By Alice M. Plastoris, Esq.
The use of New Jersey’s Evidence Rule 201 often is overlooked and underutilized by many attorneys when trying cases. Yet, it is a valuable tool in admitting evidence without lengthy testimony or cumbersome presentation.
The rule allows judges to take judicial notice of facts and other admissible evidence, either sua sponte or at the request of a party to the litigation.
Once a judge takes judicial notice of a fact, prior testimony, admissible evidence, pleadings, (including complaints, answers, certifications and briefs), evidence admitted in another proceeding involving the same parties, and any judicial findings, rulings or orders, that information is considered evidence in that proceeding.
The rule allows the court to take judicial notice of laws from any state in the United States as well as other countries as well as ordinances, regulations, and determinations of all governmental subdivisions and agencies thereof.
Rule 201(b) allows judges to judicially notice facts including:
- Such specific facts and propositions of generalized knowledge as are so universally known that they cannot reasonably be the subject of dispute;
- Such facts as are so generally known or are of such common notoriety within the area pertinent to the event that they cannot reasonably be the subject of dispute;
- Specific facts and propositions of generalized knowledge which are capable of immediate determination by resort to sources whose accuracy cannot reasonably be questioned; and
- Records of the court in which the action is pending and of any other court of this state or federal court sitting for this state.
Judges may take judicial notice on their own motion. Judicial notice is mandatory, however, when a party requests it on notice to all other parties and the court is supplied with the necessary information.
In determining the propriety of taking judicial notice and the nature of the matter to be noticed, any source of relevant information may be consulted or used, whether or not furnished by a party, and the rules of evidence shall not apply, except Rule 403 or a valid claim on privilege.
In a civil proceeding, the court is required to instruct the jury to accept as conclusive any fact judicially noticed. In a criminal proceeding, the instruction to the jury is that jurors may, but are not required to, accept as conclusive any fact judicially noticed.
Not long ago I used Rule 201 (b)(4) in representing the plaintiff/victim seeking a final restraining order in a domestic violence case. During the trial, the defendant violated the temporary restraining order by contacting the plaintiff with offensive and threatening language. The defendant was arrested at the courthouse the next day and a criminal contempt hearing on the violation of the temporary restraining order was scheduled. I requested the judge take judicial notice of the arrest warrant, the contempt complaint, the docket number and the hearing date of the contempt proceeding.
I also requested that the judge take judicial notice of the domestic violence complaint and temporary restraining order and the amended temporary restraining order under the rule. Both requests were granted.
Since a court had not yet adjudicated the contempt charge against the defendant, my client testified as to the events and facts substantiating the violation of the temporary restraining order.
By obtaining judicial notice, in the final restraining order case, I protected the victim, by eliminating the need for her to testify a second time. When the prosecutor in the criminal contempt case requests judicial notice of the final restraining order against the defendant, all of the plaintiff’s testimony and the judge’s findings, will be part of that judicial notice as the criminal case involves the same parties.
The New Jersey courts have also held that the following is judicially noticeable:
Pursuant to Rule of Evidence 201(b)(4), the court has also taken judicial notice of the police-citizen encounter contained in the State’s brief on appeal in the case before the court. See State v. Maryland. The court in State v. Marshall, granted the defendant’s motion to take judicial notice of briefs filed in other capital appeals.
However, there are limits to the judicial notice rule. In State v. J.T., the Appellate Division said that a trial judge in a harassment trial could not rely for proof of one of the elements of the offense (“purpose to harass”) on the trial court’s recollection of prior proceedings between the complainant and the defendant. In addition, the provisions of Rule 201 should not be used to circumvent the rule against hearsay. In RWB Newton Association v. Gunn, the court held that it was improper for the trial judge to base his judicial notice ruling on the contents of certifications he found in a court file pertaining to a different, but related, action. That decision said that it would be acceptable to take judicial notice that the certifications were filed and even acceptable to take judicial notice of what was alleged in the certifications if the fact that the allegations had been made was itself relevant. But a court clearly may not take judicial notice of the truth of the contents of certifications simply because they have become part of a court record. It has also been criticized when a trial judge accepted at face value representations concerning affidavits and other documentary submissions that were not before the judge, but which had been produced in unrelated federal litigation. See Diamond Shamrock Chemicals v. Aetna. It was also held to have been improper for a worker’s compensation judge to have relied in his decision on testimony in other cases that he had presided over. See Laffey v. City of Jersey City.
Trial lawyers need to master the rules of evidence and use all the tools in the trial toolbox. Judicial notice is just one of them.
Alice M. Plastoris, Esq. is a co-chair of the NJAJ Matrimonial Section and a former member of the NJAJ Board of Governors. She has offices in Morristown, NJ and represents clients throughout New Jersey. She can be reached at aplastoris@plastoris.com or (973) 538-7070.
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