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  • Writer's pictureBrian Foley

Conroe Criminal Defense Lawyer - Rules of Evidence Series RULE 201

Rule 201 is the rule of Judicial Notice. Judicial notice is the concept that a fact is so readily known or easily established that the Judge should just be able to confirm the truth of it and remove it from the battle of the trial. For example a court could take judicial notice of geographical information like the city of Conroe is within Montgomery County, Texas. A court can also take notice of the population of a county. Graff v. Whittle, 947 S.W.2d 629 (Tex. App. - Texarkana 1997, writ denied). These are examples of "adjudicative facts" meaning things that need to be proved based on the circumstances of the trial that is currently taking place.

There are also, "legislative facts." “We are authorized to take judicial notice of any scientific fact which 'is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.'” Emerson v. State, 880 S.W.2d 759, 764 (Tex. Crim. App. 1994).

In Emerson the Court of Criminal Appeals took judicial notice of the theory underlying the HGN (DWI eye test) test as legislative facts. Id. "Legislative facts are those which help the tribunal to determine the content of law and policy and to exercise its judgment or discretion in determining what course of action to take. Legislative facts are ordinarily general and do not concern [only] the parties." Emerson v. State, 880 S.W.2d 759, 764 (Tex. Crim. App. 1994). In Holmes v. State, the Waco Court of Appeals approved judicial notice of the validity and reliability of blood-spatter analysis. Holmes, 135 S.W.3d 178, 195 (Tex. App. - Waco 2004, no. pet.).

However, if a court takes judicial notice under Rule 201 it cannot take judicial notice for "legislative facts." It may only take judicial notice of "adjudicative facts." Therefore if a court takes judicial notice of the HGN's underlying theory as valid and charges the jury that it may accept this as conclusive, then the court will be committing reversible error. O'Connell v. State, 17 S.W.3d 746 (Tex. App. - Austin 2000, no pet.).

It doesn't matter when you ask the court (or when the court decides on its own) to take judicial notice of a fact. It can be "at any time during the proceeding." I would say this basically means from prior to the beginning of voir dire up until the end of closing arguments. The judge is required to allow you to be heard on the matter and in a criminal case the judge will submit a jury instruction that says the jury may or may not accept the fact that has been judicially noticed as conclusive. In a civil case the jury MUST accept the fact as conclusive. If you wait until the end of closing arguments you might have to change the jury charge and re-read it to them.

If judicial notice comes up in a criminal trial it is likely because the prosecutor forgot to ask a witness the question, "What county did this happen in?" When defense asks for a directed verdict the prosecution can then request the court take judicial notice that the roads near the crime scene or address of the crime scene (which were stated on the record) are found within the jurisdiction of the county.

Rule 201. Judicial Notice of Adjudicative Facts

(a) Scope. This rule 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) Taking Notice. The court:

(1) may take judicial notice on its own; or

(2) must take judicial notice if a party requests it and the court is supplied with the necessary information.

(d) Timing. The court may take judicial notice at any stage of the proceeding.

(e) 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.

(f) 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.

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