CORE CRIMINAL LAW SUBJECTS: Evidence: Judicial Notice

2013 (September Term)

United States v. Paul, 73 M.J. 274 (judicial notice is regulated by MREs 201 and 202; MRE 201 governs judicial notice of an adjudicative fact only, not a legislative fact, and MRE 202 governs judicial notice of law; under MRE 201, a military judge may judicially notice a fact that is not subject to reasonable dispute because it (1) is generally known universally, locally, or in the area pertinent to the event, or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned; MRE 202 governs judicial notice of law; under MRE 202, a military judge may take judicial notice of domestic law). 

(an appellate court can take judicial notice of law and fact under certain circumstances; MRE 201 mentions only the military judge when outlining the proper procedure for taking judicial notice; however, case law is well settled that both military and civilian appellate courts may take judicial notice of indisputable facts). 

(the problem in this case is that the CCA took the extraordinary step of taking judicial notice of an element not proven by the government; the CCA justified this step, in part, by noting that it was taking judicial notice of a question of domestic law and not an adjudicative fact; however, this analysis fails for two reasons; first, whether characterized as a question of fact or law, MRE 201 would require that the appellant first have notice and an opportunity to be heard; on adjudicative facts, this is always the case; however, as MRE 202 states, it is also the case if a domestic law is a fact that is of consequence to the determination of the action; second, and related, the CCA took judicial notice of an element of the offense). 

(unless an accused is informed at the trial of the facts of which the court is taking judicial notice, not only does he not know upon what evidence he is being convicted, but, in addition, he is deprived of any opportunity to challenge the deductions drawn from such notice or to dispute the notoriety or truth of the facts allegedly relied upon). 

(when judicial notice of an element is taken outside the context of the trial itself, an accused is denied his due process right to confront or challenge an essential fact establishing an element, whether or not the fact is indisputable). 

(where the matter to be judicially noticed is essential to the case in order for the act to become criminal, it must be reflected in the record of trial and cannot be later assumed). 

(while a CCA might generally take judicial notice of an undisputed fact or question of domestic law that is important to the resolution of an appellate issue, it cannot take judicial notice of facts necessary to establish an element of the offense).  

(in this case, the CCA erred in taking judicial notice of the fact that ecstasy was a Schedule I controlled substance; the CCA cannot take judicial notice of a fact necessary to establish an element of the offense that the government failed to establish at trial). 



United States v. Erickson, 61 M.J. 230 (this Court takes judicial notice of the fact that a number of states have recognized the harmful effects of the inhalation of nitrous oxide by criminalizing it).



United States v. Green, 55 MJ 76 (if expert testimony has an established scientific, technical, legal, judicial, or evidentiary foundation regarding reliability and relevance, it may be appropriate to take judicial notice under Mil. R. Evid. 201 without further litigation).


United States v. Ayers, 54 MJ 85 (a general regulation is a proper subject of judicial notice).

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