Courts will take judicial notice of the local practice and procedure of the courts and the legal community.21  For example, it is deemed to be common knowledge that because of an inevitable excuse from service, sometimes granted at the last moment, the number of individuals appearing for jury duty is frequently less than that summoned.22 The Superior Court has also taken judicial notice of the procedure for dismissing for cause members of a jury pool who had been represented in the past by counsel for either of the litigants in the present litigation.23 The Supreme Court has taken judicial notice of the practice in the Superior Court of considering the failure to exercise a peremptory challenge at the proper time a waiver of that particular challenge and a waiver of the right to exercise any remaining challenges against jurors drawn and seated in the jury box at the time.24 It is also a fact subject to judicial notice that the jury selection process in capital cases has traditionally been open to the public.25 The practice of those holding the office of Attorney General has also been the subject of judicial notice.26

The courts take judicial notice that Justice of the Peace Courts are open 24 hours a day,27 and that the long standing and well established practice in the Justice of the Peace Court is that arrest warrants are not stamped with that Court’s seal unless and until the warrant is approved and signed by a judge. 27.1 The courts also take judicial notice that the Court of Common Pleas does not appoint counsel for indigent persons,28 that a record of judicial proceedings must be prepared by a stenographer29 and that public defenders are often assigned cases at the last minute.30

Delaware courts have also taken judicial notice that the long standing and well established practice of the Superior Court is that all grand jury indictments are returned before a judge in open court, and that 12 of the 15 members of the grand jury in New Castle County constitute a quorum for the transaction of business, and if fewer than this number are present, even for a moment, the proceedings must stop.30.1

The manner of taking appeals and conducting appellate hearings from decisions of election registration officers is a matter of common knowledge.31 A court can also take judicial notice that parties frequently file motions in the Court of Chancery seeking to have a person or entity be adjudged in contempt of court.32 Of course, courts will take judicial notice that the dockets are overcrowded.33

Courts have also been willing to take judicial notice of out-of-court legal practice, such as the procedures used in searching titles to land34 and the fact that plaintiffs in personal injury practice routinely provide authorization for the release of medical information upon the request of defense counsel.35

21. Russell v. Wilmington, 162 A. 71, 72 (Del. Super. 1932).

22. Quillen v. State, 112 A.2d 848, 851 (Del. 1955).

23. Wilmington v. Parcel of Land Seibert Assoc., C.A. No. 89C-OC-171, slip op. at 7, Poppiti, J. (Del. Super. Jan. 8, 1992).

24. Le Gro v. Moore, 138 A.2d 644, 646 (Del. 1958). This practice is embodied in Superior Court Criminal Rule 24(3)(B).

25. State v. Lynch, Cr. A. No. 1K88-02-0090-0097, slip op. at 2, Ridgely, J. (Del. Super. Sept. 26, 1989), on recons., Cr. A. No. IK-88-02-0090-97, Ridgely, J. (Del. Super. Oct. 3, 1989).

26. Collins v. State, No. 75, 1985, slip op. at 5, Christie, J. (Del. Aug. 25, 1985) (ORDER), disposition reported at 505 A.2d 452 (Del. 1985) (TABLE).

27. Shoemaker v. State, 375 A.2d 431, 443 (Del. 1977); State v. Casto, 375 A.2d 444, 449 (Del. 1977).

27.1. State v. Flonnory, Cr. A. Nos. IN00-10-1759 & IN00-01-1276. slip op. at 3-4, Jurden, J. (Del. Super. Oct. 29, 2003).

28. State v. Moore, 187 A.2d 807, 822 (Del. Super. 1963).

29. Lofland v. Cahall, 115 A. 458, 460 (Del. 1921).

30. Garrett v. State, 320 A.2d 745 (Del. 1974).

30.1. State v. Claudio, Cr. A. Nos. IN87-03-0073-0078, IN87-03-0098-0101, slip op. at 3, Jurden, J. (Del. Super. Dec. 17, 2001), aff’d mem., 794 A.2d 600 (Del. 2002).

31. Appeal of Brown, 49 A.2d 618, 623 (Del. Super. 1946).

32. Wilmington v. General Teamsters Local Union, 321 A.2d 123, 125 n.3 (Del. 1974).

33. In the Matter of Hamilton, No. 307, 1988, slip. op. at 2-3, Horsey, J. (Del. Sept. 13, 1980) (ORDER), reported at 548 A.2d 778 (Del. 1988) (TABLE).

34. Lawyers Title Ins. Corp. v. Wolhar & Gill, P.A., 575 A.2d 1148, 1152 (Del. 1990).

35. Green v. Eloodsworth, 501 A.2d 1257, 1260 (Del. Super. 1985).

© 2010  David L. Finger