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Table of Contents

Article I. General Provisions
Article II. Judicial Notice
Rule 201
Rule 202
Rule 203
Rule 204
Article III. Presumptions
Article IV. Relevancy and Its Limits
Article V. Privileges
Article VI. Witnesses
Article VII. Opinions and Expert Testimony
Article VIII. Hearsay
Article X. Contents of Writings, Recordings, 

and Photographs


Revised Rule 201 addresses existing problems within Current Rule 201.  Revised Rules 202 through 204 address issues not currently dealt with in the Federal Rules of Evidence.  Revised Rule 202 covers judicial notice of legislative facts.  Revised Rule 203 addresses judicial notice of law (both domestic and foreign).  Revised Rule 204 sets forth how law should be proved when judicial notice is not taken.  
Because of the long history and substantial case law interpreting the rule of judicial notice governing adjudicative facts, only a few significant changes have been suggested for Current Rule 201.   Aside from certain changes in the notice provision and the requirement that Judicial Notice of Adjudicative Facts be binding in criminal cases, the changes to Revised Rule 201 are largely for clarity.      
The most significant changes to Article II involve the addition of Revised Rules 202, 203, and 204.  Revised Rule 202 is the first attempt to establish some guidance for courts dealing with judicial notice of legislative facts.  Current Rule 201 deals exclusively with Judicial Notice of Adjudicative Facts.  The drafters of Current Rule 201 did not address judicial notice of legisla-tive facts because that was perceived to be outside the traditional bounds of evidentiary proce-dure.   Current Rule 201 does not address Judicial Notice of Law because the recognition of law has been perceived as a procedural, rather than an evidentiary, matter.    The Revised Rules  include judicial notice of both legislative facts and law, as with the distinction between adjudi-cative and legislative facts, a delineation between evidentiary and procedural matters is often unclear.  Although legislative facts and law are not clearly evidentiary in nature, their treatment with adjudicative facts facilitates the ability of the courts to consider the issues involved with each.  Judge Weinstein recognized the closely interrelated nature of the different branches of judicial notice by observing:   

    The Advisory Committee, recognizing that the doctrine transcends the boundaries of the Committee's concern, drafted Rule 201 so that its coverage would be limited to that aspect of judicial notice which most clearly lies within the province of the law of evi-dence. . . .  In the next [sections], however, the doctrine of judicial notice in its larger sense is discussed in some detail because the rationale, scope and limitations of Rule 201 stand out more clearly when viewed against this wider perspective.  

 Judicial notice of facts can be broken down into three categories:  adjudicative,  legisla-tive, and background.  Although the distinction was perhaps first recognized by Professor Thayer, it was not until 1942 that Professor Davis coined the terms “legislative” and “adjudi-cative” facts:  

When a court or an agency finds facts concerning the immediate parties -- who did what, where, when, how, and with what motive or intent -- the court or agency is performing an adjudicative function, and the facts so determined are convenient-ly called adjudicative facts.  When a court or an agency develops law or policy, it is acting legislatively; the courts have created the common law through judicial legislation, and the facts which inform the tribunal's legislative judgement are call legislative facts.  

Background facts are more difficult to distinguish because they are both adjudicative and legislative:  

    Courts notice without proof all, whether fact or law, that is necessarily or justly imputed to them, by way of general outfit for the proper discharge of the judicial function. . . .  Among such things are the ordinary meaning, construction, and use of vernacular lan-guage; the ordinary rules and methods of human thinking and reasoning; the ordinary data of human experience, and judicial experience in the particular region; the ordinary habits of men.    

 Clearly, the courts could not function if proof was needed on the meaning of every word uttered by a witness that bore upon the outcome of a case.   In a negligence case involving a motor vehicle, there is no need to offer proof as to the meaning of the word "car" or its dangerous nature if improperly handled, because both judge and jury assign meaning from their daily exposure as both drivers and pedestrians.  Given the nature of such facts, it would be impossible to propose a rule that would govern them.  
At the other extreme, adjudicative facts deal with the dispositive facts of the case which are in controversy between the parties; as Professor Davis explained:  "who did what, where, when, how, and with what motive or intent."   Courts are extremely hesitant to take judicial notice of such facts because they bear directly on the rights of the parties.   This is based on the belief that in an adversarial legal system it is best to allow the parties to establish the facts that are essential to their cases: 

    The reason we require a determination on the record is that we think fair procedure in resolving disputes of adjudicative facts calls for giving each party a chance to meet in the appropriate fashion the facts that come to the tribunal's attention, and the appropriate fashion for meeting disputed adjudicative facts includes rebuttal evidence, cross-examination, usually confrontation, and argument (either written or oral or both).  The key to a fair trial is opportunity to use the appropriate weapons (rebuttal evidence, cross-examination, and argument) to meet adverse materials that come to the tribunal's attention.  

Because parties are attempting to reconstruct a particular course of events that occurred in the past, a court will only take judicial notice of operative facts when an adjudicative fact is beyond dispute. 
Legislative facts, as has previously been observed, deal with the interpretation and development of the law.  These facts do not have direct bearing on the course of events which occurred between the parties, but rather, deal more broadly with the social implication of a particular law.  Judges, without explicitly recognizing what they are doing, will take judicial notice of these facts.   Given the fact that legislative facts do not deal with a particular course of events which the parties are attempting to reconstruct, but rather, more loosely deal with social norms and the interpretation and intent of the legislature in passing a law, courts do not require that the facts which they notice be beyond dispute.  In fact, as Professor Davis has stated: 

     My opinion is that judge-made law would stop growing if judges, in thinking about questions of law and policy, were forbidden to take into account the facts they be-lieve, as distinguished from facts which are "clearly . . . within the domain of the indis-putable."  Facts most needed in thinking about difficult problems of law and policy have a way of being outside the domain of the clearly indisputable.  Indeed, necessary facts are often inseparably mixed with judgment, and whole bundles of such mixtures are judicial-ly noticed, even though the mixtures are highly controversial.  

The distinction between legislative facts and adjudicative facts, however, is often not clear.   Because Current Rule 201 lacks a definition of legislative facts and provides no framework within which courts were forced to analyze the distinction between adjudicative and legis-lative facts, courts side-step Current Rule 201, even where a fact is clearly “adjudicative” in nature, by simply classifying that fact as legislative.  For example, in United States v. Harris,  the court took judicial notice of the fact that venue in the Southern District of Ohio was estab-lished by proof that the crime occurred in Hamilton County, Ohio.   The court never mentioned Current Rule 201 or the requirement that in a criminal trial the jury be given a permissive in-struc-tion on judicially noticed facts.  Venue, however, clearly falls within the realm of adjudi-ca-tive facts, i.e., proof of venue establishes an element of the crime, location; in Professor Davis' terms, venue answers the question "where" the event occurred:   

    Inclusion of legislative facts in [the rules of evidence] would effectuate full codification of the basic concept of judicial notice.  Existing practice indicates that decisions on judicial notice involve three variables:  the extent to which the facts noticed are ad-judicative or legislative, the extent to which the facts noticed are disputable or indisput-able, and the extent to which facts noticed are critical or peripheral to the controversy. . . . "A rule that leaves out of account one of the essential variables that [is] intrinsic to the problem and that the courts in fact use cannot be a sound solution of the basic problem of judicial notice."  

The Project concluded that establishing a rule for each type of fact to be judicially noticed would properly force judges to address these issues.