Judicial notice on appeal: a history lesson in recent trends.

• Author: Easley, Dorothy F.
• Position: Appellate Practice

Judicial notice is defined in one dictionary as "the authority of a judge to accept as facts certain matters which are of common knowledge from sources that guarantee accuracy or are a matter of official record, without the need for evidence establishing the fact." (1) As appellate courts around the country are starting to amend their appellate rules to specifically address judicial notice, the issue of judicial notice on appeal remains important. This article builds on a 2006 article on judicial notice (2) to look at the most current trends and suggests that our appellate rules should be amended to reduce confusion and to promote certainty over what can and should be the subject of a judicial notice request.

The Quandary: To "Notice" or Not to "Notice"

Judicial notice of a fact takes away the need for the parties to prove that fact in court. Appellate courts, however, are not fact-finding tribunals; they are reviewing bodies that evaluate and correct harmful errors made in lower courts, where the litigant's counsel lodged a contemporaneous and specific objection and argument. For this reason, preservation of a "frozen appellate record"--the facts and issues that relate to a case that must be first presented to the judge or jury through briefing, testimony, or tangible evidence--is one of the most fundamental principles of appellate practice. Consistent with this requirement of preservation is the basic rule that evidence cannot be presented for the first time on appeal.

At the same time, if each fact in a case had to be proven through formal presentation, the simplest case would take weeks to complete. To reduce burdens on the judicial system, all legislatures nationwide have approved statutes and codes, and courts have approved court rules that allow a court--at all levels--to recognize facts that constitute common knowledge without requiring proof from the parties. Such rules can improve court efficiency at the trial level and, at the appellate level, improve efficiency and the likelihood of a decision on the merits.

Judicial notice allows appellate courts to resolve disputes without time-consuming remands due to procedural defects having no effect on the outcome. Those seeking to repair procedural defects or plug holes in deficient records can reasonably request that an appellate court take judicial notice. But it is a misuse of judicial notice to allow clever attempts to supplement the record with material evidence that plainly should have been first presented below. Whether judicial notice is viewed as a weapon or a means of correcting procedural defects, practitioners must be aware of the uses and limitations of that part of the record that is "unfrozen."

Historical Patterns to Predict Future Trends

Our courts have historically considered the writings and studies of social science experts on legislative facts, with or without introduction into the record below, and with or without consideration by the trial court. (3) Supreme Court justices have often used research from the social sciences and other nonlegal material to establish or criticize a rule of law. (4) For an appellate advocate, it would be a strategic oversight to fail to consider presenting to an appellate court important information that could be the subject of judicial notice.

In his brief in support of a state law limiting work hours for women, Louis Brandeis demonstrated in Muller v. Oregon, 208 U.S. 412 (1908), the importance of using extra-legal sources, advancing medical and social science research that documented the debilitating effect of working long hours on women. (5) He used that substantial body of research before the U.S. Supreme Court to defend Oregon's limits on the number of hours women could work. (6)

Social and scientific studies have remained significant to decisions in major constitutional cases to avoid unjust results. (7) The nation's highest court has frequently employed judicial notice to ensure that its decisions were connected to the society in which we operate. In Lee v. Weisman, 505 U.S. 577, 593-94 (1992), in considering whether a prayer at graduation violated the First Amendment, the Supreme Court relied on psychological studies supporting the "common assumption that adolescents are often susceptible to pressure from their peers towards conformity and that influence is strongest in matters of social convention." Writing for the majority, Justice Kennedy relied on three psychological studies for support. (8)

In United States v. Leon, 468 U.S. 897, 907-08, 912-14 & nn. 6, 9 & 11 (1984), Justice White cited sociological field research to support a good faith exception to the Fourth Amendment exclusionary rule. In Mississippi University for Women v. Hogan, 458 U.S. 718, 738-39 (1982), Justice O'Connor cited sociological surveys to establish the unconstitutionality of a state statute that excluded males from enrolling in state-supported nursing school. In Ballew v. Georgia, 435 U.S. 223, 232-35 nn. 10-14 (1978), Justice Blackmun cited psychological studies to establish the unconstitutionality of five-member juries in state criminal trials. In United States v. Martinez-Fuerte, 428 U.S. 543, 552-54 (1976), Justice Powell cited epidemiological and demographic research to support the constitutionality of fixed checkpoint stops of vehicles at borders. And in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 58-60...