This Article contends that the predominant practice of federal courts of completely removing the jurisdictional element from the jury violates the Sixth Amendment right to jury trial and Rule 201. Part II of this Article discusses the problems raised by binding judicial notice of the jurisdictional element of federal criminal offenses. Part III gives an overview of the factual, constitutional, and statutory prerequisites for land to fall within the special territorial jurisdiction of the United States. Part IV briefly describes the circumstances in which courts may properly take judicial notice under Rule 201. Part V discusses the requirements for judicial notice in criminal cases and the legislative history and purpose of Rule 201(g). Part VI examines selected criminal cases regarding judicial notice of jurisdictional facts. Part VII examines Supreme Court precedent on the proper division between the judge and the jury in criminal trial and explains why appellate courts should not apply the harmless error standard of review where the trial court has effectively directed a verdict in favor of the prosecution. I conclude in Part VIII by providing a proposal whereby federal courts can respect the Sixth Amendment and Rule 201(g) while still attending to the practicalities of real-world criminal litigation.
William M. Carter Jr.,
Trust Me, I'm a Judge: Why Binding Judicial Notice of Jurisdictional Facts Violates the Right to Jury Trial,
68 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol68/iss3/3