Brief of Professor Haley Proctor as Amicus Curiae Supporting Petitioner in United States v. Silvers

Our legal system distinguishes between&nbsp;legislative and adjudicative facts. Adjudicative facts&nbsp;include those facts that establish the&nbsp;elements of a criminal charge or a particular party’s claim&nbsp;for relief.&nbsp;&nbsp;Legislative facts, by contrast,&nbsp;are trickier to define. Properly understood, they comprise&nbsp;only those facts that provide a premise for a ruling on an&nbsp;issue of law. For example, did the legislature repeal the&nbsp;criminal statute under which the defendant has been&nbsp;charged? But the lower courts have adopted a host of&nbsp;vague and contradictory definitions that reach well&nbsp;beyond that category.<br><br>This confusion has constitutional implications in&nbsp;criminal cases. A court may, consistent with the&nbsp;Constitution, instruct the jury on true legislative facts&nbsp;when it is discharging its duty to instruct the jury on the&nbsp;law. But the Constitution protects a criminal defendant’s&nbsp;right to have a jury find all adjudicative facts that support&nbsp;a criminal conviction. Consistent with that constitutional&nbsp;division of labor, Federal Rule of Evidence 201 requires a&nbsp;criminal court that takes judicial notice of an adjudicative&nbsp;fact to “instruct the jury that it may or may not accept the&nbsp;noticed fact as conclusive,” while exempting “legislative&nbsp;facts” from its provisions. Unfortunately, courts have used this exemption for&nbsp;“legislative facts” to take latitude in instructing&nbsp;juries conclusively on facts that a jury was&nbsp;entitled to consider.&nbsp;That is what happened in this case, and the Court should take the opportunity to correct this practice and clarify the concept of legislative facts.