§ 44.01   Introduction [621]

 

Judicial notice is a short-cut.  The party with the burden of proving an adjudicative fact typically must introduce evidence to establish that fact.  If, however, a fact is indisputable, the court may, and in some instances must, accept the fact as established (judicially noticed) and thereby dispense with the requirement of evidentiary proof.

 

§ 44.02   Adjudicative & Legislative Facts [621-22]

 

Rule 201 applies only to judicial notice of adjudicative facts.  The term “adjudicative fact” is used in contradistinction to the term “legislative fact.”  Adjudicative facts are what we normally think of when we talk about the “facts of a case.”

 

§ 44.03   Types of Facts Subject to Judicial Notice [623-28]

 

Two kinds of adjudicative facts are subject to judicial notice: (1) facts generally known within the territorial jurisdiction of the trial court; and (2) facts capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.  Facts that fit these two categories, however, are proper subjects for judicial notice only if they are “not subject to reasonable dispute.”

 

                        [A]       Indisputability Requirement

 

By limiting judicial notice to indisputable facts, Rule 201 adopts Professor Morgan’s view of judicial notice, which is based on the judicial function of resolving disputes.  Two consequences follow from Morgan’s theory.  First, once a fact is judicially noticed by the court, evidence tending to establish or rebut that fact is inadmissible.  Second, in civil cases the jury must accept the judicially noticed fact and is so instructed.  The rule deviates from the Morgan theory in one respect.  Division (g) of the rule provides that in criminal cases the jury shall be instructed that it is are not bound to accept a judicially noticed fact.

 

                        [B]       “Generally Known Facts”  

 

Facts in this category need only to be generally known within the “territorial jurisdiction” of the court.   “Generally known facts,” for purposes of Rule 201(b), must be distinguished from facts that a judge personally knows; only the former are properly the subject of judicial notice.

 

                        [C]       “Accurately & Readily Determinable” Facts

 

Historical, geographic, physical, political, statistical, and scientific facts have all been noticed as verifiably certain.  In deciding whether a fact is capable of ready and accurate determination, a court may rely only upon sources “whose accuracy cannot reasonably be questioned.”  The source itself need not be admissible in evidence.

 

§ 44.04   Procedural Issues [628-31]

 

                        [A]       Discretionary & Mandatory Judicial Notice

 

Rule 201(c) permits a court to take judicial notice sua sponte.  Rule 201(d) requires the court to take judicial notice if one of the parties so requests. 

 

                        [B]       Opportunity to be Heard

 

Rule 201(e) entitles a party, upon timely request, to an opportunity to be heard concerning both the propriety of taking judicial notice and the tenor of the matter to be noticed.

 

                        [C]       Time of Taking Judicial Notice

 

Judicial notice may be taken at any time, including appeals.

 

                        [D]       Jury Instructions

 

In civil cases, the court must instruct the jury “to accept as conclusive any fact judicially noticed.”  In contrast, Rule 201(g) directs the court to instruct the jury in a criminal case that it “may, but is not required to, accept as conclusive any fact judicially noticed.”

 

§ 44.05   Criminal Cases [631-32]

 

Several special issues concerning judicial notice arise in criminal cases.  As noted in the previous section, the jury instructions in criminal and civil cases are different.  The rule, however, specifically resolves this issue.  Two other issues are not explicitly addressed:  (1) whether a trial court may take judicial notice of an ultimate fact or element of a crime, and (2) whether a defendant in a criminal prosecution may introduce evidence to rebut a judicially noticed fact.

 

§ 44.06   Judicial Notice of Law  [632-33]

 

There is no provision in the Rules of Evidence that governs judicial notice of law. Judicial notice of law is covered in the rules of procedure. See Fed. R. Civ. P. 44.1(a); Fed. R. Crim. P. 27.