§201 General Rule

• Library: Evidence Restated Deskbook (2021 Ed.)

§201 General Rule

A. Kinds of facts. Judicial notice may be taken of facts that are either:

1. part of the common knowledge of every person of ordinary understanding and intelligence; or

2. capable of accurate and ready determination by resort to sources the accuracy of which cannot reasonably be questioned.

B. When discretionary. A court is not bound to take judicial notice of matters of fact and whether it will do so is dependent on the nature of the subject, issue involved, and justice in the case. A court may take judicial notice, whether requested or not.

C. When required. Judicial notice is required to be taken when a statute mandates it.

D. Opportunity to be heard. Upon timely request, a party is entitled to an opportunity to be heard on the propriety of taking judicial notice. In the absence of prior notification, the request may be made after judicial notice has been taken.

E. Time of taking. Judicial notice may be taken at any stage of the proceeding.

F. Effect. The taking of judicial notice of a fact serves as prima facie proof of the fact. Judicial notice merely dispenses with the necessity of establishing the fact by evidence. A fact judicially noticed remains rebuttable by the other party. In a criminal case, judicial notice of a fact cannot be conclusive.

Notes

A matter "judicially noticed means merely that it is taken as true without the offering of evidence by the party who should ordinarily have done so." Timson v. Mfrs. Coal & Coke Co., 119 S.W. 565, 569 (Mo. 1909). "The conclusiveness of the proof by judicial notice depends on the certainty of the source of the information—among them, whether only from common knowledge, or from the laws of nature, or from the authority of statute." Newson ex rel. Newson v. City of Kansas City, 606 S.W.2d 487, 490 (Mo. App. W.D. 1980) (citations omitted).

A. Kinds of facts

Facts that are part of common knowledge

One kind of fact judicially noticed is a fact that is "part of the common knowledge of every person of ordinary understanding and intelligence." Thompson v. Brown & Williamson Tobacco Corp., 207 S.W.3d 76, 104 (Mo. App. W.D. 2006); Endicott v. St. Regis Inv. Co., 443 S.W.2d 122, 126 (Mo. 1969). Precedents in Missouri include the following cases:

· Patton ex rel. Menne v. Mayes, 954 S.W.2d 394, 395 (Mo. App. E.D. 1997) (a nine-year-old child runs at a speed of 5 to 6 miles per hour)

· Cook v. St. Mary's Hosp., 939 S.W.2d 934, 939 (Mo. App. W.D. 1997) (a residential dwelling is constructed to obstruct access of wild creatures to the dwelling's interior), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003)

· Colvin v. Carr, 799 S.W.2d 153, 158 (Mo. App. E.D. 1990) (the occurrence of crime in an area had increased)

· McCreary v. Conroy, 611 S.W.2d 234, 235 (Mo. App. E.D. 1980) ("Reaction time is judicially noticed at three-fourths of a second unless the evidence shows a longer time.")

· Berra v. Danter, 299 S.W.3d 690, 700 (Mo. App. E.D. 2009) (a driver's reaction time is 3/4 second, and a car traveling 1 mile per hour travels 1.5 feet per second)

· Losh v. Benton, 382 S.W.2d 617, 619 (Mo. 1964) (properly equipped automobiles traveling at a speed of 20 miles per hour, including reaction time, can be stopped in less than 50 feet)

· Gaddy v. State Bd. of Registration for Healing Arts of Mo., 397 S.W.2d 347, 355 (Mo. App. S.D. 1965) ("[N]arcotic drugs produce results other than the mere relief of pain and, in strange and diverse respects, influence and affect the reactions and judgment of users.")

