§ 44.03 Types of Facts Subject to Notice: FRE 201(b)
| Jurisdiction | United States |
Two kinds of adjudicative facts are subject to judicial notice: (1) facts generally known within the territorial jurisdiction of the trial court; and (2) facts capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned. Facts that fit these two categories, however, are proper subjects for judicial notice only if they are "not subject to reasonable dispute."18
[A] Indisputability Requirement
Morgan view. By limiting judicial notice to indisputable facts,19 Rule 201 adopts Professor Morgan's view of judicial notice, which is based on the judicial function of resolving disputes.20 For example, in a bail-jumping case, the Ninth Circuit ruled that the trial court improperly took judicial notice that the defendant was absent from the jurisdiction for approximately seven months. According to the court, this fact was not indisputable.21 In another case, the First Circuit upheld a trial court's refusal to judicially notice that "Rastafarians use marijuana as part of their religion," because this fact was not indisputable.22
Two consequences follow from Morgan's theory. First, once a fact is judicially noticed by the court, evidence tending to establish or rebut that fact is inadmissible. Second, in civil cases, the jury must accept the judicially noticed fact and is so instructed.
Wigmore-Davis view. In contrast to the Morgan theory, the theory of judicial notice advocated by Dean Wigmore23 and Professor Davis24 is based on procedural convenience: "Proving facts with evidence takes time and effort. Noticing facts is simpler, easier, and more convenient."25 Under this theory, facts that are probably true may be judicially noticed, even though they are not indisputable. Moreover, evidence controverting a judicially noticed fact is admissible,26 and the jury is not bound to accept the judicially noticed fact.27
As noted above, Rule 201 reflects the Morgan view, limiting judicial notice to indisputable facts.28 The rule deviates from the Morgan theory in one respect. Division (f) of the rule provides that, in criminal cases, the jury shall be instructed that it is not bound to accept a judicially noticed fact.29
[B] Generally Known Facts
An adjudicative fact, not subject to reasonable dispute, may be judicially noticed if generally known.30 Facts in this category need only be generally known within the "territorial jurisdiction" of the court. Knowledge within a trade or subclass is not subject to notice.31
United States v. Bello32 involved the fact that a particular prison was within the territorial jurisdiction of the United States. The First Circuit ruled that judicial notice of this fact was improper:
Although the label "federal penitentiary" might suggest to the average person that MDC-Guaynabo is under the jurisdiction of the United States, it is unlikely that the "reasonable person" has any familiarity with MDC-Guaynabo at all, let alone its jurisdictional status. Hence, Rule 201(b)(1) cannot supply a basis for judicially noticing the jurisdictional fact in this case.33
The category of generally known facts includes many kinds of information. Courts have taken judicial notice: (1) "that a social security check is sent out by first class mail and bears on its envelope not only a return address but a written direction that if the addressee is deceased it is to be returned to the sender";34 (2) "that federal officers do not patrol the interstate highways or the streets en route; there are no federal jails in the states; and committing magistrates are conveniently available";35 (3) "that 7:30 P.M. in July . . . is daytime in Dallas during Daylight Savings Time";36 (4) "that contraband is smuggled into custodial institutions";37 that Southwestern Bell Telephone System is involved in interstate communications;38 (5) that "New York has no firearms manufacturers";39 and (6) that the United States has authority over Puerto Rico.40
In addition, federal courts have cited Rule 201 when judicially noticing that "Citibank . . . is an FDIC-insured bank and . . . engages in interstate and foreign commerce,"41 that the Klan "is a white hate group,"42 and that dietary laws are important to orthodox Judaism.43Courts have also taken judicial notice of foreign events,44 among other things.45
Personal knowledge of judge. "Generally known" facts, for purposes of Rule 201(b), must be distinguished from facts that a judge personally knows; only the former are properly the subject of judicial notice.46 For example, in Government of Virgin Islands v. Gereau,47 the Third Circuit reversed a conviction because the trial judge relied on his "personal subjective belief about the needs and motives"48 of a witness whose credibility was an issue in a motion for a new trial.
Jury notice. Judicial notice of generally known facts should also be distinguished from what is known as "jury knowledge"—the common knowledge and experience that jurors bring with them and use in deciding cases.49
[C] Accurately and Readily Determinable Facts
Historical, geographic, physical, political, statistical, and scientific facts have all been noticed as verifiably certain.50 Courts have taken judicial notice that: (1) "human blood groupings are . . . not subject to change";51 (2) "cocaine is a derivative of coca leaves";52(3) "the United States was at war" on certain dates;53 (4) "the moon on that night [when the crime was committed] rose at 10:57 P.M.";54 and (5) Fort Rucker is "a military enclave under Title 18."55
Official records. Courts have judicially noticed court records.56 For example, the Fifth Circuit has stated: "[T]he trial judge was warranted in taking judicial notice of immutable geographic and physical facts adjudicated in a previous proceeding."57 In another case, the Third Circuit upheld the trial court's judicial notice of a defendant's prior conviction for purposes of impeachment.58 Records of executive branch agencies are also subject to notice.59
Scientific facts. Courts have also taken judicial notice of scientific facts.60 The principles underlying intoxication tests, fingerprint comparisons, and firearms identification have all been judicially noticed.61 According to the Supreme Court, "[T]heories that are so firmly established as to have attained the status of scientific law, such as the laws of thermodynamics, properly are subject to judicial notice under Fed. Rule Evid. 201."62
Accurate sources. In deciding whether a fact is capable of ready and accurate determination, a court may rely only upon sources "whose accuracy cannot reasonably be questioned." The source itself need not be admissible in evidence, however.63 Almanacs, encyclopedias, and other standard reference works are acceptable, so long as the source is recognized as authoritative and reliable. According to Wigmore, "any source whatever that suffices to satisfy [the judge's] mind in making a ruling" is acceptable.64
"It is not uncommon for courts to take judicial notice of factual information found on the world wide web."65 There is an array of websites, and their reliability varies as well. Some are government sites, most are private. Of the latter, some are familiar and reliable (e.g., MapQuest), while others are familiar but debatable (e.g., Wikipedia). Still other sites are open (e.g., Facebook).66 In determining admissibility, "courts should examine at least three attributes of the online source: (1) knowledge of the subject matter, (2) independence from relevant bias, and (3) incentive to ensure accuracy. No source, online or otherwise, is without possibility of error. A candid assessment of these three factors, however, will result in numerous determinations that reputable Internet sources come within Rule 201's scope and can, thus, help fact-finders resolve disputes in courtrooms across the country."67
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Notes:
[18] See Fed. R. Evid. 201 advisory committee's note ("A high degree of indisputability is the essential prerequisite.").
[19] See Kaggen v. IRS, 71 F.3d 1018, 1020 (2d Cir. 1995) ("That banks send customers monthly statements which inform customers to whom...
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