Judicial Notice: An Underappreciated and Misapplied Tool of Efficiency.

AuthorZogby, Michael C.

MOST people have never heard about the 1858 murder trial of William "Duff" Armstrong. But everyone knows Armstrong's defense attorney: Abraham Lincoln. Before he was elected the Sixteenth President of the United States, Lincoln had struggled to make a name for himself. As he told the jury, Mrs. Armstrong--the widowed mother of his client--had shown him kindness, providing shelter and clothes when he had none. Seeking to reciprocate the generosity when her boy found himself in some trouble, Lincoln volunteered for her son's defense without a fee.

Armstrong was charged with murder in the first degree. Prosecutors alleged that on the night of August 29, 1857, Armstrong beat James Metzger so severely that he died the next day. A fellow by the name of Allen, witness for the prosecution, testified that he witnessed the blow. How? By the light of the full moon. It was 10 o'clock p.m., he testified, and the moon shined brightly. The court adjourned for the day.

That night, Lincoln went to a corner drug store in Beardstown, Illinois, and purchased an almanac. The next day, he was prepared. The moon on that night, the almanac showed, did not shine until several hours after 10 p.m. The court took judicial notice. Shortly thereafter, the jury acquitted Armstrong.

The reason for telling the story of the "Almanac Trial" is two-fold. The first is that judicial notice is valuable. Without it, Lincoln would have had to lay a foundation for introduction of testimonial evidence showing that the moon did not shine at the time Allen said, cross-examine Allen to impeach the witness or in the hopes he recanted, or offer documentary evidence and have it authenticated.

The second reason for the story is that by using judicial notice, Lincoln won the case. Once called the "deus ex machina of evidence," judicial notice provides a shortcut that is not only more efficient, but also more commanding than ordinary evidence. The jury was instructed to accept the fact that the moon did not shine until hours after midnight.

Judicial notice is one of the most underappreciated and frequently misunderstood doctrines of evidence, yet it remains a powerful tool for any trial attorney. Judicial notice can help establish important facts beyond dispute, and more significantly, help establish facts decisively. This article will discuss this important evidentiary doctrine, offer some helpful insights into successful application of judicial notice, and offer tips to avoid its misuse.

  1. A Brief History

    Judicial notice has long-standing roots. Based on the ancient adage manifesta non indigent probatione, or "what is known need not be proved," judicial notice is one of the oldest doctrines in common law history. Originally, judicial notice was a tool of convenience, used by trial judges with broad authority based on their own common knowledge.

    Eventually, however, Federal Rule 201 and its state counterparts paved the way for judicial notice to focus less on the common knowledge of judges, and more on the source of the fact. This seemingly slight change has broadened the application of the rule, and, coupled with the technological revolution, opened the door to an infinite amount of noticeable material.

    1. Early Common Law

      Surprisingly, the earliest use of judicial notice does not come from the rules of evidence for use at trial. Instead, the first application of judicial notice was at the motion to dismiss stage. Early American courts took judicial notice of obvious facts that were omitted from a pleading to avoid having to dismiss a claim. (1) Although judicial notice would soon become enshrined in the Federal Rules of Evidence and used during trials, it started as a simple means of convenience for the court. While the rule has evolved over the years, the importance of convenience has remained a constant, and judicial notice has developed into a tool to circumvent long and inefficient procedural hurdles in all stages of litigation.

      The use of judicial notice at trial developed as a matter of common sense and convenience. The opportunity to save time, work, and money made judicial notice a valuable resource. As John Henry Wigmore explained:

      The object of this rule is to save time, labor, and expense in securing and introducing evidence on matters which are not ordinarily capable of dispute and are actually not bona fide disputed, and the tenor of which safely be assumed from the tribunal's general knowledge or from slight research on its part... It thus becomes a useful expedient for speeding trials and curing informalities. (2) Wigmore identified three general classes of matters that were authorized to be judicially noticed:

    2. Matters which are necessary for exercising the judicial functions and are therefore likely to be already known to the judge by virtue of his office; B. Matters which are actually so notorious in the community that evidence would be unnecessary; C. Matters which are not either necessary for the judge to know nor actually notorious, but are capable of such positive and exact proof, if demanded, that no party would be likely to impose upon the tribunal of a false statement in the presence of an intelligent adversary. (3) This meant a fact could be judicially noticed where it was: (a) already known; (b) obvious; or (c) so easy to prove that no intelligent person would contradict it.

      The United States Supreme Court in Brown v. Piper, (4) provides a good example of judicial notice during the early common law period. In that case, Piper filed an action to prevent Brown from infringing on his patent for preserving fish using a freezing mixture. Brown denied that Piper held a patent on the freezing mixture, and further denied the novelty of the invention. The circuit court upheld the validity of Piper's patent.

      The Supreme Court reversed. Relying on judicial notice, the Court held that evidence of what is old and in general use at the time of an alleged invention is admissible. (5) In this instance, the Court noted that the freezing mixture was already well-known and used frequently at the time, for example, in preserving a corpse, or in animals which were found undecomposed in the ice of Siberia and "which must have been embalmed in ice for ages." (6)

      The Court added that to require proof of every fact "would be utterly and absolutely absurd," and that "[c]ourts will take notice of whatever is generally known within the limits of their jurisdiction; and, if the judge's memory is at fault, he may refresh it by resorting to any means for that purpose which he may deem safe and proper." (7) This case illustrates a classic example of the benefits of judicial notice, and the obvious results that stem from its application: a freezing mixture used to preserve fish is not novel when anyone can look around to see ice has been used for years to preserve other items.

      Other areas in which judicial notice has been used include verifiable documents, historical events, well-settled scientific facts, and most commonly, geographic locations. This is "for the obvious reason that geographic locations are facts which are not generally controversial[.]" (8) Other famous, but less obvious examples of judicial notice at common law include Gilbert v. Flint & P.M. Railway, (9) Wolfe v. Missouri Pacific Railway, (10) and Jacob & Flint & PMR Co. (11)

      The fact that some of these examples seem too obvious to be judicially noticed raises another interesting point. Facts that are commonly known today are not necessarily facts that were commonly known yesterday, or that will be commonly known tomorrow. That a freight car on a highway is not likely to frighten horses of ordinary gentleness was considered common knowledge in 1883. In 2017, not as much. In 1995, it was commonly known that Pluto was the ninth planet in the solar system. In 2017, it is commonly known that Pluto is not...

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