Section 201.    Judicial Notice of Adjudicative Facts

(a) Scope. This section 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 resources whose accuracy cannot reasonably be questioned.

(c) When Taken. A court may take judicial notice at any stage of the proceeding, whether requested or not, except a court shall not take judicial notice in a criminal trial of any element of an alleged offense.

(d) Opportunity to Be Heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety 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.

(e) 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 they may, but are not required to, accept as conclusive any fact which the court has judicially noticed.

NOTE

Subsection (a). There is a settled distinction between “adjudicative facts” and “legislative facts.” See Cast Iron Soil Pipe Inst. v. Board of State Examiners of Plumbers & Gas Fitters, 8 Mass. App. Ct. 575, 586, 396 N.E.2d 457, 464 (1979), and cases cited. Adjudicative facts are “the kind of facts that go to a jury in a jury case.” Reid v. Acting Comm’r of the Dep’t of Community Affairs, 362 Mass. 136, 142, 284 N.E.2d 245, 249 (1972), quoting Davis, Administrative Law Treatise § 7.02. Legislative facts are those facts, including statistics, policy views, and other information, that constitute the reasons for legislation or administrative regulations. See Massachusetts Fed’n of Teachers, AFT, AFL-CIO v. Board of Educ., 436 Mass. 763, 772, 767 N.E.2d 549, 558 (2002). Accord United States v. Bello, 194 F.3d 18, 23 (1st Cir. 1999).

The Supreme Judicial Court is “not inclined towards a narrow and illiberal application of the doctrine of judicial notice.” Finlay v. Eastern Racing Ass’n, Inc., 308 Mass. 20, 27, 30 N.E.2d 859, 863 (1941).

For an extensive list of matters on which a court may take judicial notice, see W.G. Young, J.R. Pollets, & C. Poreda, Annotated Guide to Massachusetts Evidence § 201 (2011 ed.).

Subsection (b)(1). This subsection is derived from Nantucket v. Beinecke, 379 Mass. 345, 352, 398 N.E.2d 458, 462 (1979). See also Commonwealth v. Kingsbury, 378 Mass. 751, 754, 393 N.E.2d 391, 393 (1979). Accord Dimino v. Secretary of Commonwealth, 427 Mass. 704, 707, 695 N.E.2d 659, 662 (1998) (“Factual matters which are ‘indisputably true’ are subject to judicial notice” [citations omitted].).

Subsection (b)(2). This subsection is derived from Commonwealth v. Green, 408 Mass. 48, 50 n.2, 556 N.E.2d 387, 389 n.2 (1990). See also Commonwealth v. Kingsbury, 378 Mass. 751, 754, 393 N.E.2d 391, 393 (1979). Accord Commonwealth v. Greco, 76 Mass. App. Ct. 296, 301 & n.11, 921 N.E.2d 1001, 1006 & n.11 (2010) (“judge did not err in taking judicial notice of the single and indisputable fact that, based upon the PDR [Physician’s Desk Reference], Seroquel is the brand name for the generic drug quetiapine,” while “not suggest[ing] that the PDR may be judicially noticed for other purposes”); Federal Nat’l Mtge. Ass’n v. Therrian, 42 Mass. App. Ct. 523, 525, 678 N.E.2d 193, 195 (1997) (“facts which are . . . verifiably true [e.g., Lynn is in Essex County] are susceptible of judicial notice”).

The court may take judicial notice of facts in connection with motions under Mass. R. Civ. P. 12(b)(6) and 12(c), as well as the records of the court in related actions. Jarosz v. Palmer, 436 Mass. 526, 530, 766 N.E.2d 482, 487 (2002).

“Judicial notice is not to be extended to personal observations of the judge or juror.” Nantucket v. Beinecke, 379 Mass. 345, 352, 398 N.E.2d 458, 462 (1979), citing Duarte, petitioner, 331 Mass. 747, 749–750, 122 N.E.2d 890, 892 (1954). See also Commonwealth v. Kirk, 39 Mass. App. Ct. 225, 229, 654 N.E.2d 938, 941–942 (1995) (“judicial notice . . . cannot be taken of material factual issues that can only be decided by the fact finder on competent evidence”).

