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. Upon request, the court must instruct the jury to

accept the noticed fact as conclusive.

Comment

This rule largely tracks F.R.E. 201 except for 201(f) (see discussion below).

This article is limited to adjudicative facts. In the interests of uniformity, the

Committee rejected a proposal that this rule be expanded to cover legislative

facts. See Davis, “Judicial Notice,” reprinted in Weinstein, pp. 201-22;

McCormick §§ 328, 331; F.R.E. Advisory Committee’s note to article II.

The Committee recognized that courts sometimes judicially recognize

legislative facts without giving the parties an opportunity to comment on the

facts proposed to be judicially noticed. While recognizing that this may

sometimes be unfair, the Committee did not think it should address this

problem at this time.

Rule 201(f) largely tracks F.R.E. 201(f) except that the words “upon request”

were added at the beginning and the last sentence of F.R.E. 201(f) was deleted.

The purpose of the changes from the F.R.E

portunity to comment on the

facts proposed to be judicially noticed. While recognizing that this may

sometimes be unfair, the Committee did not think it should address this

problem at this time.

Rule 201(f) largely tracks F.R.E. 201(f) except that the words “upon request”

were added at the beginning and the last sentence of F.R.E. 201(f) was deleted.

The purpose of the changes from the F.R.E. is to make clear that a request for

a jury instruction is required before reversible error is normally present and to

eliminate any distinction between criminal and civil cases.

Article IV, § 19 of the Delaware Constitution states: “Judges shall not charge

juries with respect to matters of fact, but may state the questions of fact in

issue and declare the law.”

The Committee agreed that once a fact is judicially noticed, no evidence to

rebut that fact shall be permitted, but an objection to the taking of judicial

notice of a fact should be considered by the judge before he agrees to take

judicial notice.

See Barks v. Herzberg, 58 Del. 162, 206 A.2d 507 (Supr. 1965), holding that

if a judge inquires into facts outside the record he should do so only with full

notice to counsel with opportunity to comment.

For prior Delaware cases illustrating the law covered by Rule 201(b), see:

Judicial notice not taken: Wolf v. Keagy, Del. Super., 136 A. 520 (1927);

Charles Tire Co. v. Owens, Del. Super., 186 A. 737 (1936); Bigger v.

Unemployment Comp. Comm’n, Del. Super., 46 A.2d 137 (1946); Weinberg

v. Hartman, Del. Super., 65 A.2d 805 (1949); Jackson v. Hearn Bros., Del.

Supr., 212 A.2d 726 (1965); Hutchins v. State, Del. Supr., 153 A.2d 204

he law covered by Rule 201(b), see:

Judicial notice not taken: Wolf v. Keagy, Del. Super., 136 A. 520 (1927);

Charles Tire Co. v. Owens, Del. Super., 186 A. 737 (1936); Bigger v.

Unemployment Comp. Comm’n, Del. Super., 46 A.2d 137 (1946); Weinberg

v. Hartman, Del. Super., 65 A.2d 805 (1949); Jackson v. Hearn Bros., Del.

Supr., 212 A.2d 726 (1965); Hutchins v. State, Del. Supr., 153 A.2d 204

(1959); Fahey v. Sayer, Del. Supr., 106 A.2d 513 (1954); Hunter v. Quality

Homes, Del. Super., 68 A.2d 620 (1949); LeGates v. Ennis, Del. Super., 180

A. 325 (1935); Downs v. Commissioners of Town of Smyrna, Del. Super.,

45 A. 717 (1899); In re Fusco, Del. Orph., 127 A.2d 468 (1956); State v.

Tootle, Del. Gen. Sess., 128 A. 484 (1837). See also McGraw v. Corrin, Del.

Supr., 303 A.2d 641 (1973); Opinion of the Justices, Del. Supr., 216 A.2d

668 (1966).

D.R.E. 201 was amended in 2017 in response to the 2011 restyling of the

Federal Rules of Evidence. The amendment is intended to be stylistic only.

The pre-2017 “Comment” to D.R.E. 201 was revised only as necessary to

reflect the 2017 amendments. There is no intent to change any result in

ruling on evidence admissibility.