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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. Judicial Notice of Adjudicative Facts Commentary 201(e). 

Revised Rule 201(e) is intended to impress upon the court the importance of affording a party reasonable notice before the court takes judicial notice.  Current Rule 201(e)  does not require advance notice, though it provides for an opportunity to be heard after the fact.  The Project concluded that an opportunity to be heard after the court has taken judicial notice is often ineffectual.  Only by providing the parties with the opportunity to address the issues before the court has concluded that a fact is subject to judicial notice under Revised Rule 201 will the court be able to give the issues full and fair consideration.  The need for an effective opportunity to be heard on the propriety of taking judicial notice is especially important in light of the fact that Revised Rule 201(h) eliminates the permissive jury instruction in criminal cases. 
Professor Morgan's observations are particularly relevant in this context: 

    In reading data garnered from text books and encyclopedias, and statistics taken from specified sources, set out in an opinion of a court of last resort, one often has a feeling that they might have been contradicted or modified or ex-plained by diligent counsel aware that the court intended to use them.  Conse-quently, protection to litigants should be provided (a) by furnishing them full opportunity to be heard in time to make their contentions effective and to make a record which will assure review by appellate tribunals, and (b) by using judicial review only where the matter clearly falls within the domain of the indisputable. 
Subsection (e) is intended to apply both when the court takes judicial notice sua sponte and when the court is requested to take judicial notice by a party.  Usually a party's motion will be sufficient notice to allow the opposing party to prepare to address the propriety of taking judicial notice of the fact.  When the court takes judicial notice on its own motion, however, it should provide reasonable notice beforehand. 
The Project considered making prior notification of the court's intent to take judicial notice mandatory in all situations, but, ultimately, rejected this suggestion.  The Project concluded that mandatory notification before the court takes judicial notice would cause an undue administrative burden in some cases where the issue to be noticed is of relatively minor importance.  Nonetheless, courts are urged to afford the parties with prior notification of its in-tent to take judicial notice whenever practicable. 
 The Project considered a proposal which called for a five-day period of notification in order to give the parties adequate time to prepare to address the issues.  The five-day period was based on the minimum time allocated by the Federal Rules of Criminal and Civil Procedure for giving notice on motions.   The five-day period was intended as a guideline to be controlling absent special circumstances.  The Project decided that because the time needed to prepare a response would vary so widely, an established time period was impracticable.  The court may provide minimal time before taking judicial notice of a fact if interests of justice indicate that the parties can address the appropriateness of taking judicial notice with little or no prior preparation.  Where the parties need an opportunity to prepare or gather information to adequately address the propriety and tenor of the fact subject to judicial notice, however, the court may either refuse to take judicial notice or continue the proceedings until the parties can adequately address the motion for judicial notice. 
Rule 201(e) allows the parties to address the propriety of taking judicial notice.  Propriety is intended to include the issue of whether the fact under consideration is beyond reasonable dispute.  Moreover, the parties are also allowed to address the scope of the facts to be noticed.