In Yankee Atomic Elec. Co. v. Secretary of the Commonwealth, 402 Mass. 750, 759 n.7, 525 N.E.2d 369, 374 n.7 (1988), the court explained the difference between “judicial notice” of facts and “official notice” of facts. The latter includes matters that are “indisputably true,” as well as other factual matters that an agency may take notice of due to its special familiarity with the subject matter. See G. L. c. 30A, § 6.

Subsection (c). This subsection, which is derived from Fed. R. Evid. 201(f) and Proposed Mass. R. Evid. 201(f), reflects the Massachusetts practice that judicial notice may be taken at any time by a trial or appellate court. Maguire v. Director of Office of Medicaid, 82 Mass. App. Ct. 549, 551 n.5, 976 N.E.2d 205, 207 n.5 (2012). Commonwealth v. Grinkley, 44 Mass. App. Ct. 62, 69 n.9, 688 N.E.2d 458, 464 n.9 (1997). While there is no express authority for the proposition that judicial notice is discretionary in connection with adjudicative facts, see Commonwealth v. Finegan, 45 Mass. App. Ct. 921, 922, 699 N.E.2d 1228, 1229 (1998), the principle follows logically from the settled proposition that when there are no disputed facts, a legal dispute is ripe for a decision by the court. See Jackson v. Longcope, 394 Mass. 577, 580 n.2, 476 N.E.2d 617, 620 n.2 (1985) (judicial notice may be taken by the court in connection with a motion to dismiss under Mass. R. Civ. P. 12[b][6]); Commonwealth v. Kingsbury, 378 Mass. 751, 754–755, 393 N.E.2d 391, 393 (1979) (“The right of a court to take judicial notice of subjects of common knowledge is substantially the same as the right of jurors to rely on their common knowledge.”). See also Commonwealth v. Marzynski, 149 Mass. 68, 72, 21 N.E. 228, 229 (1889) (court took judicial notice that cigars were not drugs or medicine and properly excluded expert opinions stating the contrary). Courts may take judicial notice of their own records. See, e.g., Jarosz v. Palmer, 436 Mass. 526, 530, 766 N.E.2d 482, 487 (2002). But see Commonwealth v. Berry, 463 Mass. 800, 804 n.6, 979 N.E.2d 218, 222 n.6 (2012) (appellate court will not take judicial notice of contents of police report included in trial court file where report was not introduced into evidence or considered by motion judge and was not made part of record on appeal).

Criminal Cases. The defendant’s constitutional right to trial by jury means that the “trier of fact, judge or jury, cannot be compelled to find against the defendant as to any element of the crime.” Commonwealth v. Pauley, 368 Mass. 286, 291, 331 N.E.2d 901, 905 (1975). Although the court may take judicial notice of an adjudicative fact in a criminal case, see Commonwealth v. Green, 408 Mass. 48, 50 & n.2, 556 N.E.2d 387, 389 & n.2 (1990), “[t]he proper practice in a criminal trial is to submit all factual issues to the jury, including matters of which the judge may take judicial notice.” Commonwealth v. Kingsbury, 378 Mass. 751, 755, 393 N.E.2d 391, 393–394 (1979), citing Fed. R. Evid. 201(g).

Subsection (d). This subsection is derived from the principle, grounded in due process considerations, that a party has a right to notice of matters that the court will adjudicate. See Department of Revenue v. C.M.J., 432 Mass. 69, 76 n.15, 731 N.E.2d 501, 507 n.15 (2000), and cases cited.

