Back in 1995, the LA Times ran an article about O.J. Simpson's defense team's "assault on the [Los Angeles Police] department's ability to use sophisticated science to solve crimes." One its expert witnesses walked the jury through powerful demonstrative evidence detailing DNA contamination in its crime lab. Beyond the Simpson case, the article quoted a defense attorney who said the witness' testimony "will provide ammunition for years to come for lawyers defending poor clients who don't have the ability to mount an expensive, Simpson-style defense." When asked to explain how, the defense attorney stated that in future cases, "the defendants' attorneys will simply ask the court to take judicial notice of the [expert witness'] testimony."
Judicial notice? Of an expert witness' testimony from a prior case?
Most litigators are generally familiar with the concept of judicial notice. Most basically, it is the conclusive establishment of a fact without providing formal proof. See e.g., United States v. Harrison, 651 F.2d 353, 355 (5th Cir. 1981); Gravert v. DeLuse, 6 Cal. App. 3d 576, 580 (1970). In civil cases, the judge must instruct the jury to accept the noticed fact as conclusive. See Fed. R. Evid. 201(f); see also Cal. Evid. Code § 457. In pretrial litigation, judicial notice requests are used in pleadings to establish some needed fact without an attesting witness. Prior to trial, deciding whether to request judicial notice is less a strategic decision than a pragmatic one. If a certain fact can be established through judicial notice, there is no reason not to use it.
Jury trials are a different story. Beyond getting facts simply into the record, special attention must always be given to the issue of persuasion. Additionally, the simplicity of the judicial notice procedure can sometimes conceal the complexity of its application. The following discusses four must-know rules for judicial notice.
Must-Know Rule #1: Weigh the Pros and Cons
Just because judicial notice is available does not mean it's advisable. Trial lawyers must—like virtually every trial decision—weigh the pros and cons through the lens of persuasion. What method will be most compelling to the jury? This might mean requesting judicial notice. But it might not.
One of the obvious pros of judicial notice is that it is fast and inexpensive. It may be easier, for example, to have the court take judicial notice of the weather conditions on a certain day versus tracking down a witness to attest to it. Another pro is that the judge’s pronouncement that a matter is conclusively established can implicitly give credibility to a party's case. In closing argument, you can run through the facts of the case and—referring to the fact judicially noticed—remind the jury that this fact is beyond dispute, because the judge said so.
But there are potential downsides. One downside is that it’s a little boring. Using our weather example, the judge will advise the jury of the weather conditions in a disinterested and dispassionate manner: "Ladies and gentleman of the jury, you are to accept the following as conclusively true: the weather in Townsville on January 1st had a low of 25 degrees and a high of 45, there was precipitation throughout the day with winds from the southeast." Essentially, it will sound like a pilot telling passengers the weather conditions of the destination city. Pretty dull. If the fact is potentially important to the case, a witness painting a picture in the jury’s eyes may be the better route.
Must-Know Rule #2: A Substitute for Evidence Cannot Bypass Relevance
Like any rule of evidence, the details mustn't swallow the whole. Just because something is judicially noticeable does not mean it's admissible. The first line of inquiry when considering any evidence question is whether the evidence is relevant.
For example, in the 9th circuit case of Milton Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983 (9th Cir. 2012), the issue was whether Marilyn Monroe’s heirs inherited a right of publicity. Monroe passed away in 1962. Id. at 986. In 2005, Marilyn Monroe LLC—a company formed by her acting coach and close friend—sued Milton Greene Archives alleging that Milton Greene was using Monroe’s image and likeness for unauthorized commercial purposes in violation of Monroe’s right of publicity. Id. at 990 - 991.
At issue was whether the law recognized a descendable, posthumous right of publicity. Id. at 985. California recognized the law while New York did not. Id. at 991 - 992. For purposes of the right of publicity, Monroe LLC argued that Monroe was domiciled in California when she died. Id. at 992. However, in the forty years of probate proceedings, Monroe’s heirs and executor repeatedly represented that she was domiciled in NY for purposes of avoiding California estate taxes. Id. at 998. The court ultimately granted summary judgment in favor of Greene and the 9th Circuit affirmed, but the case includes a denial to a request from Greene that the court take judicial notice of appeals pending in the Second Circuit of related cases. Id. at 991, n. 8. The Court acknowledged that the case involved claims about the ownership of Monroe’s right of publicity, but the issues on appeal had nothing to do with the claims being litigated in the case. Thus a court can take notice of the existence of proceedings in other courts, but only if those proceedings have a direct relation to the matters at issue. Id. In other words, a court will take judicial notice of something only if it is also relevant.
