1. A court may take judicial notice of a fact of common knowledge. The fact must be one not subject to reasonable dispute because 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. Courts also may take judicial notice of laws. Judicial notice may be taken by any court at any stage of the proceedings. The judge usually must give the parties notice and an opportunity to object before taking judicial notice.
2. Procedure
(A) If a party knows in advance that it will request judicial notice, that request should be made in a pre-trial motion with supporting documents attached and
reasonable notice to the opposing party.
(B) If judicial notice is unanticipated, a request may be made for the first time during trial. The party requesting notice must supply the judge with the
necessary information.
(C) Before taking judicial notice, the judge should notify the parties before taking judicial notice, give them an opportunity to be heard, and hold a hearing.
3. Rule 201 provides that the court must take judicial notice if it is requested by a party and if that party supplies the court with the necessary information.
4. Conclusive Effect of Judicial Notice
(A) Civil cases. Under Rule 201(g), any fact judicially noticed in a civil action is conclusive. Contrary evidence will not be admitted.
(B) Criminal cases. In a criminal case, a judicially noticed fact is merely presumed to be true and the adverse party may introduce evidence contradicting it.
States are split on whether the State may rely solely on judicial notice to prove an essential element of a criminal charge. Usual context -- added criminal
penalty for selling drugs within 1000 feet of a school, judicial notice that the building called Rogers School is in fact a school.
5. Facts of Common Knowledge. A court may take notice of reasonably indisputable facts of common and general knowledge within its jurisdiction, including facts of public record, e.g., that a building called Howe Military Institute was a "school," who is a county commissioner). Facts within the personal knowledge of the trial judge are not appropriate subjects for judicial notice unless they are also facts of common knowledge.
6. Scientific Facts
(A) In general. Courts will take notice of matters of science which are reasonably indisputable. E.g., a vehicle traveling 40 m.p.h. covers 60 feet per second. If a scientific fact is complicated, the court can hear expert testimony before taking notice. Courts must be careful to distinguish facts of common knowledge from scientific facts in determining whether a particular fact is subject to "reasonable" dispute. If a matter of basic science is generally accepted within the scientific community, it should be noticed, even though some segments of the general public may disagree with it. A scientific fact is not reasonably disputed if the disagreement with it stems from fear, ignorance or religion. An example of the potential confusion is Weeks v. Scott in which the court erroneously refused to take judicial notice of ways in which the AIDS virus is transmitted because of a widespread public belief that science did not know the answer.
(B) Reliability of scientific evidence. For purposes of satisfying the foundation requirement of Rule 702(b) that scientific evidence be reliable, the court may take judicial notice that a well-established scientific test or principle is reliable.
(C) Mathematical calculations. A court may take notice of basic mathematic equations, such as how to calculate the area of a circle, and then perform those calculations.
7. Facts in reference books, dictionaries and encyclopediae may be noticed. These are called "readily verifiable" facts.
8. Notice of Law. Courts may notice four categories of law:
(a) Case law, statutes and constitutional provisions.
(b) Rules of court, such as the R. Civ. P.
(c) Published regulations of government agencies.
(d) Codified municipal ordinances. However, uncodified ordinances may not be noticed according to pre-Rules cases.
The court may notice state or federal law from any jurisdiction within the United States. However, the courts do not take judicial notice of the laws of foreign
countries.
9. Court Records. The courts may take notice of the pleadings, filings, and other content of the record in the present case. . Notice may not be taken of the records from other cases, even on a related subject with related parties. For example, post-conviction relief hearings and probation revocations are considered separate proceedings from the original criminal case, so the court cannot take notice of the records from the original prosecution.
10. Judicial Notice Other Than at Trial. Judicial notice may be taken by any court at any stage of the proceedings, e.g., on appeal.
OVERVIEW OF PRESUMPTIONS
1. A presumption is a doctrine of substantive law, not evidence.
2. In civil cases, a presumption is a temporary substitute for evidence. A party who has the burden of proof (usually the plaintiff) may invoke a presumption in lieu of evidence, and thereby survive a motion for summary judgment or direct verdict. For example, every person is presumed to be of sound mind to execute a will, so the administrator need not offer any proof of mental competency in order to probate the will.
3. In civil cases, presumptions allocate the burden of proof. For example, there is a presumption that a death is not suicide, and a presumption that a fire is of natural origin. Therefore, an insurance company seeking to avoid paying a claim would have to prove suicide or arson, regardless of which party is nominally the plaintiff.
4. The law varies on what happens if the opposing party comes forward with evidence to rebut the presumption. In some cases, the presumption then vanishes entirely; in others, the presumption is thought to be so universally true that it remains in the case as evidence that may be considered by the jury. The specific procedural details of individual presumptions vary considerably.
5. If the opponent fails to present evidence rebutting the presumption, the presumption usually becomes conclusive and the jury will be instructed that it must consider the fact to be true.
6. In criminal cases, presumptions are controlled by the constitutional principle that the state must prove guilt beyond a reasonable doubt. A presumption that relieved the prosecution of this burden would be unconstitutional, so presumptions in criminal cases are always permissive and never mandatory. See Sandstrom v. Montana, 442 U.S. 510 (1979). The court should instruct the jury that it may, but does not have to, use the presumption.