Monday, February 20, 2012
MBE Fast Fact: Judicial Notice
A few points to remember about Judicial Notice. There are two types of facts that can be accepted as true without formal presentation of evidence: Notorious facts, and manifest facts. Notorious facts are those facts that are indisputable and are matters of common knowledge. Manifest facts are indisputable facts that are not matters of common knowledge, but are capable of verification by resort to easily accessible sources of unquestionable accuracy. Only when dealing with adjudicative facts (facts relating to the case at hand) need you determine whether the fact is manifest or notorious. Legislative facts (those outside the scope of the case at hand, and dealing more generally with lawmaking) need not be either manifest nor notorious in order to be judicially noticed. In regards to procedure, a court can take judicial notice of a fact whether or not it is requested to do so by a party to the lawsuit, but if a court does not take judicial notice of a fact on its own accord, a party must formally request that notice be taken of that particular fact. Finally, a judicially noticed fact is conclusive in a civil case, but not in a criminal case. In a criminal case, it's permissible to instruct the jury that it may accept as conclusive any judicially noticed fact, but it's not permissible to instruct the jury that it must accept as conclusive any judicially noticed fact.