Intro to the Federal Rules of Evidence - 74

VIII. OTHERS

A. JUDICIAL NOTICE (ART. II)

1. Definition
Judicial notice is a process by which an adjudicative fact can established without formal evidentiary proof. Judicial notice is thus a substitute for evidence.

The FRE deal only with notice of adjudicative facts, not legislative facts or law.

In a jury trial, the judge must inform the jury by instructions of the fact to be noticed in order for notice to be effective.

2. Judicial notice of adjudicative facts (FRE 201)
a. Adjudicative facts v. Legislative facts
Adjudicative facts are facts that relate to the parties in a particular case - those that are necessary to prove or are used to prove . The term “adjudicative fact” is used in contradiction to the term “legislative fact.”

Legislative facts are facts which the judge considers as part of law-making function. For example, the Supreme Court relied on non-evidentiary studies by psychologist Kenneth B. Clark showing the psychological impact of segregation in Brown v. Board of Education, 347 U.S. 483 (1954).

b. Facts appropriate for judicial notice
i) Facts generally known in the community
The fact that the judge himself knows a fact to be so does not entitle him to take judicial notice of it if it is not truly common knowledge.

ii) Facts capable of immediate verification by sources of indisputable accuracy
Historical, geographic, physical, statistical, and scientific facts have all been noticed as verifiably certain. Facts recorded in the court’s own records are also frequently taken judicial notice.

c. Procedure
i) Party’s request
The judge must take judicial notice of any fact that meets the requirements, if requested by a party and supplied with the required info.

ii) Discretionary notice
The judge may take judicial notice on his own, without a request from a party.

d. Effect of judicial notice
i) Civil cases
In civil cases, judicial notice is conclusive. The jury must treat the fact as being so.

ii) Criminal cases
In criminal cases, it may be accepted as conclusive. It is due to a danger to violate a defendant’s constitutional right to a jury trial.

3. Judicial notice of law
Judicial notice of law means the determination of the law applicable to the case.

It is covered in the rules of procedure. See the Federal Rules of Civil Procedure (Rule 44.1); the Federal Rules of Criminal Procedure (Rule 22.1).