Chapter 30 APPELLATE JUDICIAL NOTICE
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Chapter 30 APPELLATE JUDICIAL NOTICE
I. INTRODUCTION
Imagine yourself counsel for appellant in the case of Gaither v. District of Columbia, 333 A.2d 57 (D.C. 1975). Your client, an inmate at the Lorton Reformatory in Virginia, was injured when a gas burner, which he was ordered to light despite his protest that he could smell escaping gas, exploded in his face. You brought an action against the District of Columbia, which you alleged owned and operated the correctional facility. You called only the plaintiff and his mother to testify after which you rested your case. The defendant moved for a directed verdict on two grounds: that there was no evidence of any negligence for the jury to consider and that you did not establish that the defendant owned and operated the facility. To your astonishment the trial court agreed with both of the defendant's arguments and directed a verdict against you.
You file an appeal resolute in your belief that the trial court was in error in holding that the evidence of negligence was not legally sufficient, but you are devastated by the prospect that the question might never be reached because you in fact had offered no evidence at trial to show that the defendant did own and operate the Lorton facility.
Fortunately for the appellant in Gaither, his plight did not prove hopeless. The District of Columbia Court of Appeals took judicial notice of the fact that Lorton was owned and operated by the defendant. The Court was satisfied that "[a] reasonable person with reasonable knowledge of the District of Columbia community would understand that the District owns and operates its own reformatory."1
II. JUDICIAL NOTICE UNDER THE RULES OF EVIDENCE
Judicial notice, whether taken in the trial court or first the first time on appeal, can substitute for formal proof of a fact when formal proof is clearly unnecessary to enhance the accuracy of the factfinding process.2
Rule 201 of the Federal Rules of Evidence, from which Maryland Rule 5-201 derives, provides a good framework for a discussion of judicial notice because the rule and the Advisory Committee's Note to the rule encapsulate much of the common law and the commentators' views on the subject.
The rule provides that to be judicially noticed a fact must be one not subject to reasonable dispute that (1) is generally known within the trial court's territorial jurisdiction or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. The rule permits the court to notice facts on its own or on the motion of a party, and it requires that the party be afforded an opportunity to be heard on the propriety of taking notice before or after judicial notice has been taken, an aspect of the rule that Md. Rule 5-201(e) instructs is inapplicable to appellate judicial notice.
Rule 201 regulates only judicial notice of adjudicative facts, and not of legislative facts. Adjudicative facts are those which relate to the parties of the case. Legislative facts are facts which have relevance to legal reasoning and to the law-making process in general. The distinction was drawn by Professor Kenneth Davis in his well-known article, An Approach to Problems of Evidence in the Administrative Process, 55 Harv. L. Rev. 364, 404-07 (1942). An example of an adjudicative fact is that the radar device used on a police vehicle accurately reflects the speed of a passing motorist. This example was frequently used by Judge Irving Younger in his lectures on evidence. On the other hand, a court's recognition that adverse testimony by a spouse in a criminal case would likely destroy a marriage involves a legislative fact. This example is drawn from the Advisory Committee's Note to Rule 201. Unlike Fed. R. Evid. 201, the common law generally does not distinguish between adjudicative and legislative facts.
Subdivision (d) of Rule 201 states that judicial notice may be taken at any stage of the proceedings, and both the Advisory Committee's Note and Md. Rule 2-501 make clear that this includes the appellate level. As an abstract proposition, therefore, an appellate court may take judicial notice of any matter of which the trial court may. As a practical matter, however, the appellate advocate must often overcome an additional hurdle: the instinctive disposition of many appellate judges not to consider a matter not part of the record. The appellate advocate is invariably called upon to explain why the fact proffered was not proven or proffered for notice at the trial. Counsel's ability to justify the omission from the record may be an important factor in the appellate court's decision whether to notice the fact or not. For example, if the fact proffered was not proven at the trial because it did not come into being until after the trial was completed, the appellate court may be less reluctant to notice the fact than if the fact was not proven because by oversight the lawyer failed to prove it or because the fact did not appear to be important at the time of trial.
III. JUDICIAL NOTICE IN APPELLATE COURTS
Even in those situations where a lawyer simply forgets to prove an important fact, however, the appellate court may be persuaded to take judicial notice of it. Judge Soper first articulated the test for recognizing an exception to the settled rule that the appellate court will not travel outside the record in the case of Morse v. Lewis, 54 F.2d 1027 (4th Cir. 1932), as follows: "But in exceptional cases . . . the dictates of logic will yield to the demands of justice, and the courts, in order to reach a just result, will make use of established and uncontroverted facts not formally of record in the pending litigation."3 The Supreme Court of Maryland embraced this test in Fletcher v. Flournoy, 198 Md. 53, 81 A.2d 232 (1951), and has been applied since in a number of cases.4
In Dashiell, 396 Md. at 174-79, 913 A.2d at 25-27, the Supreme Court...
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