§ 44.04 Procedural Issues
| Jurisdiction | United States |
[A] Discretionary and Mandatory Notice: FRE 201(c)
Rule 201(c) permits a court to take judicial notice sua sponte, notwithstanding the absence of a request by either party.68 The rule requires the court to take judicial notice if one of the parties so requests. If the fact is one capable of accurate and ready determination, the requesting party must also supply the court with sources whose accuracy cannot reasonably be questioned.69
[B] Opportunity to be Heard: FRE 201(e)
Rule 201(e) entitles a party, upon timely request, to an opportunity to be heard concerning both the propriety of taking judicial notice and the tenor of the matter to be noticed. The hearing should be held outside the presence of the jury.70 When there is no advance indication that judicial notice will be taken, the parties are entitled to be heard after the court has judicially noticed the fact.71
The provision requiring the opportunity to be heard is constitutionally mandated by due process. The federal drafters wrote: "Basic considerations of procedural fairness demand an opportunity to be heard on the propriety of taking judicial notice and the tenor of the matter noticed."72
[C] Time of Taking Judicial Notice: FRE 201(d)
A court may take judicial notice of adjudicative facts at any time during the proceeding—e.g., motions for directed verdicts, motions to dismiss for failure to state a claim upon which relief can be granted, or motions for summary judgment.73
Appeals. Judicial notice may also be taken on appeal.74 An important limitation on this use of judicial notice is imposed on criminal appeals. Where no evidence on an ultimate fact (essential element) has been introduced at trial, an appellate court may not supply the missing fact on appeal through the use of judicial notice. The Supreme Court has observed: "To extend the doctrine of judicial notice to the length pressed by the respondent would require us to allow the prosecution to do through argument to this Court what it is required by due process to do at the trial, and would be 'to turn the doctrine into a pretext for dispensing with a trial.'"75 Other courts have echoed this view.76
This issue is not limited to criminal cases. The Fifth Circuit has ruled that taking judicial notice after the trial in a civil case is improper if doing so deprives a party of the opportunity to adduce evidence on a critical fact placed in issue by the court's action.77
[D] Jury Instructions: FRE 201(f)
Rule 201(f) governs jury instructions of judicially noticed facts. In civil cases, the court must instruct the jury "to accept the noticed fact as conclusive." Criminal prosecutions, however, are treated differently. Rule 201(f) directs the court to instruct the jury in a criminal case that it "may or may not accept the noticed fact as conclusive."78
Congress added the provision on jury instructions in criminal cases. According to the House Judiciary Committee Report, adoption of this provision was based on the belief that a "mandatory instruction to a jury in a criminal case to accept as conclusive any fact judicially noticed is inappropriate because [it is] contrary to the spirit of the Sixth Amendment right to jury trial."79 In effect...
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