Must-Know Rule #3: Beware of Trojan Horse Hearsay
Similar to relevance, judicial notice is not an exception to the hearsay rule. This is best illustrated in American Prairie Const. Co. v. Hoich, 560 F.3d 780 (8th Cir. 2009) wherein the district court judicially noticed several documents when doing its own research in a contract action. American Prairie involved an appeal of a district court ruling that found John Hoich personally liable for $2.5 million to a binding settlement agreement reached during a bankruptcy proceeding. The bankruptcy proceeding involved numerous parties and entities. After a series of settlement meetings and negotiations, an agreement was read into the record, but Hoich was not present or represented by counsel. Id. at 787. One of the attorneys explained to the court that he did not represent Hoich, "but it [was his] understanding that Mr. Hoich personally committed to this deal," and that "[James] Jandrain is here to confirm that." Id. James Jandrain was a certified public accountant and in the gallery during the hearing, but he was never asked to confirm whether Mr. Hoich had agreed to be bound by the deal. Id. When performance of the alleged agreement did not occur, a contract action was filed and the district court held that (1) the agreement read into the record was binding, and (2) Hoich was personally liable when he failed to perform. Id. at 788 - 789. Hoich appealed.
Among the issues reviewed on appeal was the district court's taking judicial notice of (1) certain business records of a corporate entity, and (2) a book written by Hoich. Id. at 796. The business records included corporate minutes indicating that Jandrain was present at a meeting and had a proxy for Hoich. The book that Hoich wrote included pictures of Hoich with Jandrain on Hoich's airplane with a corresponding caption, "Jim Jandrain, John's CPA and friend on John's plan in 2005...." Based on these documents, the district court found that Jandrain was Hoich's agent (for purposes of being bound to the settlement agreement). The court also added: "John Hoich is not a babe in the woods. He is a very intelligent and enormously successful business person.... He is a friend of more than one President of the United States. he is a friend of Warren Buffet of Omaha, perhaps the most sophisticated business person in the world." Id.
The Eighth Circuit concluded that the district court erred in taking judicial notice in multiple ways. First, when taking judicial notice of adjudicative facts, the judge is required to give the parties notice and an opportunity to object to the taking of judicial notice. Id. at 797, citing Fed. R. Evid. 201. Second, the Court explained that "[c]aution must also be taken to avoid admitting evidence, through the use of judicial notice, in contravention of the relevancy, foundation, and hearsay rules. Each judicially noticed document included hearsay evidence which is generally only admissible at trial through an enumerated hearsay exception. No such foundation was laid for the ... business records before the court took judicial notice of the documents. Further, a proper foundation was not laid for the admission of statements in Hoich's book." Id.
Must-Know Rule #4: Judicial Notice's High Standard v. Relevance's Low Standard
Because a judicially noticed matter is beyond dispute (the jury must accept the noticed matter as true), it has a high standard. If the matter can be "reasonably questioned," the matter should not be judicially noticed. The standard for admitting relevant evidence, on the other hand, is decidedly low. "Even if "a district court believes the evidence is insufficient to prove the ultimate point for which it is offered, it may not exclude the evidence if it has the slightest probative worth.” United States v. Whittington, 455 F.3d 736, 738 - 739 (6th Cir. 2006). “[A] piece of evidence does not need to carry a party's evidentiary burden in order to be relevant; it simply has to advance the ball.” Dortch v. Fowler, 588 F.3d 396, 401 (6th Cir. 2009).
