§ 44.05 Criminal Cases

• Jurisdiction: United States

§ 44.05 Criminal Cases

Several unique issues concerning judicial notice arise in criminal cases. As noted in the previous section, the jury instructions in criminal and civil cases are different. Rule 201, however, specifically resolves this issue. Two other issues are not explicitly addressed: (1) whether a trial court may take judicial notice of an "ultimate" fact or element of a crime, and (2) whether a defendant in a criminal prosecution may introduce rebuttal evidence.

Elements of offense. By its own terms, Rule 201 seems to permit a court to take judicial notice of all adjudicative facts not subject to reasonable dispute, including ultimate facts. Some courts, however, have indicated that judicial notice of an essential element is improper.⁸² However, other courts have noticed facts about geography and distances, which are jurisdictional facts.⁸³ The Supreme Court's reinvigoration of the right to jury trial suggests that caution is in order when taking any issue away from the jury.⁸⁴ One commentator has argued that taking judicial notice of jurisdictional facts in federal trials in unconstitutional.⁸⁵

Rebuttal evidence. Another issue concerns the accused's right to introduce rebuttal evidence. There is little dispute that such evidence is inadmissible in civil cases.⁸⁶Nevertheless, the congressional change in the criminal jury instruction, Rule 201(f), could be interpreted to recognize a right to offer rebuttal evidence to the jury in criminal cases.⁸⁷ For example, the Sixth Circuit has ruled that "in criminal cases, the parties may contest facts judicially noticed."⁸⁸ The contrary view is that "the right of jury trial does not extend to matters which are beyond reasonable dispute"⁸⁹ and "accepting what [is] plainly true could not abridge any Sixth Amendment right to confront witnesses."⁹⁰

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Notes:

^[82] See United States v. Herrera-Ochoa, 245 F.3d 495, 502 (5th Cir. 2001) ("Taking judicial notice of the trial court record arguably infringes on Herrera's Sixth Amendment right to confront witnesses. . . . Taking judicial notice in this case of an essential element of the crime, however, potentially infringes on Herrera's right to have each element proved beyond a reasonable doubt.").

^[83] E.g., United States v. Deckard, 816 F.2d 426, 428 (8th Cir. 1987) (trial court judicially noticed interstate character of Southwestern Bell Telephone System); United States v. Rodriguez, 803 F.2d 318, 321 (7th Cir. 1986) (trial court took judicial notice of...