RULE 201. JUDICIAL NOTICE OF ADJUDICATIVE FACTS
(a) Scope of Rule. This rule governs only judicial notice of adjudicative facts.
(b) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
(c) When Discretionary. A court may take judicial notice, whether requested or not.
(d) When Mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.
(e) Opportunity to Be Heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
(f) Time of Taking Notice. Judicial notice may be taken at any stage of the proceeding.
(g) Instructing Jury. The court shall instruct the jury to accept as conclusive any fact judicially noticed.
Rule 201 is the only rule dealing with the subject of judicial notice and, by the terms of subdivision (a) is limited in application to the judicial notice of adjudicative facts, i.e., the facts of the particular case before the courts, facts that are normally the subject of proof by formal introduction of evidence. Judicial notice of legislative facts, facts that aid the court in the interpretation and application of law and policy, is not governed by this or any other rule of evidence. This represents a change in North Dakota law, for under Chapter 31-10, NDCC, both adjudicative and legislative facts were subject to the constraints of the doctrine of judicial notice.These rules contemplate that notice of legislative facts must be freely taken, without the requirement of first showing that the fact is one of common knowledge or capable of easy and accurate verification. To do otherwise would stifle the growth and development of decisional law.
Subdivision (b) provides that the kinds of adjudicative facts which may be judicially noticed must be either (1) generally known or (2) capable of accurate and ready determination. The first basis for taking judicial notice, i.e., that a fact is one of common knowledge, is perhaps more familiar, but the second is clearly recognized by practice if not always by name. See, e.g., Boehm v. Burleigh County, 130 N.W.2d 170 (N.D. 1964). See also McCormick on Evidence 330. If the function of judicial notice is to remove from the stricture of formal proof facts that are clearly beyond dispute, then either basis for the exercise of judicial notice is valid.
Subdivisions (c) and (d) provide that a court may take judicial notice on its own motion and must take judicial notice of a fact when requested by a party to do so, provided, of course, that the basic requirements for taking judicial notice are met.
It should be noted that although the taking of judicial notice, under subdivision (c), is discretionary if not requested by a party, the scope of appellate review of a trial court's decision is not limited to determining whether the trial court's decision was "clearly erroneous," the usual standard applied in reviewing discretionary decisions. As stated in 1 Weinstein's Evidence 201(04) at 201-33-34:
"The grant of discretionary authority does not mean, as it does in other situations, that the trial judge's determination is virtually insulated from appellate review. An appellate court is in as good a position as the trial court to ascertain the degree of probability of a judicially noticeable fact.There is no need for the appellate court to defer to the trial judge's feel for the case. Accordingly, subdivision (b) must be read in conjunction with subdivision (f) authorizing judicial notice "at any stage of the proceedings.' If the trial judge failed to notice a fact which the appellate court feels was a proper subject for judicial notice, the appellate court may notice the fact despite the grant of discretionary authority. This does not mean, however, that "judicial notice * * * should be used as a device to correct on appeal an almost complete failure to present adequate evidence to the trial court.'
"Appellate courts have adequate power in the reverse situation where they disagree with the trial judge's recognition of a fact. The reviewing court may reverse if it finds that the fact was neither "generally known' nor "verifiable.' "
Subdivision (e) grants to parties the basic right to be heard concerning the taking of judicial notice. Whenever judicial notice is to be taken pursuant to a party's request, all parties will be notified of that fact and may exercise their right to be heard on the issue. Whenever a judge contemplates taking judicial notice of a fact on his own motion, he should clearly inform the parties of his intention and provide an opportunity for hearing of the issue. If the court fails to give prior notification, it must provide an opportunity for objection after judicial notice has been taken.
The object of this subdivision is to achieve procedural fairness. No special form of notice is required nor is there a need for a formal hearing. If the parties, in fact, are given notice and an opportunity to be heard, the requirements of this subdivision will have been satisfied.
Under subdivision (f), judicial notice may be taken at any stage of a proceeding. This is in accord with North Dakota law and practice under which the Supreme Court has traditionally taken judicial notice of certain facts. See, e.g., Wyldes v. Patterson, 31 N.D. 282, 153 N.W. 630 (1915).
It should be noted that the requirements of notice and an opportunity to be heard contained in subdivision (e) apply to appellate courts contemplating taking original judicial notice. A hearing of the issues may be afforded during oral argument or, if oral argument has been completed, supplemental briefs may be requested.
There has been a continuing debate as to whether parties should be allowed to controvert a judicially noticed fact through the introduction of adverse evidence. See 1 Weinstein's Evidence 201(07). The arguments advanced in favor of admitting contrary evidence are made by those who would treat judicial notice as a method of tentatively establishing facts that have not been challenged, but are not necessarily beyond dispute. Moreover, the proponents of admitting contrary evidence would include within the realm of judicial notice legislative facts, to which this rule does not apply. See, e.g., Thayer, A Preliminary Treatise on Evidence, 308 (1898).
Under this rule, a judicially noticed fact may not be controverted and the court is to instruct the jury that they shall accept those facts as conclusive.
The position that judicially noticed facts may not be controverted is taken under this rule primarily because of the narrow scope of application of the rule. The rule applies only to adjudicative facts that are not subject to reasonable dispute. Thus, the determination that a fact is beyond dispute is made before the fact is judicially noticed. It would serve no useful purpose to later admit evidence contrary to the noticed fact.
SOURCES: Minutes of Joint Procedure Committee: April 8, 1976, pages 17, 18; October 1, 1975, page 3. Rule 201, Federal Rules of Evidence; Rule 201(g), Uniform Rules of Evidence (1974);Rule 201, SBAND proposal.
SUPERSEDED:31-10-01, 31-10-02, NDCC.
CONSIDERED:28-29-06, 31-10-03, 31-10-04, 31-10-05, 32-25-04, 39-08-01, 40-01-03, 40-18-19, NDCC.
CONSIDERED: Rule 44.1, NDRCivP;Rule 26.1, NDRCrimP.