· Lilly v. Boswell, 242 S.W.2d 73, 76 (Mo. 1951) (the term "block," when used to express a measurement of distance, means a distance of about 300 feet)

Facts capable of accurate and ready determination

Even if a fact is not one of common knowledge, judicial notice of the fact may be taken if it "can be reliably determined by resort to a readily available, accurate and credible source." State v. Weber, 814 S.W.2d 298, 303 (Mo. App. E.D. 1991). Precedents in Missouri include the following cases:

· Estate of Summer v. Mo. Dep't of Mental Health, 424 S.W.3d 506, 508 n.2 (Mo. App. S.D. 2014) (a court may take judicial notice of the geographical location of cities in the state)

· Cornerstone Mortg., Inc. v. Ponzar, 254 S.W.3d 221, 229 (Mo. App. E.D. 2008) (a court may take judicial notice of calendars, including the dates on which particular days of the week fell)

· Meyer v. Dir. of Revenue, 909 S.W.2d 397, 402 (Mo. App. W.D. 1995) ("We may take judicial notice of geographical facts, including official highway maps . . . . [W]e observe that Highway 67 in Arkansas is a designated United States route, as its continuation is in Missouri."); but see Winters v. McNeill, 772 S.W.2d 749, 751–52 (Mo. App. S.D. 1989) (a court cannot take judicial notice of the location of streets in a city)

· State v. Selle, 367 S.W.2d 522, 525 (Mo. 1963) (the time of the rising of the sun on a particular day may be judicially noticed)

· Gershman Inv. Corp. v. Danforth, 475 S.W.2d 36, 37–38 n.2 (Mo. banc 1971) (judicial notice taken "that interest rates have greatly decreased in the past 18 months and, since February 18, 1971, the maximum FHA rate has been 7%," according to a September 17, 1971, publication of the U.S. Department of Housing and Urban Development)

· State v. Jordan, 761 S.W.2d 685, 687 (Mo. App. E.D. 1988) (no error for a "court to take judicial notice that the length of a gun barrel was 'less than sixteen inches'" because "the length of the gun barrel was a fact capable of immediate and accurate determination by resort to a readily accessible source of indisputable accuracy, the gun already admitted into evidence")

· Turner v. Cowart, 450 S.W.2d 441, 445 (Mo. 1969) (courts take judicial notice of life expectancies provided in the American Experience Table of Mortality, and it is not error to instruct the jury concerning them, though they are not introduced in evidence); see also Lowe v. Mercy Clinic E. Cmtys., 592 S.W.3d 10, 28–29 (Mo. App. E.D. 2019) (life expectancy was properly based on the mortality tables of the 2016 National Vital Statistics Report, which was before the jury after the court took judicial notice of it)

· Whitmoor Realty, LLC v. Beckerle, 588 S.W.3d 573, 578–79 (Mo. App. E.D. 2019) (proper to take judicial notice of bank prime loan interest rates)

As to the law, court records, and proceedings

Judicial notice is taken of the following:

· The Constitution and Laws of the United States. Wentz v. Chicago, B.&Q. R. Co., 168 S.W. 1166, 1170 (Mo. banc 1914) (state courts notice the Constitution and laws of the United States); Speas v. Kansas City, 44 S.W.2d 108, 113 (Mo. 1931) (judicial notice taken of a treaty between Kansas and Missouri, in the form of a resolution adopted by the legislatures and approved by the governors of Kansas and Missouri and approved by the Congress).

· Presidential Proclamations. Taylor v. W. Union Tel. Co., 231 S.W. 78, 79 (Mo. App. W.D. 1921) ("That the courts will take judicial notice of the acts of Congress and presidential proclamations thereunder is . . . clearly supported."); State v. Stoner, 395 S.W.2d 192, 193 (Mo. 1965) ("We take judicial notice that November 25, 1963, was proclaimed by President Lyndon B. Johnson to be a National Day of Mourning for the State Funeral of John F. Kennedy, 34^th President of the United States. November 25, 1963, was thus constituted a holiday.").

· Executive Orders. In re De Gheest's Estate, 232 S.W.2d 378, 381 (Mo. 1950) ("There is no doubt of our right to take judicial notice...