I. General Provisions
II. Judicial Notice
IV. Relevancy and Its Limits
VII. Opinions and Expert Testimony
X. Contents of Writings, Recordings,
|REVISED ARTICLE II RULES WITH COMMENTARY
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
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
The Project concluded that establishing a rule for each
type of fact to be judicially noticed would properly force judges to address