Evidence Without Judicial Notice

<span>American evidence law has existed for five decades as a rules-based system, which is thought to promote uniformity and predictability. But even in the era of evidence rules, judicial notice has stubbornly refused to be pinned down. Though it has a place (Rule 201), its contours remain hazy. If the success of a given rule is measured by whether it can be applied to facts to reliably produce a predictable outcome, judicial notice is evidence law’s least rule-like rule. Through this haze emerges only a narrow consensus of its proper coverage: mainly, for indisputable almanac-style facts. Because this accepted coverage is so narrow, and often duplicative with common sense, judicial notice, which was once a powerful mechanism of American trial factfinding, is today a backwater, rarely shaping litigation outcomes, and drawing scant interest from appellate courts or evidence scholars.</span> <div> <br> </div> <div> The Article identifies a tension within Rule 201 as the cause of its haze. The rule itself was written as a nod to Wigmore's views in an era more tolerant of fact-finding shortcute. The advisory committee notes' emphasis on "indisputability" was a nod to Professor Morgan's views in a later era less toleranat of judicial intrusion into jury factfinding. But the Wigmore and Morgan visions are in tension, not complimentary. Hence the modern confusion over what judicial notice is truly intended to cover.&nbsp; <br> <div> <span><br></span> </div> <div> <span>Judicial notice’s modern unimportance coincides with the oblivion of contested criminal trials, especially for poor defendants. I am interested in exploring whether judicial notice’s resuscitation could give criminal defendants tools to fight back in a system that Steven Bright calls “Fast Food Justice.”</span><span>&nbsp;Trials are a competition between two parties over facts. But having better facts than the other side is only half the battle: those facts must be proved by competent evidence. When judicial notice is not a mainstream mechanism of proof, parties shoulder the burden of calling witnesses to marshal facts in their favor. This is often not a fair fight. While prosecutors enjoy broad powers to call law enforcement and crime lab witnesses (for whom testifying in court is part of their job), criminal defendants often have limited practical ability to summon witnesses, and powerful disincentives to testify in testifying in their own defense. Judicial notice thus has some potential utility.&nbsp;</span> </div> </div>