Judicial Notice (of fact, of law)

Question 1

What are the two types of judicial notice?

Answer 1

1. judicial notice of fact

2. judicial notice of law

Question 2

What is judicial notice of fact?

Answer 2

“judicial notice of fact” = recognition of a fact as true without formal presentation of evidence

Question 3

With regards to “judicial notice of fact”, what types of facts may be judicially noticed?

Answer 3

INDISPUTABLE facts that are:

1. matters of COMMON KNOWLEDGE in the community (“notorious facts”); OR
2. CAPABLE OF INDISPUTABLE verification (“manifest facts”)

Question 4

When may “judicial notice of fact” be taken?

Answer 4

Judicial notice of fact my be taken at ANY TIME, whether or not requested

Question 5

May court take judicial notice of fact of its own accord?

Answer 5

YES.

Question 6

If a court does not take judicial notice of a fact on its own accord, may a party request the same?

If facts are appropriate for judicial notice, and it is requested, is judge required to take judicial notice?

What is the CA distinction?

Answer 6

Yes.

MUST Judge take judicial notice?

Federal rule –> Judge MUST take judicial notice if:

1. facts are appropriate for judicial notice; AND
2. it is requested

CA –>

1. Judge MUST take judicial notice if –> facts are of general knowledge
2. Judge MAY take judicial notice if —> facts are not universally known, but can be established by resort to sources of indisputable accuracy

Question 7

May judicial notice of a fact be taken for the first time in an appeal?

Answer 7

Yes

Question 8

What is the result of a judicially noticed fact in a

• civil case?
• criminal case?

What is the CA distinction?

Answer 8

Civil case –> judicially noticed fact is CONCLUSIVE

criminal case –> jury is instructed that it MAY but is not required to accept as conclusive any judicially noticed fact

CA DISTINCTION –> judicially noticed facts are CONCLUSIVE in BOTH civil and criminal cases (although may be subject to 6th amendment challenge)

Question 9

What is the rule w regards to “adjudicative” versus “legislative” facts?

Answer 9

These rules govern only “Adjudicative” facts (those that relate to the particular case).

“legislative facts” need not be common knowledge nor capable of indisputable verification
EXAMPLE –> rationale behind spousal privilege

Question 10

What rules apply to judicial notice of LAW?

Answer 10

Court MUST take judicial notice of:

• federal and state law
• official regulations

Court MAY take judicial notice of:

• municipal ordinances
• private acts or resolutions of congress or of local state legislature
• laws of foreign countries