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Guide to Evidence

Guide to Evidence Article II: Judicial notice

Adopted Date: 01/01/2019

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Section 201. Judicial notice of adjudicative facts

(a) Scope

This section governs judicial notice of an adjudicative fact only, not a legislative fact. 

(b) Kinds of facts that may be judicially noticed 

The court may judicially notice a fact that is not subject to reasonable dispute because it 

(1) is generally known within the trial court’s territorial jurisdiction or 

(2) can be accurately and readily determined from sources 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 

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. 

(e) Instructing the jury 

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

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 (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 (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 (2002). Accord United States v. Bello , 194 F.3d 18, 23 (1st Cir. 1999). Judges “should use great caution before conducting independent research into factual matters, partic-ularly on the internet.” Commonwealth v. Hilaire, 92 Mass. App. Ct. 784, 789 & n.7 (2018) (demographic data used to identify defendant as perpetrator of home invasion was adjudicatory fact not appropriate for judicial notice), citing ABA Comm. on Ethics and Prof’l Responsibility, Independent Factual Research by Judges Via the Internet, Formal Op. 478 (2017).    

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 (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 (2017–2018 ed.). 

Subsection (b)(1). This subsection is derived from Nantucket v. Beinecke , 379 Mass. 345, 352 (1979). See also Commonwealth v. Kingsbury , 378 Mass. 751, 754 (1979). Accord Dimino v. Secretary of Commonwealth , 427 Mass. 704, 707 (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 (1990). See also Commonwealth v. Kingsbury , 378 Mass. 751, 754 (1979). Accord Commonwealth v. Greco , 76 Mass. App. Ct. 296, 301 & 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 (1997) (“facts which are . . . verifiably true [e.g., Lynn is in Essex County] are susceptible of judicial notice”). “Judicial notice is not to be extended to personal observations of the judge or juror.” Nantucket v. Beinecke , 379 Mass. 345, 352 (1979), citing Duarte, petitioner , 331 Mass. 747, 749–750 (1954). See also Commonwealth v. Kirk , 39 Mass. App. Ct. 225, 229 (1995) (“judicial notice . . . cannot be taken of material factual issues that can only be decided by the fact finder on competent evidence”).  Cf. Commonwealth v. Hilaire, 92 Mass. App. Ct. 784, 789 (2018) (inappropriate for a motion judge to take judicial notice of demographic data in order to “connect a defendant to the description of suspects or to a crime”).

In Yankee Atomic Elec. Co. v. Secretary of the Commonwealth , 402 Mass. 750, 759 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 .    

Court Records and Prior Proceedings. “[A] judge may take judicial notice of the court’s records in a related action.” Jarosz v. Palmer, 436 Mass. 526, 530 (2002). See also Adoption of Zak, 90 Mass. App. Ct. 840, 844 n.7 (2017); Home Depot v. Kardas, 81 Mass. App. Ct. 27, 28 (2011). In contrast, “[a] judge may not take judicial notice of facts or evidence brought out at a prior hearing that are not also admitted in evidence at the current hearing.” Commonwealth v. O’Brien, 423 Mass. 841, 848–849 (1996); Furtado v. Furtado, 380 Mass. 137, 140 n.1 (1980); Ferriter v. Borthwick, 346 Mass. 391, 393 (1963). See also Care & Protection of Zita, 455 Mass. 272, 283 (2009) (“We recognize the challenges that confront a judge who has presided over a case that is closely related to a new proceeding; it may be impossible to erase a judge’s memory of the prior case. But each party is entitled to an impartial magistrate and a decision based on the evidence presented in her case.”).

Cross-Reference: Section 1115(f)(3), Evidentiary Issues in Care and Protection, Child Custody, and Termination of Parental Rights Cases: Other Evidence: Judicial Findings from Prior Proceedings.

Subsection (c). This subsection, which is derived from Fed. R. Evid. 201(d) 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 (2012). Commonwealth v. Grinkley , 44 Mass. App. Ct. 62, 69 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 (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 (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 (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 (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 (2002). But see Commonwealth v. Berry , 463 Mass. 800, 804 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 (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 (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 (1979), citing Fed. R. Evid. 201(g) (currently codified at Fed. R. Evid. 201[f]). 

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 (2000), and cases cited. Even in situations where information is appropriate for judicial notice under Section 201(b)(2), it should not be taken without notice to the parties and an opportunity to be heard. Commonwealth v. Hilaire, 92 Mass. App. Ct. 784, 789 (2018) (motion judge improperly took judicial notice of adjudicatory fact after evidentiary hearing concluded and without notice to [or input from] the parties).

Subsection (e). The first sentence of this subsection, which is taken verbatim from Fed. R. Evid. 201(f), 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 (1979), and Commonwealth v. Finegan , 45 Mass. App. Ct. 921, 923 (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], currently codified at Fed. R. Evid. 201[f]).

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 (1962); Ralston v. Commissioner of Agric. , 334 Mass. 51, 53–54 (1956); Mastrullo v. Ryan , 328 Mass. 621, 622 (1952); Brodsky v. Fine , 263 Mass. 51, 54 (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 Commonwealth v. Lys, 481 Mass. 1, 10 (2018) (notice of “temporary protected status” designation for foreign nationals issued by Secretary of Homeland Security and published in Federal Register); Blue Hills Cemetery, Inc. v. Board of Registration in Embalming & Funeral Directing , 379 Mass. 368, 375 n.10 (1979), citing Pereira v. New England LNG Co. , 364 Mass. 109, 122 (1973) (notice of legislative history is permissive); and New England Trust Co. v. Wood , 326 Mass. 239, 243 (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 (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 (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 . The contents of a municipal bylaw or ordinance may also be proved by the oral testimony of police officers. Commonwealth v. Bones, 93 Mass. App. Ct. 681, 685–686 (2018).

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