Judicial notice
Encyclopedia
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 that it cannot be refuted. This is done upon the request of the party
seeking to have the fact at issue determined by the court
. Matters admitted under judicial notice are accepted without being formally introduced by a witness
or other rule of evidence, and even 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.
, Article II of the Federal Rules of Evidence
("FRE") addresses judicial notice in federal courts, and this article is widely copied by U.S. State
s. FRE 201(b)) permit judges to take judicial notice of two categories of facts:
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, court cases, however, have determined that courts must take mandatory judicial notice of federal public laws and treaties, state public laws, and official regulations of both federal and local government agencies.
(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.
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.
used judicial notice in the trial of William Armstrong 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.
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".
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
of evidence
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
that allows a fact to be introduced into evidence if the truth of that fact is so notorious or well known that it cannot be refuted. This is done upon the request of the party
Party (law)
A party is a person or group of persons that compose a single entity which can be identified as one for the purposes of the law. Parties include: plaintiff , defendant , petitioner , respondent , cross-complainant A party is a person or group of persons that compose a single entity which can be...
seeking to have the fact at issue determined by the court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
. Matters admitted under judicial notice are accepted without being formally introduced by a witness
Witness
A witness is someone who has firsthand knowledge about an event, or in the criminal justice systems usually a crime, through his or her senses and can help certify important considerations about the crime or event. A witness who has seen the event first hand is known as an eyewitness...
or other rule of evidence, and even if one party wishes to lead evidence to the contrary.
Judicial notice is frequently used for the simplest, most obvious common sense
Common sense
Common sense is defined by Merriam-Webster as, "sound and prudent judgment based on a simple perception of the situation or facts." Thus, "common sense" equates to the knowledge and experience which most people already have, or which the person using the term believes that they do or should have...
facts, such as which day of the week corresponded to a particular calendar date.
Judicial notice in the Federal Rules of Evidence
In the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, Article II of the Federal Rules of Evidence
Federal Rules of Evidence
The is a code of evidence law governing the admission of facts by which parties in the United States federal court system may prove their cases, both civil and criminal. The Rules were enacted in 1975, with subsequent amendments....
("FRE") addresses judicial notice in federal courts, and this article is widely copied by U.S. State
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
s. FRE 201(b)) permit judges to take judicial notice of two categories of facts:
- Those that are "generally known within the territorial jurisdiction of the trial court" (e.g. locations of streets within the court's jurisdiction) or
- 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).
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, court cases, however, have determined that courts must take mandatory judicial notice 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(g) 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 StateSecretary of State
Secretary of State or State Secretary is a commonly used title for a senior or mid-level post in governments around the world. The role varies between countries, and in some cases there are multiple Secretaries of State in the Government....
(in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
) or the Foreign Secretary (in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
). For example, if a litigant in an extradition
Extradition
Extradition is the official process whereby one nation or state surrenders a suspected or convicted criminal to another nation or state. Between nation states, extradition is regulated by treaties...
hearing attempted to argue that Israel
Israel
The State of Israel is a parliamentary republic located in the Middle East, along the eastern shore of the Mediterranean Sea...
was not a sovereign state
Sovereign state
A sovereign state, or simply, state, is a state with a defined territory on which it exercises internal and external sovereignty, a permanent population, a government, and the capacity to enter into relations with other sovereign states. It is also normally understood to be a state which is neither...
, 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
United States courts of appeals
The United States courts of appeals are the intermediate appellate courts of the United States federal court system...
decisions regarding the legal rights of detainees of Guantanamo Bay
Guantanamo Bay detainment camp
The Guantanamo Bay detention camp is a detainment and interrogation facility of the United States located within Guantanamo Bay Naval Base, Cuba. The facility was established in 2002 by the Bush Administration to hold detainees from the war in Afghanistan and later Iraq...
took judicial notice of Cuba
Cuba
The Republic of Cuba is an island nation in the Caribbean. The nation of Cuba consists of the main island of Cuba, the Isla de la Juventud, and several archipelagos. Havana is the largest city in Cuba and the country's capital. Santiago de Cuba is the second largest city...
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. patentPatent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
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
Prima facie
Prima facie is a Latin expression meaning on its first encounter, first blush, or at first sight. The literal translation would be "at first face", from the feminine form of primus and facies , both in the ablative case. It is used in modern legal English to signify that on first examination, a...
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
Prior art
Prior art , in most systems of patent law, constitutes all information that has been made available to the public in any form before a given date that might be relevant to a patent's claims of originality...
, 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.
Historical examples
Abraham LincolnAbraham Lincoln
Abraham Lincoln was the 16th President of the United States, serving from March 1861 until his assassination in April 1865. He successfully led his country through a great constitutional, military and moral crisis – the American Civil War – preserving the Union, while ending slavery, and...
used judicial notice in the trial of William Armstrong 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.
In the 1981 case of Mel Mermelstein
Mel Mermelstein
Mel Mermelstein is a Hungarian-born Jew, sole-survivor of his family's extermination at Auschwitz concentration camp who defeated the Institute for Historical Review in an American court and had the occurrence of gassings in Auschwitz during the Holocaust declared a legally incontestable...
v. Institute for Historical Review
Institute for Historical Review
The Institute for Historical Review , founded in 1978, is an American organization that describes itself as a "public-interest educational, research and publishing center dedicated to promoting greater public awareness of history." Critics have accused it of being an antisemitic "pseudo-scholarly...
, 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".