Delaware Trial Handbook § 11:2. JUDICIAL NOTICE OF LAW

Delaware Rule of Evidence 202(a) provides that Delaware courts must take judicial notice of the Constitution of the United States and case law relating thereto, as well as the Constitution, common law, case law and statutes of the State of Delaware.10 A Delaware court may also take judicial notice of the common law, case law and statutes of the United States and every state, territory and jurisdiction of the United States.11 Rule 202(a) thereby overrules the common-law prohibition on courts taking judicial notice of the laws of other jurisdictions.12

A court may also take judicial notice of the private acts and resolutions of the Congress of the United States and of the General Assembly of the State of Delaware and of every other state, territory and jurisdiction of the United States.13 Courts may also take judicial notice of duly enacted ordinances and the public regulations and determinations of governmental subdivisions or agencies of the United States, of the State of Delaware and every other state, territory and jurisdiction of the United States.14

Where there is a request for judicial notice of law, reasonable notice of the request must be given to the adverse parties.14.1  The court may inform itself of such laws in such manner as it deems proper, and the court may call upon counsel to aid it in obtaining such information.14.2  The determination of such laws is made by the court and not by the jury.14.3

A party who intends to raise an issue concerning the law of a foreign country shall give notice in the pleadings or other reasonable notice.  The court, in deciding foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Delaware Rules of Evidence.  The court’s determination is treated as a ruling on a question of law.14.4

10. D.R.E. 202(a)(1).

11. D.R.E. 202(a)(1). See also Logullo v. State, I.D. No. 9501013770, slip op. at 203, Goldstein, J. (Del. Super. May 20, 1997); State v. Parretti, Cr. A. Nos. IN92-07-1338-1339, slip op. at 4, Cooch, J. (Del. Super. Apr. 17, 1995) (taking judicial notice of treaty between United States and Italy); D.R.E. 202 replaces prior statutory law which allowed courts to take judicial notice of certain laws. See former 10 Del.C. §§ 4305 (permitting as evidence printed copies of acts and resolutions of the Delaware General Assembly), 4307 (permitting as evidence printed copies of ordinances and resolutions of the City Council of Wilmington), 4312-4314 (permitting courts to take judicial notice of the law of other jurisdictions).

12. See, e.g., Silverman v. National Assets Corp., 12 A.2d 389, 391 (Del. Super. 1940); Holland v. Universal Life Co., 180 A. 328, 331 (Del. Super. 1935); Nyc Odorless Incinerator Corp. v. Felton, 162 A. 504, 507 (Dcl. Super. 1932); Mackenzie Oil Co. v. Omar Oil & Gas Co., 154 A. 883, 890 (Del. Super. 1929), aff’d, 154 A. 894 (Del. 1930); Wolf v. Keagy, 136 A. 520, 521 (Del. Super. 1927); Thomas v. Grand T. R. Co., 42 A. 987, 988 (Del. Super. 1899); Hudson v. Gibbons, 1 Del. Cas. 468, 470 (Del. 1799).

13. D.R.E. 202(d)(1)(A).

14. D.R.E. 202(d)(1). See also State ex rel. Comm’r of the Dept. of Corrections, C.A. No. 90C-11-245, slip op. at 5, Del Pesco, J. (Del. Super. Nov. 6, 1992) (taking judicial notice of the order adopting the Rules and Regulations of the Council of Real Estate Appraisers issued as a result of public hearings held before the Delaware Council of Real Estate Appraisers). This power is consistent with the pre-existing common-law practice of taking judicial notice of administrative regulations and determinations. See, e.g., Betts v. Zeller, 263 A.2d 290, 294 (Del. 1970) (judicial notice taken of United States Department of Labor studies and government poverty index); Schott v. Climax Molybdenum Co., 154 A.2d 221, 225 (Del. Ch. 1959) (judicial notice of stock exchange regulations); Lutzcovich v. Nedwick, 134 A.2d 268, 271 (Del. Ch. 1957) (judicial notice of Veteran’s Administration regulations).

14.1. D.R.E. 202(a)(3).

14.2. D.R.E. 202(b).

14.3. D.R.E. 202(c).

14.4. D.R.E. 202(e).

© 2010  David L. Finger