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The Inherent Power of Taking Judicial Notice

July 12, 2011

The power to take judicial notice of a fact is part of the inherent power of the court.  It is not initially an issue of evidence, and the power does not derive from Rule 201.  The power of judicial notice can be used to recognize the truth of two types of facts: legislative and adjudicative.  Rule 201 governs only adjudicative facts. 

The power to take judicial notice of a fact is part of the inherent power of the court.  It is not initially an issue of evidence, and the power does not derive from Rule 201.  The power of judicial notice can be used to recognize the truth of two types of facts: legislative and adjudicative.  (We’ll talk about the difference in a minute)  Rule 201 governs only adjudicative facts. 

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.

* * *

(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.

Much of this potentially confusing “judicial notice” stuff is discussed and clarified in United States v. Gould, 536 F.2d 216 (8th Cir. 1976) (Our Book, 904).  So, let’s talk about Gould, in which the Eighth Circuit explained the general concept of noticing facts.

It is apparent that courts may take judicial notice of any fact which is “capable of such instant and unquestionable demonstration, if desired, that no party would think of imposing a falsity on the tribunal in the face of an intelligent adversary.” 

536 F.2d at 219 (quoting IX J. Wigmore, Evidence § 2571, at 548 (1940)). 

The Court had earlier noted:

In a sense the question is one of the definition or meaning of words long in common use, about which there is no obscurity, controversy, or dispute, and of which the imperfectly informed can gain complete knowledge by resort to dictionaries within reach of everybody.  …  Common knowledge, or the common means of knowledge, of the settled, undisputed, things of life, need not always be laid aside on entering a courtroom.

536 F.2d at 218-19 (quoting Hughes v. United States, 253 F. 543, 545 (8th Cir. 1918)). 

Gould’s first contention was that the District Judge should not have taken judicial notice as he did.  Gould had been charged with importing cocaine, a schedule II controlled substance.  A “schedule II controlled substance” is defined under Federal law as any derivative of coca leaves.  A government expert witness testified that the substance seized from Gould was “cocaine hydrochloride.”  The court noted: “There was no direct evidence to indicate that cocaine hydrochloride is a derivative of coca leaves.”  536 F.2d at 218.  The Court then stated: “The fact that cocaine hydrochloride is derived from coca leaves is, if not common knowledge, at least a matter which is capable of certain, easily accessible and indisputably accurate verification.”  536 F.2d at 219.  Therefore, the District Judge had properly taken judicial notice that cocaine hydrochloride is a derivative of cocoa leaves.  Id. 

Gould’s next contention was that it had been error for the District Court to instruct the jury that it must accept this fact as conclusive.  Here is where Rule 201 really comes into play.  The District Judge had instructed the jury as follows:

If you find the substance was cocaine hydrochloride, you are instructed that cocaine hydrochloride is a schedule II controlled substance under the laws of the United States.

In addressing this contention, the Eighth Circuit explained the two different types of facts of which a court may take notice, “adjudicative facts” and “legislative facts,” and why the difference is important.

The precise line of demarcation between adjudicative facts and legislative facts is not always easily identified. Adjudicative facts have been described as follows:

When a court … finds facts concerning the immediate parties who did what, where, when, how, and with what motive or intent the court … is performing an adjudicative function, and the facts are conveniently called adjudicative facts. …

Stated in other terms, the adjudicative facts are those to which the law is applied in the process of adjudication. They are the facts that normally go to the jury in a jury case. They relate to the parties, their activities, their properties, their businesses.  (citation omitted).

Legislative facts, on the other hand, do not relate specifically to the activities or characteristics of the litigants. A court generally relies upon legislative facts when it purports to develop a particular law or policy and thus considers material wholly unrelated to the activities of the parties.

Legislative facts are ordinarily general and do not concern the immediate parties. In the great mass of cases decided by courts … , the legislative element is either absent or unimportant or interstitial, because in most cases the applicable law and policy have been previously established. But whenever a tribunal engages in the creation of law or of policy, it may need to resort to legislative facts, whether or not those facts have been developed on the record.  (citation and footnote omitted).

Legislative facts are established truths, facts or pronouncements that do not change from case to case but apply universally, while adjudicative facts are those developed in a particular case.

536 F.2d at 219-20.

The Court then applied these principles to the facts of the case:

Applying these general definitions, we think it is clear that the District Court in the present case was judicially noticing a legislative fact rather than an adjudicative fact. Whether cocaine hydrochloride is or is not a derivative of the coca leaf is a question of scientific fact applicable to the administration of the Comprehensive Drug Abuse Prevention and Control Act of 1970.  21 U.S.C. § 801 et seq. (1970).  The District Court reviewed the schedule II classifications contained in 21 U.S.C. § 812, construed the language in a manner which comports with common knowledge and understanding, and instructed the jury as to the proper law so interpreted. It is undisputed that the trial judge is required to fully and accurately instruct the jury as to the law to be applied in a case. (citation omitted) When a court attempts to ascertain the governing law in a case for the purpose of instructing the jury, it must necessarily rely upon facts which are unrelated to the activities of the immediate parties. These extraneous, yet necessary, facts fit within the definition of legislative facts and are an indispensable tool used by judges when discerning the applicable law through interpretation.[FN6] The District Court, therefore, was judicially noticing such a legislative fact when it recognized that cocaine hydrochloride is derived from coca leaves and is a schedule II controlled substance within the meaning of § 812.

FN6. The Notes of the Advisory Committee to rule 201 offer support for the proposition that courts utilize legislative facts when they interpret a statute.

While judges use judicial notice of “propositions of generalized knowledge” in a variety of situations: determining the validity and meaning of statutes, formulating common law rules, deciding whether evidence should be admitted, assessing the sufficiency and effect of evidence, all are essentially nonadjudicative in nature. (emphasis added.)

536 F.2d at 220.

The difference between “adjudicative facts” and “legislative facts” is important in determining whether or not Rule 201 applies.  In Gould, the specific issue was whether the District Court erred in charging the jury that it must accept the judicially noticed fact as conclusive.  Rule 201(g) would have prevented the District Court from making that charge.  However, because the facts noticed were “legislative,” the Court held that Rule 201 did not apply, the noticed facts were conclusive, and their truth was binding on the jury.

Judicial notice and Rule 201 hardly ever come into play, but Gould is a great resource when it does.

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