Judicial Notice

1. Counsel’s Objective. To admit proof of easily ascertained or generally known facts in order to save the time and costs of more formal methods of proof.

2. Key points.

a. Goal of Rule 201: to seek notice of “almanac-type facts” to avoid the cumbersome, time-consuming proof process. For example:
(i) That 6 February 2010 was a Saturday.
(ii) That a gram is equal to about 1/29 ounce.
(iii) That the distance from Heidelberg to Kaiserslautern is about 100 kilometers.
(iv) That it was still daylight at 2000 hours on 15 July at Fort Riley, Kansas.
(v) That a post’s speed limit is 25 mph unless otherwise posted.

b. How to do it. Counsel simply ask you to “take judicial notice of the fact that….” Additionally, the rule allows you to take judicial notice sua sponte.

c. Counsel should have something to back up their request for judicial notice. Ideally, the request for judicial notice will be in pleading format (standard caption with the topic being “Request for Judicial Notice”). Counsel should attach their documentary proof to the request and provide an advance copy to opposing counsel. The request should be marked as an appellate exhibit.

d. In deciding upon whether to take judicial notice, a military judge may rely upon otherwise inadmissible evidence, such as affidavits, letters, or other hearsay.

e. The taking of judicial notice is not a substitute for the rigors of proof. The members are not bound by a military judge’s finding of judicial notice. Even if the military judge instructs the panel that she has taken judicial notice of certain facts, the panel, as the fact-finder, is as free to disregard it as it is to rely on it. Therefore, it would seem that the opponent of the judicially noticed fact should still be allowed to offer evidence to rebut it.

f. A military judge should not take judicial notice of matters that are clearly opinion or matters of inference. For example, a military judge should refuse to take judicial notice of the fact that possession of a certain amount of illegal drugs is proof of intent to distribute. Such a matter is best left for argument because it is not inherently subject to unquestioned objective proof.