§ 44.06 Judicial Notice of Law

• Jurisdiction: United States

§ 44.06 Judicial Notice of Law

Rule 201 is limited to judicial notice of adjudicative facts. There is no provision in the Federal Rules of Evidence that governs judicial notice of law. According to the drafters, "the manner in which law is fed into the judicial process is never a proper concern of the rules of evidence but rather the rules of procedure."⁹¹

The term "judicial notice of law" can be understood only from an historical perspective. The trial judge is responsible for finding the applicable law to be applied in the case. This law is not subject to proof. Accordingly, speaking of this judicial knowledge of law by using judicial notice terminology became commonplace: "A trial judge must take judicial notice of the domestic law of the jurisdiction of which he is a judicial officer."⁹² The assumption of judicial knowledge of law, however, generally did not extend to the laws of other states and foreign countries (laws of another forum). These were initially treated as questions of fact to be pleaded and proved like other facts. Over time, however, the law of another forum was viewed as an issue of "law" and not fact. Under this view, this topic is not controlled by the rules of evidence, but rather by the rules of procedure.

Judicial notice of law is governed by the Rules of Civil and Criminal Procedure.⁹³Some states, however, include provisions on judicial notice of law in the rules of evidence.⁹⁴

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Notes:

^[91] Fed. R. Evid. 201 advisory committee's note.

^[92] Morgan, Basic Problems of Evidence 1 (1962). See also Lamar v. Micou, 114 U.S. 218, 223 (1885) ("The law of any state of the Union, whether depending upon statutes or upon judicial opinions, is a matter of which...