Effective Use of Judicial Notice
| Publication year | 2003 |
| Pages | 47 |
2003, January, Pg. 47. Effective Use of Judicial Notice
Vol. 32, No. 1, Pg. 47
The Colorado Lawyer
January 2003
Vol. 32, No. 1 [Page 47]
January 2003
Vol. 32, No. 1 [Page 47]
Specialty Law Columns
The Civil Litigator
Effective Use of Judicial Notice
by Fotios M. Burtzos
The Civil Litigator
Effective Use of Judicial Notice
by Fotios M. Burtzos
The Civil Litigator column addresses issues of importance and
interest to litigators and trial lawyers practicing in
Colorado courts. The Civil Litigator is published six times a
year
Column Editor
Richard L. Gabriel of Holme Roberts & Owen llp, Denver
(303) 861-7000
About The Author:
This month's article was written by Fotios M. Burtzos,
Colorado Springs, an attorney with Paul S. Edwards &
Associates and a member of The Colorado Lawyer Board of
Editors--(719) 228-3800, birdtoes@adelphia.net.
This article provides an overview of the rules and principles
governing the use of judicial notice in trial and appellate
courts.
Practitioners in Colorado have available to them judicial
notice as a valuable evidentiary mechanism. Unlike other
pieces of evidence submitted to the jury in a civil case,
"[w]hen the court declares it has taken judicial notice
of some fact or event, the jury must accept that fact or
event as proved."1 (Emphasis added.) However, despite
its value, it appears that judicial notice is not used widely
by attorneys in Colorado civil courts.
In a civil case, the jury cannot conclude that a judicially
noticed fact or event was not proven or did not take place.2
Thus, such evidence may be pivotal in determining the outcome
of a suit. In addition, having matters judicially noticed can
save significant time and expense for the parties because the
number of trial witnesses may be reduced.
This article gives an overview of judicial notice, which may
be made on motion of a party or on the court's own
motion. The article provides examples of items that have been
judicially noticed by the courts. In addition, it gives
information about matters that are not appropriate for
judicial notice. Finally, the article provides a sample form
that practitioners can use when seeking judicial notice.
Overview of Judicial Notice
Judicial notice has been referred to as the act by which a
court, in conducting a trial or framing a decision, will
recognize the existence and truth of certain facts having a
bearing on the controversy at bar. Judicial notice may be
made without the production of evidence, by request of a
party, or on the court's own motion. Facts that are
judicially noticed, by their nature, are not properly the
subject of testimony or are universally regarded as
established by common "notoriety"3 (discussed
below). Judicial notice also has been described as the
cognizance of certain facts that judges and jurors may take
and act on without proof because they already know them.4
Definition of "Adjudicative Facts"
Rule 201 of the Colorado Rules of Evidence
("C.R.E.") governs evidence that is judicially
noticed.5 This rule governs only judicial notice of
"adjudicative facts."6 Adjudicative facts are
defined as those that: (1) are not subject to reasonable
dispute and are generally known within the territorial
jurisdiction of the trial court; or (2) are capable of
accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.7
Whether a particular fact constitutes an adjudicative fact
that is subject to judicial notice depends on the
circumstances of the specific case and the philosophy of the
particular court. An item that is not an adjudicative fact
sometimes is referred to as a "legislative fact."
Courts have noted the confusion regarding the difference
between these two types of facts.8 The U.S. Court of Appeals
for the Tenth Circuit has referred to adjudicative facts as
"simply the facts of the
particular case."9 On the other hand, legislative facts
have relevance to legal reasoning and the law-making process.
Further, legislative facts relate to established truth,
facts, or pronouncements that apply universally rather than
change from case to case.10
Definition of "Notoriety"
The limits of judicial notice cannot be described with
exactness. However, "notoriety" generally is the
ultimate test of facts that can be brought within the realm
of judicial notice. Specifically, judicial notice covers
matters so obvious and notorious that the production of
evidence would be unnecessary. Judicial notice also covers
matters with which the judicial function supposes the trier
of the fact to be acquainted, either actually or
theoretically.11 Some such matters are noted in
"Examples of Judicially Noticed Matters," below.
Judicial Notice in Appeals
Colorado appellate courts, as well as trial courts, may make
use of the ability to take judicial notice of adjudicative
facts because judicial notice may be taken at any stage of a
court proceeding.12 Thus, in appropriate circumstances,
practitioners may request in their appellate briefs that
judicial notice be taken of a particular fact to support the
position of the practitioner's client. This applies even
if the particular fact is not included in the trial court
record.13 If a fact subject to judicial notice develops or is
ascertained after a matter has been briefed and argued,
appellate counsel may consider submitting a request to the
court to take judicial notice of the specific fact in
determining its opinion.
A court must take judicial notice of an adjudicative fact if
(1) a party requests it; and (2) the party...
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