Rule 201: the Use of Hearsay in Establishing Facts Sufficient for Judicial Notice

• Publication year: 1993
• Pages: 2535
• Citation: Vol. 22 No. 12 Pg. 2535

22 Colo.Law. 2535 Colorado Lawyer 1993.

1993, December, Pg. 2535. Rule 201: The Use of Hearsay In Establishing Facts Sufficient for Judicial Notice

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2535

Vol. 22, No. 12, Pg. 2535

Rule 201: The Use of Hearsay In Establishing Facts Sufficient for Judicial Notice

by Richard H. Orman

Q: How can a party use learned treatises and other such hearsay to establish facts and provide the elements of a claim?

A: Pursuant to Colorado Rules of Evidence ("C.R.E.") 201, hearsay can be used at any stage of the proceedings to establish facts that are not subject to what can be reasonably disputed.

Assumed Facts

Joe Attorney represents Acme Co. in a civil action to be tried to a jury. It is essential for Joe's case that he establish certain firmly established historical facts and scientific principles. Joe has a multitude of books, treatises, scholarly articles and newspaper reports that he believes provide a basis for the items he wishes to establish. Joe could call expert historians and scientists to testify concerning these items, but he wishes to avoid the expense.

Discussion

C.R.E. 201 governs a court's power to take judicial notice of adjudicative facts.(fn1) C.R.E. 201(b) provides:

A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.

Hearsay sources such as books and treatises generally may not be used to establish facts at trial. However such materials are often the best or only source of important information. C.R.E. 201 allows parties to use such documents in order to provide the court with information necessary to take judicial notice

Judicial Notice: Types of Facts

C.R.E. 201 allows courts to take judicial notice of facts that are not subject to reasonable dispute. Courts have commonly taken judicial notice of historical facts,(fn2) facts regarding modern realities of urban life,(fn3) facts of commonly accepted scientific or mechanical principles(fn4) and facts regarding how business is conducted in certain industries.(fn5)

The Colorado Supreme Court has taken a restrictive view of what can be "reasonably disputed"(fn6) and has held that the fact or principle involved must be "irrefutable."(fn7) Even so, many important facts or...