Subsection (e). The first sentence of this subsection, which is taken verbatim from Fed. R. Evid. 201(g) and Proposed Mass. R. Evid. 201(g), reflects Massachusetts practice. It is consistent with and follows from the principle set forth in Section 201(c). The second sentence is derived from Commonwealth v. Kingsbury, 378 Mass. 751, 754–755, 393 N.E.2d 391, 393–394 (1979), and Commonwealth v. Finegan, 45 Mass. App. Ct. 921, 923, 699 N.E.2d 1228, 1229 (1998), where the courts noted that any fact that is the subject of judicial notice in a criminal case must be given to the jury for its determination. See generally United States v. Bello, 194 F.3d 18, 22–26 (1st Cir. 1999) (explaining relationship between Fed. R. Evid. 201[b] and Fed. R. Evid. 201[g]).

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Section 202.    Judicial Notice of Law

(a) Mandatory. A court shall take judicial notice of

(1) the General Laws of the Commonwealth, public acts of the Massachusetts Legislature, the common law of Massachusetts, rules of court, the contents of the Code of Massachusetts Regulations, and Federal statutes, and

(2) the contents of Federal regulations and the laws of foreign jurisdictions that are brought to the court’s attention.

(b) Permissive. A court may take judicial notice of the contents of Federal regulations and the laws of foreign jurisdictions not brought to its attention, legislative history, municipal charters, and charter amendments.

(c) Not Permitted. A court is not permitted to take judicial notice of municipal ordinances, town bylaws, special acts of the Legislature, or regulations not published in the Code of Massachusetts Regulations.

NOTE

Subsections (a)(1) and (2). These subsections are derived from 44 U.S.C. § 1507 (contents of the Federal Register shall be judicially noticed); G. L. c. 30A, § 6 (regulations published in the Code of Massachusetts Regulations shall be judicially noticed); and G. L. c. 233, § 70 (“The courts shall take judicial notice of the law of the United States or of any state, territory or dependency thereof or of a foreign country whenever the same shall be material.”). See also Cohen v. Assessors of Boston, 344 Mass. 268, 269, 182 N.E.2d 138, 139 (1962); Ralston v. Commissioner of Agric., 334 Mass. 51, 53–54, 133 N.E.2d 589, 591 (1956); Mastrullo v. Ryan, 328 Mass. 621, 622, 105 N.E.2d 469, 470 (1952); Brodsky v. Fine, 263 Mass. 51, 54, 160 N.E. 335, 337 (1928).

The party which seeks to have the court notice or apply any foreign law has the burden of bringing it to the court’s attention. See Mass. R. Crim. P. 39(b) (“The court shall upon request take judicial notice of the law of the United States or of any state, territory, or dependency thereof or of a foreign country whenever it shall be material.”); Mass. R. Civ. P. 44.1 (“A party who intends to raise an issue concerning the law of the United States or of any state, territory or dependency thereof or of a foreign country shall give notice in his pleadings or other reasonable written notice. The court, in determining such law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under Rule 43. The court’s determination shall be treated as a ruling on a question of law.”).

Subsection (b). This subsection is derived from G. L. c. 43B, § 12; Blue Hills Cemetery, Inc. v. Board of Registration in Embalming & Funeral Directing, 379 Mass. 368, 375 n.10, 398 N.E.2d 471, 476 n.10 (1979), citing Pereira v. New England LNG Co., 364 Mass. 109, 122, 301 N.E.2d 441, 449 (1973) (notice of legislative history is permissive); and New England Trust Co. v. Wood, 326 Mass. 239, 243, 93 N.E.2d 547, 549 (1950) (notice of charters and charter amendments of cities and towns).

Subsection (c). Courts “will not take judicial cognizance of municipal ordinances, or of special acts of the Legislature” (citations omitted). Brodsky v. Fine, 263 Mass. 51, 54, 160 N.E. 335, 337 (1928). Furthermore, “[t]he general rule in Massachusetts is that courts do not take judicial notice of regulations [not included in the Code of Massachusetts Regulations]; they must be put in evidence” (citations and quotations omitted). Peters v. Haymarket Leasing, Inc., 64 Mass. App. Ct. 767, 775 n.11, 835 N.E.2d 628, 635 n.11 (2005). Printed copies of legislative acts and resolves and attested copies of municipal ordinances, bylaws, rules, and regulations are admissible. G. L. c. 233, § 75.

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