat. Had the group better represented
>  itself (they didn't show up for most of the court appearances) it is a
>  near certainty that a higher court would have disallowed this questionable
>  action which was more indicative of the personal bias of the judge than
>  anything else.  It's reminiscent of the procedures in German courts today.
>   There is no jury system there.

        There is no jury system in any country in continental Europe -- nor has there 
ever been.  If no objection to the finding was made and no record preserved, an 
appeals court would not have even considered the issue.


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