Judicial Notice — Florida and Federal Court

The Evidence Code · Topic Guide

§§ 90.201–90.207, Fla. Stat. · Fed. R. Evid. 201 · Phillips, Hunt & Walker

Judicial notice is the shortcut around the rules of evidence for facts that can’t reasonably be disputed. Instead of calling a witness to prove that Thanksgiving fell on a Thursday, the court simply accepts the fact and moves on. Used well, it saves days of trial time. Used badly, it becomes a preserved appellate error.

Florida devotes seven statutory sections to judicial notice; the federal system fits the same subject in a single rule.

Adjudicative facts vs. legislative facts

Both rules govern only adjudicative facts — facts about the parties and events of this case. They do not govern legislative facts, meaning background facts a court uses to shape a rule of law.

Federal — a single rule

Fed. R. Evid. 201:

Kinds of facts (201(b)): facts not subject to reasonable dispute because they are (1) 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.
Taking notice (201(c)): the court may take judicial notice on its own; the court must take judicial notice if a party requests it and supplies the necessary information.
Timing (201(d)): the court may take judicial notice at any stage of the proceeding.
Opportunity to be heard (201(e)): on timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact.
Jury instruction (201(f)): in a civil case, the court instructs the jury to accept the noticed fact as conclusive; in a criminal case, the court instructs that the jury may but is not required to accept it.

Florida — seven statutes, more detailed

What must be noticed — § 90.201

§ 90.201, Fla. Stat. — decisional, constitutional, and public statutory law of the United States and Florida; certain resolutions and formal enactments of Congress and the Florida Legislature; and the rules of court of the United States Supreme Court and the Florida Supreme Court. Compulsory judicial notice — no request needed.

What may be noticed — § 90.202

§ 90.202, Fla. Stat. catalogs matters a court may notice on request, including laws of other states and foreign nations, records of the courts, facts generally known in the community, facts readily verifiable from unquestionable sources, official actions of legislative/executive/judicial departments, and the laws of nature.

Web mapping tools — § 90.2035

§ 90.2035, Fla. Stat. — judicial notice of information taken from web mapping services, global satellite imaging sites, and Internet mapping tools. No federal counterpart section; federal courts reach similar results under FRE 201(b)(2).

Compulsory notice on request — § 90.203

§ 90.203, Fla. Stat. — a court must take judicial notice of any § 90.202 matter when a party requests it, gives adverse parties timely written notice, and furnishes the court with sufficient information.

Procedure and opportunity to be heard — § 90.204

§ 90.204, Fla. Stat. — reasonable opportunity to present information relevant to the propriety of taking judicial notice and to the nature of the matter to be noticed.

Denial — § 90.205

§ 90.205, Fla. Stat. — the court must inform the requesting party at the earliest practicable time and indicate the reason for denial.

Instructing the jury — § 90.206

§ 90.206, Fla. Stat. — mirrors the federal civil/criminal distinction.

Subsequent proceedings — § 90.207

§ 90.207, Fla. Stat. — a court’s failure or refusal to take judicial notice does not preclude a later court from doing so.

Common uses in practice

Statutes, ordinances, and administrative rules — proof of law rather than fact.
Court records of prior proceedings.
Public records of birth, death, marriage, and property.
Geographic facts — distances, jurisdictional boundaries, satellite imagery.
Times of sunrise, sunset, phases of the moon, tides, and days of the week.
Widely accepted scientific and mathematical principles.

Practical points from the trial bar

Do the request in writing, before trial when possible.
Supply the source. Never expect the judge to look it up.
Watch the civil–criminal jury instruction split. In a criminal case, judicial notice does not conclusively bind the jury.
Object to sua sponte notice at the earliest opportunity.
Renew a denied request later. Florida § 90.207 and federal 201(d) both permit renewal.