What Is Judicial Notice? The Exact Fact a Court Accepts

What is judicial notice?

Judicial notice is the way a court accepts a fact as established without requiring a party to prove it with testimony or exhibits. In federal courts, Federal Rule of Evidence 201 allows it only for an adjudicative fact "not subject to reasonable dispute": one that is generally known locally, or readily checked against reliable sources. The narrow question in any passage is which exact fact was accepted. This is general legal education, not legal advice; rules vary by jurisdiction, and a specific matter belongs with a licensed attorney.

What is an adjudicative fact, and what is left out?

Rule 201(a) opens with its own limit: "This rule governs judicial notice of an adjudicative fact only, not a legislative fact."

The original advisory committee note to Rule 201 explains the difference. Adjudicative facts are the facts of the particular case, the kind that answer "who did what, where, when, how, and with what motive or intent." A legislative fact is something else. In the note's words, legislative facts "are those which have relevance to legal reasoning and the lawmaking process," such as background assumptions a judge relies on when deciding what a legal rule should be. Because Rule 201 does not govern legislative facts, a passage describing that kind of background reasoning is not an application of this rule, even if it uses the word "notice."

State courts have their own evidence codes, and their wording and categories can differ from the federal rule. Everything below describes the federal framework.

Which facts qualify for judicial notice under Rule 201?

Rule 201(b) states that a court "may judicially notice a fact that is not subject to reasonable dispute because it:"

1. "is generally known within the trial court's territorial jurisdiction; or"
2. "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned."

The first route covers facts that people in the area where the trial court sits simply know. The second covers facts that can be checked quickly against a source nobody could reasonably doubt. Either way, the threshold is indisputability. The advisory committee note puts it directly: "A high degree of indisputability is the essential prerequisite." A fact that is merely likely, or that reasonable people could read differently, does not meet it.

Who starts the process, and when can it happen?

Under Rule 201(c), the court "may take judicial notice on its own," and it "must take judicial notice if a party requests it and the court is supplied with the necessary information." So a passage may show a judge noticing a fact unprompted, or responding to a party's request.

Rule 201(d) adds that the court "may take judicial notice at any stage of the proceeding." Judicial notice therefore appears in early written rulings as well as at trial. It often comes up in rulings on a motion to dismiss. As the Ninth Circuit's opinion discussed below explains, federal district courts generally may not consider material outside the pleadings at that stage, and judicial notice is one of two recognised exceptions.

What exact fact is the court accepting?

This is the question that matters most when reading a ruling, and it is the one most easily blurred. A court can notice that a document exists, or when it was filed, without accepting that everything written in it is true.

The US Court of Appeals for the Ninth Circuit addressed this in Khoja v. Orexigen Therapeutics (2018), a securities case. The court held that a court may take judicial notice of matters of public record, but "cannot take judicial notice of disputed facts contained in such public records." It also wrote: "Just because the document itself is susceptible to judicial notice does not mean that every assertion of fact within that document is judicially noticeable for its truth." The opinion adds that a court must consider and identify which fact or facts it is noticing from a document.

The opinion applied that test to three exhibits:

• An investor conference-call transcript. Noticing that a call took place on September 11, 2014 would, the court said, "in theory, be permissible." Noticing what the call disclosed was not, because the speaker's statements could reasonably be read in more than one way.
• A regulatory agency report. The report could support the fact that the agency knew certain interim study results by the report's date. It could not establish who had told the agency, and the court held that noticing the report for what it revealed about the defendant's conduct was an abuse of discretion.
• An international patent application. The district court appeared to notice only the filing date. The Ninth Circuit held that proper, because the date could be accurately and readily determined from a document published by a government agency.

Khoja is binding only within the Ninth Circuit, and other courts phrase the point in their own ways. The underlying distinction, between the noticed fact and what someone wants to draw from it, follows from the text of Rule 201(b) itself.

Why is a noticed fact different from a conclusion drawn from it?

A noticed fact is a narrow starting point. What a party argues from that fact is a separate step, and it does not inherit the fact's indisputability.

Suppose a court notices the date on which a public filing was made. That date is settled. Whether the filing proves that someone knew something, intended something, or misled anyone is an inference: a conclusion reasoned from the fact, which reasonable people may still contest. The same split runs through evidence law generally. Whether an item can be considered at all differs from how much weight it carries, and a fact that proves something only through reasoning works much like circumstantial evidence.

When reading a judicial-notice passage, the useful habit is to separate the sentence that states the noticed fact from the sentences that use it. The first sentence is often short and specific: a date, a filing, the existence of a record. The later sentences carry the argument.

Does judicial notice work the same way in civil and criminal cases?

No. Rule 201(f) treats the jury differently in each:

• "In a civil case, the court must instruct the jury to accept the noticed fact as conclusive."
• "In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive."

The House Judiciary Committee's report, reproduced in the notes to Rule 201, explains the criminal-case rule: the committee viewed a mandatory instruction as "contrary to the spirit of the Sixth Amendment right to a jury trial." In a criminal trial, then, the jury keeps the power to decline a noticed fact. That fits the wider structure of criminal procedure, where the burden and standard of proof are set higher than in civil cases.

Can a party respond when a court takes judicial notice?

Rule 201(e) gives parties an opportunity to be heard. "On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed." And if the court has already taken notice before notifying a party, "the party, on request, is still entitled to be heard."

Two separate things can be contested under that rule: whether notice is proper at all, and the nature of the fact, meaning exactly what is being accepted. How and when that happens in a given court depends on that court's procedures and on the stage of the case, which is a question for a licensed attorney rather than a general explainer.

What questions help when reading a judicial-notice passage?

A short checklist keeps the reading precise:

• What is the exact fact? Look for the narrowest statement: a date, an event, the existence of a record.
• Which route does it rely on? General local knowledge under 201(b)(1), or a reliable source under 201(b)(2).
• Is the court accepting the document's existence, or the truth of its contents? These are different, as Khoja shows.
• What conclusions are drawn afterward? Those are reasoning, not part of the noticed fact.
• Is the case civil or criminal? That decides how the jury is told to treat the fact.

Sources

• Federal Rule of Evidence 201, with advisory committee and congressional notes (Legal Information Institute, Cornell Law School)
• Khoja v. Orexigen Therapeutics, Inc., No. 16-56069 (9th Cir. Aug. 13, 2018), opinion