§ 44.02 Adjudicative and Legislative Facts: FRE 201(a)

• Jurisdiction: United States

§ 44.02 Adjudicative and Legislative Facts: FRE 201(a)

Rule 201 applies only to judicial notice of adjudicative facts. The term "adjudicative fact" is used in contradistinction to the term "legislative fact." Professor Davis coined these terms.

Adjudicative facts. Davis described adjudicative facts as follows: "[A]djudicative facts are those to which the law is applied in the process of adjudication. They are the facts that normally go to the jury in a jury case."³ In other words, adjudicative facts are what we normally think of when we talk about the "facts of a case."⁴ For example, if an accused is charged with grand theft, the prosecution is required to prove that the value of the property was $5,000.00 or more if that is the statutory amount specified for grand theft. The value of the property is an adjudicative fact; it is a "fact of the case" that would normally be decided by a jury.

Legislative facts. In contrast, legislative facts are those facts "which have relevance to legal reasoning and the lawmaking process, whether in the formulation of a legal principle or ruling by a judge or court or in the enactment of a legislative body."⁵ According to Davis, when a court "develops law or policy, it is acting legislatively. . . . Legislative facts are those which help the tribunal to determine the content of law and policy and to exercise its judgment or discretion in determining what course of action to take."⁶ You have encountered legislative facts in every law school class you have taken, although probably not by that name.

Legislative facts, then, are used in lawmaking. Courts, as well as legislatures and administrative agencies, perform a lawmaking function. In developing constitutional principles,⁷ interpreting statutes, and creating the common law, courts, of necessity, make factual assumptions—historical, scientific, economic, and political. In this context, judicial notice is a broad concept, rather than a narrow evidentiary rule.⁸

Common law example. The federal drafters cited Hawkins v. United States⁹ to illustrate judicial notice of legislative facts. In Hawkins, the Supreme Court decided to retain the common law testimonial privilege for spouses in criminal cases. The Court's decision rested on a factual assumption: that "[a]dverse testimony given in criminal proceedings would . . . be likely to destroy almost any marriage."¹⁰ This factual assumption had nothing to do with the facts of the case (adjudicative facts); the defendant was charged with a violation of the Mann Act, which proscribes the interstate transportation of a female for immoral...