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[JUDICIAL NOTICEFED. EVID. RULE 201]

Rule 201 governs judicial notice of facts relating to the case that are indisputable.¹ It does not include judicial notice of legal analysis or laws². The courts= acknowledgment of such matters emanates from statutory and case law authority. Courts may also acknowledge foreign law pursuant to Rule 26.1 of the Federal Rules of Criminal Procedure.³

Facts which may be acknowledged by the court include matters:

• generally known within the territorial jurisdiction of the trial court,

See                  Gov. of Virgin Is. v. Gereau, 523 F.2d 140 (3d Cir.), cert. denied, 424 U.S. 917 (1976) [error for trial court to take judicial notice of his own extra record knowledge];

U.S. v. Anderson, 528 F.2d 590 (5th Cir.), cert. denied, 429 U.S. 837 (1976)[proper to take notice a federal correctional institution is within special territorial jurisdictions of U.S.].

See also           U.S. v. Daly, 1999 WL 138895 (E.D.La.), [holding that a judicially noticed fact “must be one not subject to reasonable dispute in that it is either (1)[g]enerally known within the territorial jurisdiction of the trial court or (2)[c]apable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.” F.R.E. 201(b). Judicial notice of adjudicative facts dispenses with the need to present other evidence or for the fact finder to make findings as to those particular facts.]

• capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be

1. Referred to as Aadjudicative facts.
2. Commonly referred to as legislative facts.
3. A party who intends to raise an issue concerning the law of a foreign country shall give reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The courts determination shall be treated as a ruling on a question of law.  Rule 26.1, Federal Rules of Criminal Procedure.

See                  U.S. v. Solzmann, 417 F. Supp. 1139 (E.D. N.Y. 1976), aff’d., 548 F.2d 395 (2d Cir. 1976) [notice taken of fact Israel had extradited individuals in past];

Harris v. U.S., 431 F. Supp. 1173 (E.D. Va. 1977) [notice taken of activities which constitute a pyramid scheme];

Commonwealth of Massachusetts v. Wescott, 431 U.S. 322, 97 S.Ct. 1755 (1977) [fishing license on file with Coast Guard];

U.S. v. Gould, 536 F.2d 216 (8th Cir. 1976) [notice that cocaine hydrochloride was a “Schedule II Controlled Substance” [derived from opium or coca leaves]];

U.S. v. Moreno, 579 F.2d 371 (5th Cir.), 99 S.Ct. 1217 (1979) [characteristics of border checkpoint previously held to be “functional equivalent of border]; Government of Canal Zone v. Burjan, 596 F.2d 690 (5th Cir. 1979) [government appropriately certified];

U.S. v. Hitsman, 604 F.2d 443 (5th Cir. 1979) [college transcript].

JUDICIAL RECORDS

See                  U.S. v. Halderman, 559 F.2d 31 (D.C. Cir.), cert. denied, 431 U.S. 933 (1977) [prior related hearing at which court had presided]; Kinnett Dairies, Inc. v. Farrow, 580 F.2d 1260 (5th Cir. 1978)[records in court’s files from prior proceedings];

U.S. v. Hawkins, 566 F.2d 1006 (5th Cir.), cert. denied, 439 U.S. 848 (1978) [jury selection plan].

OFFICIAL RECORDS

Joseph v. United States Civil Service Comm’n, 554 F.2d 1140 (D.C. Cir. 1977) [election records].

OPPORTUNITY TO BE HEARD [FED. R. EVID. RULE 201(e)]

A party is entitled to an opportunity to be heard as to the propriety of taking judicial notice.

See                  Conway v. Chemical Leaman Tank Lines, Inc., 610 F.2d 360 (5th Cir. 1980) [as to such notice on appeal].

INSTRUCTING THE JURY REGARDING JUDICIAL NOTICE [FED. R. EVID. RULE 201(g)]

While the court instructs the jury to accept as conclusive any fact judicially noticed in a civil action, “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”. U.S. v. Anderson, 528 F.2d 590 (5th Cir. 1976), cert. denied, 425 U.S. 837 [“you may and are allowed to accept as fact proven before you just as though there had been evidence to that effect before you” not reversible error because not “require” jury to accept same]; U.S. v. Jones, 580 F.2d 219 (6th Cir. 1978) [after jury trial appellate court cannot take judicial notice, since jury would have been entitled to disregard same]; Government of Canal Zone v. Burjan, 596 F.2d 690 (5th Cir. 1979) [different result where criminal trial was before the court].