All About A Judicial Notice

Dan Goodman

A Judicial Notice is generally a request in writing by a party to a suit, to the judge assigned to the suit, for him or her to recognize a fact or set of facts and/ or a legal document or set of legal documents which relate(s) to the suit. A fact, to be judicially noticed by a judge, is one which is universally admitted (for example, a man requires oxygen to live), one outside the area of reasonable controversy (for example, December 25th is a legal holiday), one which is generally known within the jurisdiction of the court (for example, a name of a building, a street, a business) or one which can be verified by consulting a source whose accuracy cannot be questioned (for example, the day of the week on a certain date by referring to a calendar). Legal documents include, but not limited to, laws of foreign countries, treaties, the Constitution of the United States, the constitutions of the several States, acts of Congress, statutes of the several States, common law of the several States, uniform law of the several States, municipal and county ordinances, decisions of federal courts, decisions of state courts, regulations of governmental agencies, contracts, land deeds, patents, rules of court, as well as pleadings, filings and other content of the docket in the suit. “When a court takes judicial notice of a certain fact, it obviates the need for parties to prove the fact in court. Ordinarily, facts that relate to a case must be presented to the judge or jury through testimony or tangible evidence. However, if each fact in a case had to be proved through such presentation, the simplest case would take weeks to complete. To avoid burdening the judicial system, all legislatures have approved court rules that allow a court to recognize facts that constitute common knowledge without requiring proof from the parties.” (Sources 1) Legal documents provide the court with information which relate to the suit, in legal terms. For example, if the Supreme Court of the United States has decided a case similar to the suit at hand, then a party to the suit would inform the court through a Judicial Notice. Another example (Sources 2).

Judicial notices may be permissive or mandatory on the judge. In general, a judicial notice of a fact is permissive; that is, the judge can decide whether to recognize it or not. A judicial notice of a legal document, however, is in general, mandatory upon the judge. There is a distinction between a fact being judicially noticed in a civil suit and a criminal case. In a civil suit if a fact or set of facts is/ are recognized by the judge, then the judge’s decision is controlling in the case. That is the matter is closed. The only option for reconsideration is on appeal, if error is claimed by the party making the appeal. In a criminal case, judicial notice of a fact or set of facts is not binding on the jury, if a jury is selected. A Request for Judicial Notice can be done two ways. During a proceeding in the courtroom a party to the suit can request orally to the judge for judicial notice of a fact or legal document. The party so requesting should have and present the necessary information to the judge. The judge should then, or at a later time, notify the parties of a hearing for the request, if an objection is made by opposing party. Preparing the legal form (Request for Judicial Notice) and sending a copy to the court and to all parties to the suit. The manner of sending this form is virtually the same as a motion. See my work “All About A Motion.” With the request, copies of any legal documents are to be attached. Some courts also require a separate sheet listing the specific items to be judicially noticed. Lastly, a Request for Judicial Notice, in general, may be filed by a party at any stage of the suit. This includes appeals.

____________ Sources: 1. 2.

© 2009

Dan Goodman