Judicial notice on appeal: why all the fuss?

• Author: Easley, Dorothy F.

One of the most fundamental principles of appellate law is=preservation below." The basic rule is evidence cannot be presented for the first time on appeal. After all, appellate courts are not fact-finding tribunals. They evaluate and correct harmful errors lower courts made after the litigant's counsel lodged a contemporaneous and specific objection and argument. Instances of reversal for fundamental, unpreserved error today are rare.

So, it's no wonder that the far-from-predictable rules of judicial notice on appeal leave practitioners uncertain about what they can present, if anything, for the first time on appeal. Some of those reading this article, for example, may not even be aware that judicial notice on appeal is even possible, let alone appropriate, provided the rules for doing so have been followed. This article discusses the reasons behind judicial notice, and how those reasons have played out in the more complicated setting of the appellate forum, where records are supposed to be "frozen in time."

The Origins of Judicial Notice

Though judicial notice is a concept much older than the illustration about to follow, one of the most famous tales of the inextricable value of judicial notice concerns Abraham Lincoln, one of our nation's great trial lawyers. The story has numerous variations (and criticisms). But the following is most appropriate for this discussion.

Lincoln defended a man named William "Duff" Armstrong, who had been charged with murder. (1) Armstrong's co-defendant, Jim Norris, had already been convicted of murder, and Armstrong was to be tried next. (2) The testimony at Norris' trial was that, on the evening of August 29,1857, Armstrong and Norris argued with a man named Metzker, who was later found dead. Charles Allen was the state's key eyewitness. (3) Allen claimed he saw Norris and then Armstrong strike Metzker in the head. (4) The prosecution used Allen's eyewitness testimony to convict Norris. (5)

During Armstrong's trial, Allen again presented testimony similar to his testimony in the Norris trial. (6) Lincoln cross-examined Allen in great detail, directing much of his examination to Allen's claim that he had seen the whole attack on Metzker in bright moonlight on the evening of August 29, 1857, from a distance of some 150 feet. (7) At the end of the cross-examination, Lincoln produced an 1857 edition of an almanac that contained information that the moon would not have been shining brightly on August 29, 1857. (8) Based on that information, Lincoln argued Allen could not have clearly seen the attack from 150 feet away. (9) Many have since posited that Lincoln's production of the almanac--and the lower court's judicial notice of it--broke the prosecution's case and won the acquittal of Lincoln's client. (10)

But did the court properly allow the almanac? Without question, the issue of whether the moon shone brightly that evening was relevant and vital to the prosecution, because Allen testified he could see the attackers at night some 150 feet away. But whether the moon shone brightly that evening was also a basic, indisputable fact, which is precisely why a trial court correctly allowed it. The question in this article is whether it would have been allowed under Florida's appellate judicial notice standards today?

Judicial Notice in Florida

The answer is a resounding "yes, maybe." The debate over judicial notice is not easily resolved. There is a strong policy in appellate practice that parties are prohibited from raising issues or arguments or presenting evidence or documents for the first time on appeal. Yet, there is an equally strong policy that appellate courts not render decisions contrary to facts and law undisputed and incontrovertible. As a result, in the interests of justice, Florida appellate courts will, as a matter of actual practice, judicially notice matters for the first time on appeal, usually without even referencing the evidence code.

Meaning, before the adoption of Florida's evidence code, (11) appellate courts often took judicial notice of many different kinds of facts. The Supreme Court of Florida judicially noticed the unstable or fluctuating real estate values at the time a particular contract was made; (12) that the tourist industry was one of state's greatest assets for purposes of determining whether a statute authorizing a municipal resort tax was constitutional; (13) of extreme deflation in Florida real estate values after the collapse of the 1925 boom and almost total lack of market for real estate in Dade County in June 1928; (14) that the public largely measures grades of clothing by the sales price; (15) that the par value of stock is very often in excess of its actual cash or market value; (16) and that growing timber is a valuable asset in Florida and that the cutting of timber out of "cut-over pine" lands takes away the value of those lands. (17)

Pre-evidence code, Florida's district courts of appeal, likewise, judicially noticed a wide variety of adjudicative facts including the fact of general market conditions concerning realty at particular times; (18) that a bridge or causeway connecting the mainland with a series of undeveloped keys would have a substantial impact and influence on the value and use of the keys property involved; (19) that between the April 1956 date of the contract to sell land and the September 1959 date of the final decree denying specific performance of the contract, land values in the area had increased substantially; (20) that land having a fair market value of $500 to $1,000 an acre is immediately enhanced in value from $25,000 to $50,000 an acre after a limited access highway and its necessary interchange facility have been constructed across it. (21)

The courts also noticed that a hotel was within a 25-mile radius of the airport; (22) that the credit life insurance business operates extensively in Florida in response to legitimate demand; (23) that a substantial difference exists between a type of business generally conducted by an operator of terminal facilities for storage of gasoline and petroleum products in great bulk pending resale versus that type of business conducted generally by wholesalers in gasoline and petroleum products; (24) that in a proceeding to recover the cost of obtaining a supersedeas bond to cover costs, surety companies require security to be given to protect themselves in the event the judgment debtor is unable to pay the judgment if the judgment were affirmed on appeal, and that the bond premium required is considerably less when the securities are of a type readily convertible into cash; (25) and that, in a libel action against a newspaper for publication of a news item, a member of the newspaper staff wrote the newspaper's headlines, rather than general dispatch. (26)

But Florida's Supreme Court and appellate courts have also refused to notice matters for the first time on appeal, precisely because they were not presented in the trial court. (27) These decisions reflect that the appellate courts were deciding whether to judicially notice an adjudicative fact on a case-by-case, issue-by-issue basis, yielding little direction for appellate parties as a...