GREGORY CHANDLER--JUDICIAL NOTICE III

BY GREGORY CHANDLER



Under common law and under the Federal Rules of Evidence, most proof is presented by means of testimonial evidence or the by offering of real evidence.  Nonetheless, there is an exception to the requirement that a party who relies on a certain proposition must prove it; the exception is judicial notice.  Many view a distinction between two kinds of judicial notice:  (1) judicial notice of legislative facts, and (2) judicial notice of adjudicative facts.  This distinction is followed in Federal Rule of Evidence 201, which covers the latter but not the former. 

The distinction between judicial notice of legislative facts and judicial notice of adjudicative facts can be summed up as follows:

Facts pertaining to the parties should not be judicially notices but should be developed through the evidence unless the facts are unlikely to be questioned.  But facts that help a judge determine what the law ought to be often cannot be proved with evidence; they are a part of a judge's thinking and they often have to be the subject of judicial notice. 

Federal Rule of Evidence 201 (Rule 201) is the only rule dealing with judicial notice.  Rule 201 concerns adjudicative facts--facts which concern the "who, what, when, where, and why" of the case before the Court.  Judicial notice of legislative facts--facts and policy assumptions used by the Court in the process of construing a statute or developing the law--is intentionally left unrestricted.  A Court can rely on legislative facts and assumptions even if they are subject to dispute and are not verifiable.  

To be judicially noticed an adjudicative fact must be either one generally known within the territorial jurisdiction of the trial court or one that is capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.  Thus, there are two different types of indisputable adjudicative facts subject to judicial notice under Rule 201.  The first is a fact so well known that it would be a waste of judicial resources to require proof; reasonably well-informed people simply could not differ as to the fact.  This indisputability requirement is not satisfied merely because the trial judge learns of a fact through personal experience.  The matter must be generally known by reasonably well-informed people.  However, it is not required that the fact be universally known.   Rule 201 requires general knowledge "within the territorial jurisdiction" of the trial court.  Thus, it may not be universally known that New York City's Central Park is north of mid-town Manhattan; but that fact is generally known in New York City.  

The second type of adjudicative fact that can be judicially noticed under Rule 201 is one that is capable of ready verification through sources whose reliability cannot be reasonably questioned.  This prong of adjudicative fact is the one more often relied upon, because a fair argument can be made that most facts are not generally known, but yet that many of these facts can be reliably verified.  For example, there may be some argument as to whether the current United States Secretary of Labor is generally known to even reasonably well-informed people.  Yet it is clear that the name of the Secretary of Labor can be readily verified through unimpeachable sources.  Where the sources of information are questionable, disputable, or spotty, judicial notice cannot be taken.  

The categories of indisputable adjudicative facts are limited by design.  The reason for going to trial is to give both litigants a chance to examine each other's evidence and to present all sides to the fact-finder.  Our system disfavors short-cutting the trial process.  So for example, a trial judge who resorts to outside sources to determine an adjudicative fact should resist the temptation to decide the entire case on the basis of his or her own independent research.  The trial attorneys should be permitted to examine the sources relied upon, to suggest other sources, and to present argument about the meaning of the sources upon which the trial judge might be prepared to rule.  

A problem for the trial attorney is that the difference between an adjudicative fact and a legislative fact may be difficult to apply in many cases.  

One aspect not covered by Rule 201 involves assumptions made by the trial court in its determination of policy; e. g. that a particular change in law would do more harm than good.  This is not the sort of fact question that, in a jury trial, would normally be put to the jury, and not so subsumed by Rule 201's definition of "judicial notice of fact."  Rather than findings of fact, these are policy determinations made by the court acting in its lawmaking capacity.  The court as lawmaker is held to the same standard as the legislature is for the veracity of its inferences:  it must be rational.  The court taking judicial notice of a fact as that term is used in Rule 201 is held to a different and higher standard--the same standard required for it to direct a verdict; it must be right, meaning that rational minds would not dispute the fact that the court notices.

Stated more specifically, Rule 201 does not bar:

(1) Common law rule-making on the basis of factual assumptions based on the court's familiarity with non-evidence sources.
(2) Rule-making pursuant to a constitutional grant of authority on the basis of disputable factual assumptions.  
(3) Constitutional interpretation based upon disputable factual assumptions--for example the balancing of interests in the vague area of due process.  
(4) Judicial creation of remedies assumed to be necessary to carry out the legislative intent of a statute.           

Essentially Rule 201 requires a determination of whether a question is one normally decided by the fact-finder or is the sort properly left to the law makers.  While this determination is not always easy to make, it is one the courts have coped with for many years.  Simply stated, the guiding principle should be:  if the fact involved tends to show that certain conduct is or is not, or should or should not, be against the law (or unconstitutional), it is for the court to consider freely; if the fact involved tends to prove an instance of certain conduct, it is a question for the fact finder and covered by Rule 201.  


GREGORY CHANDLER, Attorney at Law