In Rowe v. Gibson, 798 F.3d 622, 629 (7th Cir. 2015), the Seventh Circuit cited to various medical websites in reversing summary judgment. The plaintiff, a pro se inmate, alleged that various prison administrators violated his civil rights by depriving him of certain heartburn medication. The plaintiff was previously diagnosed, while he was an inmate at the prison, with gastroesophageal reflux disease (GERD), and had been prescribed Zantac. Id. at 623 - 624. Plaintiff was permitted to have Zantac pills in his cell and take them when he needed them. Id. at 624. Two years after his diagnosis and prescription, however, Plaintiff's pills were confiscated and instead administered by a nurse at 9:30 a.m. and 9:30 p.m. (meals were scheduled at 4 a.m. and 4 p.m.). Id. Plaintiff complained that this made his GERD worse, but the defendants filed a motion for summary judgment essentially arguing that the revised Zantac protocol was not problematic. The prison physician (and named) defendant submitted an affidavit stating that "it [did] not matter what time of day [Plaintiff] receives his Zantac prescription. Each Zantac pill is fully effective for twelve-hour increments. Zantac does not have to be taken before or with a meal to be effective." Id. at 625.
The Court reversed summary judgment based, in part, on "limited Internet research that we have conducted in default of the parties' having done so." Id. at 630. The Court was sympathetic to the fact that the plaintiff, an inmate, was unable to present an expert witness to dispute the prison's physician: "[T]o credit [they prison's doctor's] evidence that it doesn't matter when you take Zantac for relief of GERD symptoms ... just because [Plaintiff] didn't present his own expert witness would make no sense--for how could [Plaintiff] find such an expert and persuade him to testify?" Id. at 629. Because the plaintiff had no expert (or attorney), the Court acknowledged doing its own medical research and citing it throughout the opinion:
In citing even highly reputable medical websites in support of our conclusion that summary judgment was premature we may be thought to be "going outside the record" in an improper sense. It may be said that judges should confine their role to choosing between the evidentiary presentations of the opposing parties, much like referees of athletic events. But judges and their law clerks often conduct research on cases, and it is not always research confined to pure issues of law, without disclosure to the parties.
Id. at 629.
But the Court was quick to acknowledge that it "must observe proper limitations on judicial research." Id. Judges must "... distinguish between  judicial web searches for mere background information that will help the judges and the readers of their opinions understand the case,  web searches for facts or other information that judges can properly take judicial notice of (such as when it became dark on a specific night...), and  web searches for facts normally determined by the factfinder after an adversary procedure that produces a district court or administrative record." Id.
With respect to the various medical websites cited in the opinion, the Court suggested that the evidence was somewhere "between  facts that require an adversary procedure to determine[,] and  facts of which a court can take judicial notice...." Id. The Court gave itself kudos for essentially hitting the sweet spot between being able to consider evidence that was not supplied by either party but not being required to take judicial notice of any of it:
Rule 201 of the Federal Rules of Evidence makes facts of which judicial notice properly taken conclusive, and therefore requires that their accuracy be indisputable for judicial notice to be taken of them. We are not deeming the Internet evidence cited in this opinion conclusive or ever certifying it as being probably correct, though it may well be correct since it is drawn from reputable medical websites. We use it only to underscore the existence of a genuine dispute of material fact created in the district court proceedings by entirely conventional evidence, namely [Plaintiff's] reported pain.
Id. at 629.
Virtually conceding this no man's land the Court found itself in, the Court essentially insisted that it should be permitted to do what it did: "There is a high standard for taking judicial notice of a fact, and a low standard for allowing evidence to be presented in the conventional way, by testimony subject to cross-examination, but is there no room for anything in between? Must judges abjure visits to the Internet websites of premier hospitals and drug companies, not in order to take judicial notice but to assure the existence of a genuine issue of material fact that precludes summary judgment?" Id.
Rowe is an interesting read, but it's an anomaly. The most pragmatic takeaway? The standard for judicial notice is high while the standard for relevant evidence is low. If there is any chance that your request for judicial notice will be denied because the fact might be reasonably questioned, have actual evidence on the ready.
Judicial notice is facially simple while a little tricky to apply. Knowing these rules can help guide our strategy when we're the proponents or opponents of a request for judicial notice.
David Sugden is a shareholder at Call & Jensen in Newport Beach, California.
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