Delaware Trial Handbook § 11:1. PROOF IS EXCUSED IF A FACT IS JUDICIALLY NOTICED

Judicial notice by a court of a fact relieves a party of the necessity of producing evidence to prove that fact.1 The underlying premise of judicial notice is that “[j]udges are not necessarily ignorant in court of what everybody else, and they themselves out of court, are familiar with; and there is no reason why they should pretend to be more ignorant or unobserving than the rest of mankind.”2

Delaware Rule of Evidence 201 permits courts to take judicial notice of certain adjudicative facts.3 For a fact to be subject to judicial notice it “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.”4  The doctrine of judicial notice is applied with caution.  If there is a question as to either the fact to be noticed or whether it is a matter of common knowledge, the trial court should require evidence.  Judicial notice is appropriate only where the fact is of such notoriety that it is proper to assume its existence without requiring proof.  If there is any possibility of a dispute, the fact may not be judicially noticed.4.1

A court is obligated to take judicial notice if requested by a party and supplied with the necessary information demonstrating that the fact is one properly subject to judicial notice.5 In the absence of any request, a court has discretion as to whether it will take judicial notice of a fact.6 In either event, the party against whom judicial notice will operate is entitled to notice and an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed and to rebut or explain the matter ascertained.7 In the absence of prior notification, a party may request reconsideration of the propriety of taking judicial notice.8

Upon request, a court shall instruct the jury to accept as conclusive any fact judicially noticed.9

The fact that judicial notice is taken of a documents does not necessarily mean that the representations in that document is established as a fact.  It depends on the nature of the document.  Statements in official government and scientific reports, for example, may be accepted for their truth.  On the other hand, statements in briefs and pleadings in documents filed with a court in another case, or a proxy statement or newspaper article, may be accepted for the limited purpose of establishing that they state their contents, and not to establish the truth of their contents.9.1

1. Barks v. Herzberg, 206 A.2d 507, 509 (Del. 1965); Bigger v. Unemployment Compensation Comm., 46 A.2d 137, 141 (Del. Super. 1946), aff’d, 53 A.2d 761 (Del. 1947); Affiliated Enterprises, Inc. v. Waller, 5 A.2d 257, 261 (Del. Super. 1939).

2. Affiliated Enterprises, Inc. v. Waller, 5 A.2d 257, 261 (Del. Super. 1939).

3. D.R.E. 201(a). See also Juras v. Board of Pension Trustees, C.A. No. 92A-03-2, slip op. at 2-3, Herlihy, J. (Del. Super. Oct. 15, 1992), aff’d mem., 625 A.2d 279 (Del. 1993). “Adjudicative facts” include facts contained in court opinions. Lerman v. Diagnostic Data, Inc., C.A. No. 6233, slip op. at 5, Brown, V.C. (Del. Ch. Aug. 11, 1980).  This rule does not permit judicial notice of legislative fact. D.R.E. 201, comment.  Legislative facts are facts necessary to interpret the scope or meaning of the law, and which do not directly relate to matters in dispute between the parties before the Court. F.R.E. 202(a).

4. D.R.E. 201(b). See also Bigger v. Unemployment Compensation Comm., 46 A.2d 137, 141 (Del. Super. 1946), aff’d, 53 A.2d 761 (Del. 1947) (“judicial notice depends on common knowledge of fact…”).

4.1. Fawcett v. State, 697 A.2d 385, 388 (Del. 1997).

5. D.R.E. 201(d).

6. D.R.E. 201(c); Montgomery Cellular Holding Co., Inc. v. Dobler, 880 A.2d 206, 226 (Del. 2005).

7. D.R.E. 201(e); Tribbitt v. Tribbitt, 963 A.2d 1128, 1130-31 (Del. 2008); Barks v. Herzberg, 206 A.2d 507, 509 (Del. 1965).

8. D.R.E. 201(e).

9. D.R.E. 201(g).

9.1. In re Rural Metro Corporation Shareholders Litig., C.A. No. 6350-VCL, slip op. at 17-20, Laster, V.C. (Dec. 17, 2013)

© 2014  David L. Finger