Academic journal article Defense Counsel Journal

Judicial Notice: An Underappreciated and Misapplied Tool of Efficiency

Academic journal article Defense Counsel Journal

Judicial Notice: An Underappreciated and Misapplied Tool of Efficiency

Article excerpt

MOST people have never heard about the 1858 murder trial of William "Duff" Armstrong. But everyone knows Armstrong's defense attorney: Abraham Lincoln. Before he was elected the Sixteenth President of the United States, Lincoln had struggled to make a name for himself. As he told the jury, Mrs. Armstrong - the widowed mother of his client - had shown him kindness, providing shelter and clothes when he had none. Seeking to reciprocate the generosity when her boy found himself in some trouble, Lincoln volunteered for her son's defense without a fee.

Armstrong was charged with murder in the first degree. Prosecutors alleged that on the night of August 29, 1857, Armstrong beat James Metzger so severely that he died the next day. A fellow by the name of Allen, witness for the prosecution, testified that he witnessed the blow. How? By the light of the full moon. It was 10 o'clock p.m., he testified, and the moon shined brightly. The court adjourned for the day.

That night, Lincoln went to a corner drug store in Beardstown, Illinois, and purchased an almanac. The next day, he was prepared. The moon on that night, the almanac showed, did not shine until several hours after 10 p.m. The court took judicial notice. Shortly thereafter, the jury acquitted Armstrong.

The reason for telling the story of the "Almanac Trial" is two-fold. The first is that judicial notice is valuable. Without it, Lincoln would have had to lay a foundation for introduction of testimonial evidence showing that the moon did not shine at the time Allen said, cross-examine Allen to impeach the witness or in the hopes he recanted, or offer documentary evidence and have it authenticated.

The second reason for the story is that by using judicial notice, Lincoln won the case. Once called the "deus ex machina of evidence," judicial notice provides a shortcut that is not only more efficient, but also more commanding than ordinary evidence. The jury was instructed to accept the fact that the moon did not shine until hours after midnight.

Judicial notice is one of the most underappreciated and frequently misunderstood doctrines of evidence, yet it remains a powerful tool for any trial attorney. Judicial notice can help establish important facts beyond dispute, and more significantly, help establish facts decisively. This article will discuss this important evidentiary doctrine, offer some helpful insights into successful application of judicial notice, and offer tips to avoid its misuse.

I.A Brief History

Judicial notice has long-standing roots. Based on the ancient adage manifesta non indigent probatione, or "what is known need not be proved," judicial notice is one of the oldest doctrines in common law history. Originally, judicial notice was a tool of convenience, used by trial judges with broad authority based on their own common knowledge.

Eventually, however, Federal Rule 201 and its state counterparts paved the way for judicial notice to focus less on the common knowledge of judges, and more on the source of the fact. This seemingly slight change has broadened the application of the rule, and, coupled with the technological revolution, opened the door to an infinite amount of noticeable material.

A.Early Common Law

Surprisingly, the earliest use of judicial notice does not come from the rules of evidence for use at trial. Instead, the first application of judicial notice was at the motion to dismiss stage. Early American courts took judicial notice of obvious facts that were omitted from a pleading to avoid having to dismiss a claim.1 Although judicial notice would soon become enshrined in the Federal Rules of Evidence and used during trials, it started as a simple means of convenience for the court. While the rule has evolved over the years, the importance of convenience has remained a constant, and judicial notice has developed into a tool to circumvent long and inefficient procedural hurdles in all stages of litigation. …

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