Judicial Notice

In general

• Judicial notice is a branch of the law of evidence. It is merely a short cut, a doing away with the formal necessity of evidence.

Freson v. Combs, 433 N.E.2d 55, 60 (Ind. Ct. App. 1982), reh’g denied(citing 31 C.J.S. Evidence s 50(1))

• Judicial notice relieves the party having the burden of establishing a particular fact from submitting formal proof of that fact.

Mullins v. State, 646 N.E.2d 40, 43 (Ind. 1995)(citing Hutchinson v. State, 477 N.E.2d 850, 854 (Ind. 1985))

Baran v. State, 639 N.E.2d 642, 647 (Ind. 1994)(citing Hutchinson v. State, 477 N.E.2d 850, 854 (Ind. 1985))

See Sanders v. State, 782 N.E.2d 1036, 1038 (Ind. Ct. App. 2003)(citing Hutchinson v. State, 477 N.E.2d 850, 854 (Ind. 1985))(“Judicial notice excuses the party having the burden of establishing a fact from the necessity of producing formal proof.”)

• Judicial notice is merely the cognizance of certain facts which jurors and judges may properly take into account and act upon without proof.

Freson v. Combs, 433 N.E.2d 55, 60 (Ind. Ct. App. 1982), reh’g denied

See Carter v. Neeley’s Estate, 2 N.E.2d 221, 222 (Ind. Ct. App. 1936)(en banc)(“In general language judicial notice or knowledge means that the court will bring to its aid, without proof or evidence of the facts, its knowledge of the existence or nonexistence of such facts.”)

Matters that may be judicially noticed: In general

• A trial court may take judicial notice of law, a fact, or of the contents of the pleadings and filings in the case before it.

Arms v. Arms, 803 N.E.2d 1201, 1209 (Ind. Ct. App. 2004)(citing Sanders v. State, 782 N.E.2d 1036, 1038 (Ind. Ct. App. 2003))

• More generally, a trial court may take judicial notice of proceedings that have taken place in that court, and in that cause of action.

Arms v. Arms, 803 N.E.2d 1201, 1209 (Ind. Ct. App. 2004)(citing Vance v. State, 640 N.E.2d 51, 57 (Ind. 1994))

Matters that may be judicially noticed: Statutory text

• A court may judicially notice a law, which includes:

(1) the decisional, constitutional, and public statutory law;

(2) rules of court;

(3) published regulations of governmental agencies;

(4) codified ordinances of municipalities;

(5) records of a court of this state; and

(6) laws of other governmental subdivisions of the United States or any state, territory or other jurisdiction of the United States.

Evid. R. 201(b)

• The court may judicially notice:

(1) a fact that:

(A) is not subject to reasonable dispute because it is generally known within the trial court’s territorial jurisdiction, or

(B) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

(2) the existence of:

(A) published regulations of governmental agencies;

(B) ordinances of municipalities; or

(C) records of a court of this state.

Evid. R. 201(a)

Matters that may be judicially noticed: Decisional, constitutional, and public statutory law

• Courts are permitted to take judicial notice of Indiana law.

Baran v. State, 639 N.E.2d 642, 647 (Ind. 1994)(citing Hernandez v. State, 439 N.E.2d 625, 631 (Ind. 1982))

Sales v. State, 715 N.E.2d 1009, 1010 (Ind. Ct. App. 1999)(citing Evid. R. 201(b))

Matters that may be judicially noticed: Published regulations of governmental agencies

• In fact, courts are required to take judicial notice of the regulations concerning breath testing.

Baran v. State, 639 N.E.2d 642, 647 (Ind. 1994)(citing IC 4-22-9-3)

Sales v. State, 715 N.E.2d 1009, 1010 (Ind. Ct. App. 1999)

• Any rule that has been adopted in conformity with IC 4-22-2 (including a matter incorporated by reference into a rule) shall be judicially noticed by all courts and agencies of this state.

IC 4-22-9-3(a)

Matters that may be judicially noticed: Codified ordinances of municipalities

• Evidence Rule 201(b) allows a court to take judicial notice of law, which is defined to include “codified ordinances of municipalities.”

City of Crown Point v. Misty Woods Props., LLC, 864 N.E.2d 1069, 1074 n. 2 (Ind. Ct. App. 2007)(quoting Evid. R. 201(b))

Matters that may be judicially noticed: Records of a court of Indiana

• Until recently, the general rule in Indiana was that “a trial court may not take judicial notice even of its own records in another case previously before the court on a related subject with related parties.” Gray v. State, 871 N.E.2d 408, 413 (Ind. Ct. App. 2007), trans. denied. However, effective January 1, 2010, Indiana Evidence Rule 201(b) was amended to provide that a court may take judicial notice of “records of a court of this state . . . .”

