SC Lawyer, July 2011, #3. Using the Tools the Rules Gave You: An Overview of Judicial Notice.

• Author: By the Hon. G. Ross Anderson Jr.

South Carolina BAR Journal

2011.

SC Lawyer, July 2011, #3.

Using the Tools the Rules Gave You: An Overview of Judicial Notice

South Carolina Lawyer July 2011 Using the Tools the Rules Gave You: An Overview of Judicial Notice By the Hon. G. Ross Anderson Jr. Introduction

The prosecutor's burglary trial had been going smoothly. Through eyewitness testimony, she had proven that on April 14, the defendant broke into a house at exactly 8:03 p.m. and emerged minutes later with stereo equipment under his arm. Before resting the State's case, she reviewed the elements of burglary in her head. Breaking or entering? Check. Into the dwelling of another? Check. Without consent? Check. During the nighttime

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Suddenly it hit her. She had no evidence showing that the defendant broke into the house during the nighttime. Sure, everyone knew that the sun sets at about 8 p.m. that time of year, but she had no witnesses who could say for sure that they saw the defendant break into the house at night. With no evidence in hand on when nighttime began on April 14, how could the prosecutor establish this key fact?

To any trial lawyer who has stayed sharp on using court rules as advocacy tools, the answer to this question should be obvious: by getting the trial court to take judicial notice of what time the sun set. But for those of you who have lapsed into the comfort of trial practice, as a suggestion, you may want to clean the rust from the tools of practice and revisit Federal Rule of Evidence 201, which states as follows:

Rule 201. Judicial Notice of Adjudicative Facts

(a) Scope of rule.

This rule governs only judicial notice of adjudicative facts.

(b) Kinds of facts.

A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

(c) When discretionary.

A court may take judicial notice, whether requested or not.

(d) When mandatory.

A court shall take judicial notice if requested by a party and supplied with the necessary information.

(e) Opportunity to be heard.

A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.

(f) Time of taking notice.

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

(g) Instructing jury.

In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.

Any well-developed litigation strategy should include judicial notice, a tool that can be used at any stage of the proceeding, by any party to the proceeding, to save everyone involved time, effort and expense. Unfortunately, my 31 years on the bench have taught me that few lawyers think to employ this tool, and fewer still understand how to use it properly.

Judicial notice allows a court to establish a proposition without requiring a party to introduce evidence of that proposition's truth. Brett Hubler, Case Summary, United States v. Newland, 60 S.C. L. Rev. 1207, 1207 (2009) (internal citation omitted). Put simply, a court can take judicial notice of anything that is generally known and not subject to argument. Rooted in common law, this practice is set forth, with some constraints, in Rule 201 of the Federal Rules of Evidence, as well as in many state evidence rules. See, e.g., S.C. R. Evid. 201. Judicial notice can be a very powerful advocacy tool. When a party makes a properly supported request for judicial notice of a fact, the court must take notice of that fact...