Judicial notice

Judicial notice is a rule in the law of evidence that allows a fact to be introduced into evidence if the truth of that fact is so notorious or well known, or so authoritatively attested, that it cannot reasonably be doubted. This is done upon the request of the party seeking to rely on the fact at issue. Facts and materials admitted under judicial notice are accepted without being formally introduced by a witness or other rule of evidence, and they are even admitted if one party wishes to lead evidence to the contrary.

Judicial notice is frequently used for the simplest, most obvious common sense facts, such as which day of the week corresponded to a particular calendar date or the approximate time at sunset.^[1] However, it could even be used within one state to notice a law of another state—such as one which provides average baselines for motor vehicle stopping distances.^[2]

Judicial notice in the Federal Rules of Evidence

In the United States, Article II of the Federal Rules of Evidence ("FRE") addresses judicial notice in federal courts, and this article is widely copied by U.S. States. FRE 201(b)) permit judges to take judicial notice of two categories of facts:

1. Those that are "generally known within the territorial jurisdiction of the trial court" (e.g. locations of streets within the court's jurisdiction) or
2. Those that are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned" (e.g. the day of the week on a certain date).^[3]

The FRE also notes that judicial notice may be permissive or mandatory. If it is permissive, then the court may choose to take judicial notice of the fact proffered, or may reject the request and require the party to introduce evidence in support of the point. If it is mandatory, then the court must take judicial notice of the fact proffered. Although the FRE does not expand upon the kinds of facts that would fall into one category or another, courts have ruled that judicial notice must be taken of federal public laws and treaties, state public laws, and official regulations of both federal and local government agencies.

Judicial notice and the burden of proof

FRE 201(f) establishes that the effect of the court taking judicial notice is different in civil and criminal trials. In a civil trial, the fact taken notice of is thereby conclusively proved. In a criminal case, the defendant has the right to contest every fact that might tend to incriminate him. Therefore, the court taking judicial notice would simply allow the jury to make the finding that the court took notice of, but would not require this outcome, and would not prevent the defense from presenting evidence to rebut the noticed fact.

Judicial notice in foreign affairs

Legal disputes about foreign affairs are generally settled by judicial notice by obtaining the information directly from the office of the Secretary of State (in the United States) or the Foreign Secretary (in the United Kingdom). For example, if a litigant in an extradition hearing attempted to argue that Israel was not a sovereign state, a statement from the Secretary of State that the U.S. recognized Israel as a sovereign state would settle the issue and no evidence could be led to the contrary.

Recently, Court of Appeals decisions regarding the legal rights of detainees of Guantanamo Bay took judicial notice of Cuba having no sovereignty over the U.S. naval base in that location despite claims by the United States government that it was Cuban territory and not subject to the application of United States law.

Federal courts and the courts of most jurisdictions have determined that matters of foreign law are subject to permissive judicial notice.

Official notice

During the prosecution phase of U.S. patent applications, a similar concept to judicial notices are applied by patent examiners, but the process is referred to as taking "official notice". In a typical patent claim rejection, the examiner has to present prima facie evidence (usually as a published document) that the subject matter of a rejected claim was known prior to the application for patent by the inventor. However, when the limitation of the claim is so trivial or well known in the prior art, examiners can take official notice to that fact. Patent applicants are then allowed to traverse the official notice given by an examiner, in which case the examiner must present an evidentiary document to prove the fact or limitation is well known.^[4]

Historical examples

In the 1858 murder trial of William Armstrong, his attorney, then-former Congressman Abraham Lincoln, used judicial notice to establish that a claim by a witness to have used moonlight to see events could not have taken place since there was no visible moon that evening. This led to Armstrong's acquittal.^[5]

In the 1934 United States Supreme Court case Home Building & Loan Association v. Blaisdell, Chief Justice Charles Evans Hughes took judicial notice of the economic conditions of the Great Depression to help conclude that a state of emergency existed, and thus the State of Minnesota could properly impose on the contracts made by private persons to promote a broad societal interest. Specifically, the Court upheld a Minnesota statute preventing loan companies from foreclosing on homes before 1935, despite mortgage agreements allowing companies the right to do so.^[6]

In the 1981 case of Mel Mermelstein v. Institute for Historical Review, the Superior Court of Los Angeles County took judicial notice of the fact that "Jews were gassed to death at the Auschwitz Concentration Camp in Poland during the summer of 1944."^[7]

Judicial Notice in Australia

In NSW, judicial notice may be taken of facts that are 'not reasonably open to question'.^[8] This may include, for example, the location of well-known geographical features. However, both parties must be given notice of the judicial officer's intention to rely upon the information.^[9]

References

1. "Complete Sun and Moon Data for One Day". The United States Naval Observatory.
2. Code of Virginia § 46.2-880 Tables of speed and stopping distances
3. Rule 201. Judicial Notice of Adjudicative Facts
4. USPTO MPEP 2144.03
5. Death of William Armstrong: Was once held for murder and Abraham Lincoln defended him. The New York Times, May 14, 1899.
6. Home Loan Building & Loan Association v. Blaisdell, 290 U.S. 398 (1934)
7. "California Judge Rules Holocaust Did Happen". The New York Times. Associated Press. October 10, 1981. p. A26. Retrieved November 20, 2010.
8. Uniform Evidence Act, s 144(1)
9. Farkas[2014] NSWCCA 141