In re D.K., 968 N.E.2d 792, 796 (Ind. Ct. App. 2012)

See In re Paternity of P.R., 940 N.E.2d 346, 349 (Ind. Ct. App. 2010)(quoting Evid. R. 201(b)(5))(“Evidence Rule 201 was amended in 2009 and went into effect on January 1, 2010. Pursuant to the amendment, a court may now take judicial notice of ‘records of a court of this state.’ Before this amendment, a court could not take judicial notice of its own records in another case previously before it, even on a related subject with related parties.”)

• Thus, even in a proceeding governed by the Evidence Rules, a trial court may take judicial notice of records of another Indiana court, and may do so at any stage of the proceeding.

Christie v. State, 939 N.E.2d 691, 693 (Ind. Ct. App. 2011)

E.g., Withers v. State, 15 N.E.3d 660, 664 (Ind. Ct. App. 2014)(“[The defendant’s] argument that judicial notice of the Attendance Reports was improper ignores Indiana Evidence Rule 201(b)(5), which provides in relevant part that a court may judicially notice a law, including ‘records of a court of this state.’ The Attendance Records were records of the Drug Court, prepared under its supervision and as part of its treatment program for [the defendant]. Thus, the trial court was authorized to take judicial notice of them pursuant to Evidence Rule 201(b)(5).”)

• We observe that the judicial notice of the Attendance Records does not mean that the facts within them were conclusive; the parties were free to contest the facts.

Withers v. State, 15 N.E.3d 660, 664 (Ind. Ct. App. 2014)

• Evidence Rule 201(b) now allows trial courts to take judicial notice of records of other court proceedings, but if a court does so, there must be some effort made to include such “other” records in the record of the current proceeding.

In re D.K., 968 N.E.2d 792, 796 (Ind. Ct. App. 2012)

• Applying Evidence Rule 201 to the case at hand, we conclude that the trial court properly took judicial notice of the protective order file.

In re Paternity of P.R., 940 N.E.2d 346, 350 (Ind. Ct. App. 2010)

• Courts may take judicial notice of another county's conviction in order to revoke probation in the original county of conviction; however, the documents from the other county must be reliable.

Watters v. State, 22 N.E.3d 617, 619 (Ind. Ct. App. 2014)(citing Christie v. State, 939 N.E.2d 691, 693 (Ind. Ct. App. 2011))

• We have held the “certification of the documents by the court provides substantial indicia of their reliability.”

Watters v. State, 22 N.E.3d 617, 619 (Ind. Ct. App. 2014)(quoting Pitman v. State, 749 N.E.2d 557, 559 (Ind. Ct. App. 2001), reh’g denied, trans. denied)

• In lieu of certified copies, we have held an affidavit from the issuing agency satisfies the evidentiary requirement for a hearing to revoke probation and proves the document's underlying “substantial trustworthiness.”

Watters v. State, 22 N.E.3d 617, 619 (Ind. Ct. App. 2014)(quoting Reyes v. State, 868 N.E.2d 438, 442 (Ind. 2007), reh’g denied)

Matters that may be judicially noticed: Laws of other governmental subdivisions of the United States or any state, territory or other jurisdiction of the United States

• Every court in Indiana shall take judicial notice of the common law and statutes of every state, territory, and other jurisdiction of the United States.

IC 34-38-4-1

• [IC 34-38-4-1] provides that Indiana courts shall take judicial notice of the common law and statutes of every state, territory and other jurisdictions in the United States.

Mann v. State, 754 N.E.2d 544, 549 (Ind. Ct. App. 2001), trans. denied(citing IC 34-38-4-1)

• [W]hen we take judicial notice of statutes from another state, we do so out of respect for that state's laws. We recognize that each state has the right to structure its laws as it deems appropriate. We accept that and find that it is appropriate to take judicial notice of such statutes.

Hornbostel v. State, 757 N.E.2d 170, 177 n.1 (Ind. Ct. App. 2001), trans. denied

Matters that may be judicially noticed: Facts

• [C]ourts may also take judicial notice of a fact.

Sales v. State, 715 N.E.2d 1009, 1011 (Ind. Ct. App. 1999)(citing Evid. R. 201(a))

• 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.

