Using Judicial Notice to Prove Facts

June 25, 2011

Rooted in the ancient maxim, manifesta non indigent probatione (that which is known need not be proved)  judicial notice is believed to be one of the oldest doctrines of common law.  Although archaic,  judicial notice today remains an extremely useful, yet often under-utilized, method of proof  in Texas courts.    

Not only is judicial notice an enormous time-saving device, it also carries with it strong evidentiary value, especially in the civil context, where a jury is instructed to accept as conclusive any fact judicially noticed and will hear no evidence to rebut it.  Texas Rules of Evidence 201(g), Edmund M. Morgan, Judicial Notice, 57 Harv. L. Rev. 269 at 279 (1944).  (In criminal cases, noticed facts are probative, but not conclusive.)

Judicial notice may be used to prove adjudicative facts (Rule 201), the laws of other states and foreign countries (Rules 202 & 203), as well as city ordinances and administrative agency rules and regulations (Rule 204).  In appropriate circumstances, the court is mandated to take judicial notice, and in many instances, judicial notice may occur sua sponte.  But in all circumstances, the rules require that the opposing side be given notice and an opportunity to be heard on the issue.

With regard to adjudicative facts, there are two types of judicial notice available:  notice of generally-known facts (TRE 201b[1]), and notice of facts capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned (Rule 201b[2]).  These two types of facts are quite different and distinguishable from one another.  For example, if the question at trial was whether the earth is round, as opposed to flat (as Flat Earth Society members still contend today), a court could take judicial notice under Rule 201b(1) that the earth is, in fact, round, because it is a fact generally known by persons of average intelligence and knowledge.  However, if more precision was necessary under the facts of a case, Rule 201b(2) would permit judicial notice to be taken that, in fact, the earth is NOT round, but an oblate spheroid, a fact not generally known, but nevertheless capable of accurate and ready determination by resort to reliable sources.

Even when judicial notice is employed, its scope and depth often remain untapped.  For example, few would hesitate to request judicial notice that the city of Fort Worth is located within Tarrant County.  But judicial notice can extend much further – certainly to the fact that a Starbucks is located in downtown Fort Worth on the west side of Houston Street between 3rd and 4th Streets, perhaps even to the fact that they sell beverages in three sizes:  tall, grande and venti.  Bender v. State, 739 S.W.2d 409 at 413 (Tex. App. — Houston [14th], 1987) (permitting judicial notice of the location of an MBank at a particular intersection inHouston).  The scope of judicial notice is not limited by level of detail, but by general knowledge and objective verifiability.

Another example of facts to which judicial notice should be taken are mathematical formulas, the laws of physics and other principles of natural forces, when supplied with necessary computations or information.  Drake v. Holstead, 757 S.W.2d 909 at 911 (Tex. App. — Beaumont 1988) (error found in a trial court’s refusal to take judicial notice of calculations of rates of speed, when supplied with mathematical computations to support it).  By invoking judicial notice in lieu of formal proof in these matters, an attorney can avoid at least two potentially unpleasant scenarios:  (1) putting a jury to sleep with tedious technical or scientific testimony, and, worse yet, (2) subjecting otherwise irrefutable evidence to debate, perhaps outright rejection, behind closed doors during jury deliberations. 

While judicial notice will cover matters such as the fact that there are twelve inches in a foot, it is not available for facts which are subject to reasonable dispute, such as the length of particular objects.  Brune v. Brown Forman Corp., 758 S.W.2d 827 (Tex. App. — Corpus Christi 1988).  This is a general rule, however.  Certainly the length of a football field or the dimensions of a 2005 Hummer H2 would both be ripe for judicial notice, because, again, they are capable of accurate and ready determination (or, in the case of the football field, generally known, at least within our own territorial jurisdiction). 

As a practical pointer, when judicial notice is sought on matters requiring reference to calculations, scientific treatises or the like, this is best heard in pretrial conference.  This will give the court an opportunity to consider whether these facts are the type to which judicial notice may be properly taken and/or whether necessary and adequate supporting information has been provided.  By scheduling the matter for hearing, all parties will be provided the requisite notice and an opportunity to be heard before the court takes judicial notice of the matter.  A ruling at the pretrial stage will also streamline case preparation and trial time by alleviating the burden of gathering and presenting evidence on matters which can be proved (conclusively!) through judicial notice.

— Judge Bonnie Sudderth, 352nd District Court of Tarrant County, Texas


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