JUDICIAL NOTICE

Rule 201 allows judges to take “judicial notice” of certain types of facts, which means judges can accept as true, w/o formal proof (or can instruct jury to accept at true w/o proof) certain types of factual propositions

But 201 only applies if take “judicial notice” of adjudicative facts=

Matters of general knowledge in the jurisdiction (local geography, water freezes @32 degrees)

If do this in a criminal case the judge must instruct the jury that is may but need not accept the noticed fact as conclusive

In civil case can instruct must accept as conclusive

If the fact is deemed legislative, then 201 doesn’t apply and the judge can simply instruct the jury on the fact as a matter of law which then it cannot be contested

Judicial Notice in Civil Cases

If the matter is an adjudicative fact, then it is possible to take judicial notice of it (and can instruct must accept fact as conclusive), but it must be:

Generally known in the jurisdiction or

Ascertainable through reasonable undisputable sources

Judicial Notice in Criminal Cases

Operates in same way as in civil cases EXCEPT that under Rule 201(g), the jury is instructed that is MAY, but ISNT REQUIRED to accept as conclusive any fact that is judicially noticed.

It also cannot be given judicial notice for 1^st time on appeal cause jury never wld have considered it at trial level

Facts w/in Personal Knowledge of the Judge

Personal experience or knowledge is NOT a proper matter to be judicially noticed.

Case Law

United States v. Gould, (1976);

Facts: Gould was arrested for smuggling cocaine.

Procedure: At trial, the court took judicial notice of the fact that the substance found in Gould’s shoe (cocaine hydrochloride) was a derivative of the coca plant, and further that derivatives of the coca plant are specifically listed as Cat. II controlled substances. As such, he instructed the jury that if it found that the substance was cocaine hydrochloride, that they were directed that it was a Cat. II controlled substance. appealed, citing error that the judge did not instruct the jury that they could disregard the judicial finding that cocaine hydrochloride is a cat II controlled substance.
Issue: Whether the judge erred in failing to instruct the jury that they could disregard the judicial finding that cocaine hydrochloride is a cat II controlled substance.
Holding: No.
Reasoning: The limitation in FRE 201, requiring a judge to instruct a jury that it may disregard judicial findings of adjudicative facts, is not applicable to judicial notice of legislative facts. Whether a substance is on the “controlled substance list” is a legislative fact, and not subject to negation by the jury. Because the fact was a legislative fact, the lower court was correct in telling the jury they must accept it.

Kaggen v IRS, (1995)

Facts: Taxpayers here had funds seized from their bank accounts. Taxpayers argue that proper notice had not been received and the SOL had therefore run.

Issue: Whether court acted properly when it judicially noticed that 1) Banks sent customers monthly statements, and 2) that those statements tell customers to whom and the amounts that were paid out.

Holding: Yes, cause was an adjudicative fact

Reasoning: for firsts part of issue the court relies on FRE 201 which states that to take judicial notice of a fact, it must be generally known or ascertainable from good sources. Also, the fact cannot be in controversy. The appellant did not dispute that banks send out statements, or that their banks had actually sent them their statements showing how much had been paid to the IRS.

US v Jones, (1978)

Facts: Jones was convicted of wiretapping. After conviction, Jones appealed on the grounds that there was no proof that South Central Bell was a common carrier of interstate communications carrier. Conviction was overturned. Now at 6^th circuit.

Issue: whether the appellate court erred in overturning the conviction when the lower court...

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