Rosendaul v. State, 864 N.E.2d 1110, 1116 (Ind. Ct. App. 2007), trans. denied(citing Evid. R. 201(a))

See Woods v. State, 654 N.E.2d 1153, 1155 (Ind. Ct. App. 1995)(citing Stewart v. Stewart, 521 N.E.2d 956, 959, n. 2 (Ind.Ct.App.1988), reh’g denied, trans. denied)(A trial judge may take judicial notice of a fact which is either generally known within the territorial jurisdiction of the trial court, or is capable of accurate and ready determination by resorting to a source whose accuracy cannot reasonably be disputed.”)

See also Lightcap v. State, 863 N.E.2d 907, 909 (Ind. Ct. App. 2007)(citing Stewart v. Stewart, 521 N.E.2d 956, 959, n. 2 (Ind.Ct.App.1988), reh’g denied, trans. denied)(“Facts that are judicially noticed must be generally known or capable of accurate determination by resort to sources whose accuracy cannot reasonably be questioned.”)

See also Lutz v. Erie Ins. Exch., 848 N.E.2d 675, 678 (Ind. 2006)(“A judicially-noticed fact must be ‘one not subject to reasonable dispute’ because it is ‘generally known’ or ‘capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.’”)

• The color of a traffic light at any particular time and place is plainly not generally known or resolvable by resort to any unquestionable source.

Lutz v. Erie Ins. Exch., 848 N.E.2d 675, 678 (Ind. 2006)

• In this case, [the defendant] does not argue that the requirements of Rule 201 were not met. Indeed they were. . . . [T]he fact that Howe is a private school is generally known within LaGrange County.

Haley v. State, 736 N.E.2d 1250, 1253 (Ind. Ct. App. 2000)

• We take judicial notice of the following: Ohio and Dearborn counties share a common border in Indiana. Moreover, the Ohio River—which divides Indiana from Kentucky—forms the eastern border of both Ohio and Dearborn counties. Further, Boone County, Kentucky is adjacent to both Ohio and Dearborn counties across the Ohio River.

Eberle v. State, 942 N.E.2d 848, 856 (Ind. Ct. App. 2011), trans. denied

• Courts have routinely taken judicial notice of commonly known facts such as the location of county seats, the powers and duties of public bodies or public officers, attorneys admitted to the bar, Indiana statutes, Indiana's Constitution and case law, congressional committee reports, historical facts, and the computation of time.

Lightcap v. State, 863 N.E.2d 907, 909 (Ind. Ct. App. 2007)(citing City of Hammond v. Doody, 553 N.E.2d 196, 198 (Ind. Ct. App. 1990))

Taking notice

• The court:

(1) may take judicial notice on its own; or

(2) must take judicial notice if a party requests it and the court is supplied with the necessary information.

Evid. R. 201(c)

• A court may take judicial notice whether requested or not.

Sanders v. State, 782 N.E.2d 1036, 1038 n. 4 (Ind. Ct. App. 2003)(citing Evid. R. 201(c))

Timing

• The court may take judicial notice at any stage of the proceeding.

Evid. R. 201(d)

• [A] court may take judicial notice at any stage of the proceedings, including on appeal.

CGC Enters. v. State Bd. of Tax Com’rs, 714 N.E.2d 801, 803 (Ind. T.C. 2012)

• Because Rule 201 provides that a trial court can take judicial notice at any stage of the proceeding, it does not matter that the court took judicial notice after the hearing was concluded.

In re Paternity of P.R., 940 N.E.2d 346, 350 (Ind. Ct. App. 2010)

Opportunity to be heard

• On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard.

Evid. R. 201(e)

• [A] party does not have to be notified before a court takes judicial notice.

In re Paternity of P.R., 940 N.E.2d 346, 349-50 (Ind. Ct. App. 2010)

• We understand that the Indiana Rules of Evidence allows litigants to respond to this information at any stage of the proceeding, but we believe that, where practicable, the best practice is for courts to notify the parties before taking notice of and issuing a ruling which utilizes this information.

In re Paternity of P.R., 940 N.E.2d 346, 349-50 (Ind. Ct. App. 2010)

Instructing the jury

• In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.

Evid. R. 201(f)

Relationship to the right of confrontation

• We find that although judicially noticed facts are contradictory to the right of confrontation, they are admissible so long as the requirements of Indiana Rule of Evidence 201 are met. By satisfying the requirements of this evidence rule, the reliability of the judicially noticed facts is safeguarded, and thus, their admission does not violate the constitutional right of confrontation.

Haley v. State, 736 N.E.2d 1250, 1252-53 (Ind. Ct. App. 2000)

• For information about the right of confrontation, please review Right of Confrontation.