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Judicial Notice

Judicial notice is the knowledge or recognition that a fact is true without evidence to support its truth. An example of a fact that a court may take judicial notice of is that the sky is blue. Most people know and understand that the sky is blue and no proof is needed to establish that the sky is blue.

The court may take judicial notice of an adjudicative fact or fact relevant to the case whether or not requested to take such notice. The court may take judicial notice of any fact on its own volition. A judicially noticed fact is not conclusive in a criminal trial. However, if one party seeks to have the court take judicial notice of a fact, the proponent must comply with certain requirements. The proponent must:

  • Formally request that the court take judicial notice of a fact.
  • The fact must be a matter of common or community knowledge or must be easily verified.

Judicial Notice Not Available

Judicial notice may not be taken in all instances. Judicial notice of a fact may not be taken in the following circumstances:

  • During grand jury proceedings.
  • During extradition proceedings.
  • With respect to criminal summonses.
  • With respect to bench warrants.
  • With respect to bail or sentencing proceedings.

Opposition to Judicial Notice

The opposing party may object to the court taking judicial notice of a fact. The opposing party may challenge judicial notice on the basis that it is improper, the fact is not a proper fact to take judicial notice of, or the proposed fact is irrelevant. The opposing party’s opposition to the proposed judicial notice must be timely.

Tacit Judicial Notice

Tacit judicial notice is when the court takes judicial notice of a fact without directly stating that it did take judicial notice. The court basically assumes or implies a definition of a certain term.

Mandatory or Permissive Judicial Notice

The court must take mandatory judicial notice of any statute, federal law, or official regulation. The court may take judicial notice of a municipal ordinance.

Juries and Judicial Notice

The states are split with respect to informing the jury that it is not required to accept the court’s ruling on judicial notice of a fact. Other states require that the jury accept any judicially noticed fact as conclusive.

Appeals and Judicial Notice

Judicial notice of any type of fact is not conclusive on an appellate court. However, appellate courts have the ability to take original judicial notice, although there is some dispute as to whether this is proper in criminal cases.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.

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