May 20, 2019 Articles

    Judicial Notice: A Useful Tool to Consider

    Often the simplest and most efficient way to establish facts that are essential to your case.

    By Cheryl D. Stein

    Judicial notice is the most underused—and underappreciated—form of evidence available to trial lawyers. A method of introducing facts into evidence, judicial notice is often the simplest and most efficient way to establish facts that are essential to your case. And it usually does not cost a thing.

    Overview

    In the federal system, judicial notice is governed by Federal Rule of Evidence 201. The rule expressly applies only to “adjudicative,” not “legislative,” facts. There is no definition of these terms in the rule; they are drawn from common law. Adjudicative facts are those that relate to the issues to be decided in the case, i.e., the who, what, where, when, how, and why of what happened. Legislative facts relate to matters of public policy, social custom, and the like. 

    An adjudicative fact can be judicially noticed if it “is not subject to reasonable dispute.” Fed. R. Evid. 201(b). There are two categories of these facts: (1) those that are “generally known within the trial court’s territorial jurisdiction” and (2) those that “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Id.

    By definition, the facts that fall into the first category vary greatly by location. For example, it is generally known in New York that the Yankees play in the Bronx, just as it is generally known in Chicago that the White Sox play on the South Side. The former fact would be properly noticeable under subparagraph 1 in a court in New York; the latter, a court in Chicago.

    Facts that are not generally known within the court’s territorial jurisdiction may be noticed under subparagraph 2 if the court is presented with a source of information whose reliability cannot reasonably be questioned. If a trial lawyer in New York wanted the court to notice that the White Sox play on the South Side of Chicago, the lawyer would have numerous sources that would satisfy the rule, e.g., a page from the White Sox website showing the location of the stadium on a map, a page from the City of Chicago’s website listing the location of its major tourist attractions, or a page from Major League Baseball’s website showing the location of every ballpark in the country.

    Practical Application

    Once a fact is noticed by the court, it is simply another piece of substantive evidence. In a criminal case, the jury must be instructed that “it may or may not accept the noticed fact as conclusive.” Fed. R. Evid. 201(f). As a practical matter, however, it is a very rare juror who will not be persuaded by a fact that has, in essence, been endorsed by the judge.

    The court may take judicial notice on its own. If it intends to do so, it must inform the parties and give them an opportunity to be heard on the issue.

    However, when a party requests judicial notice, the court has no discretion. The court must take notice of any fact that satisfies the criteria of Federal Rule of Evidence 201(b) as long as it is “supplied with the necessary information.” Fed. R. Evid. 201(c). In a recently litigated suppression motion, the lighting conditions at the time of the defendant’s arrest were at issue. Although the incident had occurred at twilight, the officer who testified had described the conditions as daylight. During the defense case, counsel proffered a page from the website of the National Oceanic and Atmospheric Administration (NOAA), which listed the sunrise and sunset times for every day of the year. It showed that the sun had set 20 minutes before the arrest. Although the judge would have likely doubted the defendant’s veracity had he testified about the lighting conditions, the NOAA data was not susceptible to a bias impeachment.

    Timing

    Judicial notice may be taken at any stage of a trial—even closing argument. During a bench trial with a child complainant, the story that the child told on the witness stand was markedly different from the version in the charging document. On cross-examination, the child denied that she had ever said anything different, and there was no evidence available to impeach her as the only police officer who testified during the government’s case was a detective who had never personally interviewed the child. Thus, counsel could not ask him about any prior inconsistent statements by the complainant. In closing, of course, the government argued that the lack of impeaching evidence was probative of the child’s truthfulness. During closing argument, however, defense counsel asked the judge to take judicial notice of the statement of facts in the criminal information, which was very different from the trial testimony. The judge read the information aloud and agreed that the inconsistencies were substantial and undermined the child’s credibility.

    Conclusion

    The usefulness of this important rule of evidence cannot be overstated. And due to the ease with which judicial notice can be employed, there is no reason not to rely on this versatile tool.

    Cheryl D. Stein is a criminal defense lawyer in Washington, D.C. 

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