COMMENTS

This rule is designed to address two basic considerations. The first consideration is the misleading impression often conveyed by taking matters out of context. The second consideration involves the problems associated with repairing the damage created by the taking of a matter out of context, if the repair work is delayed for a later point in the trial.

ILLUSTRATION

Assume in a paternity action, wherein X is seeking to offer into evidence a copy of the child's birth certificate and is further seeking to limit the offer of proof to the face of the certificate which reflected the fact that the child was born during a time period, which was compatible with Y being responsible. It would be proper to admit the whole document into evidence, wherein it appears that a person other than Y was named as father of the child.

If any part of a document is used to impeach a witness or support his testimony, and other parts of the same document will explain away or weaken the support or impeaching effect, the whole document may be received into evidence. This rule is an expression of the rule of completeness and merely restates that rule of basic fairness. This rule is primarily limited in scope to writings and recorded statements. It has no application to oral unrecorded conversation.

ARTICLE II. JUDICIAL NOTICE

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 proprietary 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. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.

ELEMENTS

A. Applies only to adjudicative facts.

B. Judicially noted facts are those which:

1. Are not subject to reasonable dispute because they are:

C.

b. Capable of accurate and ready determination by resort to

sources whose accuracy is not questioned.

Court may take judicial notice whether requested or not.

D.

E.

Court must take judicial notice if:

1. Requested by a party, and

2. Court is supplied with necessary information.

Party is entitled to notice and opportunity to be heard.

COMMENT

1. In civil cases, judicially noticed facts must be accepted as

2.

conclusive.

In criminal cases, the jury may, but is not required to,
accept the facts as conclusive.

Adjudicative facts are facts in a particular case which are relevant to the issue or issues in the case. This rule does not apply to legislative facts or the mental processes or reasoning behind a law or statute.

ILLUSTRATION

Assume X wants the Court to take judicial notice of a state statute which is applicable to the case and is also relevant to an issue before the Court. In that situation, the Court may take judicial notice of the state statute because it is a matter that is not reasonably open to dispute. On

the other hand, if Y requests the Court to take judicial notice of State Senator Z's statements in the legislature, during the debates on the Statute as to its purpose, the Court should not entertain or favor that request. While the Court may take judicial notice of the holding in a particular case it should not notice the dicta which serve to explain it. The holding of the case is not the result of the marriage of indisputable facts, but rather the reconciliation of disputed facts and social policy. Accordingly, the end result, the holding, is subject to judicial notice and not the process by which it was arrived at.

Adjudicative facts are generally established by testimony and the introduction of evidence. Where the facts are outside the realm of reasonable controversy, this process is dispensed with and the Court may notice the

facts.

On the other hand, legislative facts are quite different. In formulating legislative facts, the Court takes into account the facts they believe to be true, although disputed by a party, as opposed to facts which are clearly established and are indisputable. Policy questions as well as the thought process interplay with the disputed facts and a symbiosis occurs.

201(b)

In our adversary system, we harbor the view that a fair trial requires the Court to allow a party against whom adverse evidence has been introduced to confront that evidence with rebuttal evidence, cross-examination or argument. If we are called upon to dispense with these tools of confrontation and allow evidence to enter the record unchallenged, the evidence admitted cannot reasonably be the subject of dispute.

The requirement that the matter be "generally known within the territorial jurisdiction" of the trial court merely acknowledges the fact that although a matter may not be reasonably subject to dispute, the court must have a way to ascertain the existence of that fact.

ILLUSTRATION

Assume X desires the Court in Nebraska to take Judicial Notice that Z corporation is incorporated under the laws of Texas. That fact may not be disputable; however, it may not generally be known within the judicial District in which the Court is sitting. Accordingly, some evidence of Z's existence and incorporation must be placed before the Court in the form of evidence.

The second gauge for determining whether the Court may take judicial notice of a fact is whether the fact is capable of accurate and ready determination by resorting to a source whose accuracy cannot reasonably be questioned. Sometimes a source may be utilized as a basis for judicial

notice for one fact and not another.

ILLUSTRATION

Assume that X wants the Court to Judicially Notice a scientific principle such as an object falling at a rate of 32 feet per second. In such a situation, the court may resort to an encyclopedia for assistance. On the other hand, where X wants the Court to find that a certain chemical used in food processing has been associated with cancer in humans, the same encyclopedia, while reciting the research and theories on the subject, would not provide the means by which the Court may take notice of the desired fact. Accordingly, X would have to offer proof to support his theory of the case. The process of taking notice of a fact does not suggest that the Court at the moment actually knows or accepts the matter submitted; it merely relieves the submitting party of the burden of offering proof of a matter the Court can easily ascertain.

Sometimes the Court is asked to take notice of a fact which all men of ordinary intelligence accept to be true; however, the Court under the circumstances, is obligated to put the party to his proof.