(Applicable to District Court and Superior Court)
(a) Records of Courts of Other States or of the United States. The records and judicial proceedings of a court of another state or of the United States shall be competent evidence in this Commonwealth if authenticated by the attestation of the clerk or other officer who has charge of the records of such court under its seal.
(b) Notice of Foreign Law. 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.
Rule 39 substantially conforms to G.L. c. 233, §§ 69-70 . See Fed.R.Crim.P. 26.1.
Subdivision (a). General Laws c. 233, § 69 , from which this subdivision is taken, does not require “that a record be fully extended in order to afford proof of judgment if the facts essential thereto are set forth,” Commonwealth v. Rondoni , 333 Mass. 384, 386 (1955). Rondoni should be examined as illustrative of what serves as sufficient attestation by the officer in charge of judicial records. Id. at 385-86.
Subdivision (b). This is taken with little change from G.L. c. 233, § 70 . Although nearly all of the cases which have construed that section are civil, it applies to criminal proceedings as well. See e.g., Commonwealth v. White , 358 Mass. 488, 491 (1970).
The rule states that a court shall notice foreign law upon request when that law is material. This is not intended to limit a court’s authority under § 70 to notice foreign law in the absence of a request if the court so chooses. Dicker v. Klein , 360 Mass. 735, 736-37 (1972); De Gategno v. De Gategno , 336 Mass. 426, 431 (1957). Even upon request, however, a court is not required to notice foreign law unless it is brought to the attention of the court. Tsacoyeanes v. Canadian Pac. Ry. Co. , 339 Mass. 726 (1959). Massachusetts practice is in accord with Fed.R.Evid. 201 which states that “(c) ... A court may take judicial notice, whether requested or not [and] (d) ... shall take judicial notice if requested by a party and supplied with the necessary information.” See Me.R.Evid. 201 (c)-(d).
When a party does make a request for the court to take judicial notice of foreign law, that party carries the burden of proof as to what the law is. Finer v. Steuer , 255 Mass. 611 (1926). The attention of the court may be directed to the law of another jurisdiction by oral testimony of a qualified witness as well as by citation of statutes and decisions. Eastern Offices, Inc. v. P.F. O’Keefe Ad. Agency, Inc. , 289 Mass. 23 (1935). The requirement of bringing the law to the attention of the court and proving it is not satisfied by simply mentioning the appropriate reference to foreign law. “Merely to direct attention to the law of a foreign country written in a foreign tongue does not make it a matter for judicial knowledge.” Rodrigues v. Rodrigues , 286 Mass. 77, 83 (1934). However, where there is not sufficient information available to the litigants as to what is the pertinent foreign law, the court may use other channels available to it in order to determine the law. In Mazurowski, petitioner , 331 Mass. 33 (1954), the court drew upon the superior sources of foreign law and regulations available through the State Department, to which neither party to the litigation has access.