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.

Advisory Committee Historical Note

Effective July 1, 2016, the Rule was amended as part of the general

restyling of the Evidence Rules.

Effective June 16, 2016, the “Comment” was retitled “Advisory Committee

Note.”

Advisory Committee Note

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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.

Advisory Committee Historical Note

Effective July 1, 2016, the Rule was amended as part of the general

restyling of the Evidence Rules.

Effective June 16, 2016, the “Comment” was retitled “Advisory Committee

Note.”

Advisory Committee Note

The language of Rule 201 has been amended as part of the restyling of the

Evidence Rules to make them more easily understood and to make style and

terminology consistent throughout the rules. Subdivision (a) has been reworded to

underscore that Rule 201 does not cover the entire field of judicial notice. Rather,

it governs only judicial notice of “adjudicative” facts – the facts of the particular

case – not “legislative” facts. No Rule deals with judicial notice of legislative

facts. The Rule has also been restructured, combining two subdivisions and

reordering others. These changes are intended to be stylistic only. There is no

intent to change any result in any ruling on evidence admissibility.

(a) The entire codification of the law of judicial notice is in Rule 201.

Professor Kenneth Davis, in his now famous article, “An Approach to Problems of

Evidence in the Administrative Process,” 65 Harv. L. Rev. 364 (1942), divided

judicial notice into two parts, adjudicative and legislative. Adjudicative facts are

easily understood; they are specific to the litigation. Legislative facts, on the other

hand, are more amorphous. To determine legislative facts one must look at the

public policy or policies involved in judge-made law. Despite the existence of two

types of judicial notice, Rule 201 only governs judicial notice of adjudicative

facts. A court’s application of judicial notice of legislative facts is more an

inherent part of the judicial process rather than an evidentiary matter.

hand, are more amorphous. To determine legislative facts one must look at the

public policy or policies involved in judge-made law. Despite the existence of two

types of judicial notice, Rule 201 only governs judicial notice of adjudicative

facts. A court’s application of judicial notice of legislative facts is more an

inherent part of the judicial process rather than an evidentiary matter.

(b) Subdivision (b) provides that only certain kinds of facts may be

susceptible to judicial notice. The first kind of fact that can be judicially noticed is

one that is commonly known in the jurisdiction in which the court sits. The judge

himself need not know the fact. Indeed, it is altogether irrelevant whether he does.

The test is whether the fact is common knowledge in the area. The use of judicial

notice for matters of common knowledge has long been practiced in Mississippi.

On what street the local department store is located is the kind of commonly

known fact of which a court may take judicial notice. The second kind of fact

susceptible to judicial notice is one readily ascertainable. This would include such

items as maps, census data, mortality tables, dates and time, and history. See Ellis

and Williams, Miss. Evid. § 12-2 and the cases cited therein. See also Nicketta v.

National Tea Co., 338 Ill. App. 159, 87 N.E.2d 30 (1949), and Walls v. Mississippi

State Bar, 437 So. 2d 30, 33 (Miss. 1983).

Subdivision (b) does not allow judicial notice to be used when the fact is a

dubious one or one in controversy.

(c) Subdivision (c) and (d) govern the use of the judicial discretion. The

judge has discretion to take judicial notice of adjudicative facts, regardless of

whether a party has requested him to do so. The basis for the exercise of such

discretion is to expedite matters. On occasion a judge may be required to take

judicial notice. If a party makes a request and supplies the judge with the

necessary information, he must take judicial notice.

judicial discretion. The

judge has discretion to take judicial notice of adjudicative facts, regardless of

whether a party has requested him to do so. The basis for the exercise of such

discretion is to expedite matters. On occasion a judge may be required to take

judicial notice. If a party makes a request and supplies the judge with the

necessary information, he must take judicial notice.

(e) Subdivision (e) provides for a procedure not formerly required in

Mississippi. By providing an opportunity for a hearing on the matter of judicial

notice, the rule is a safeguard for fairness. If a party requests an opportunity to be

heard, under the rule he must be granted that opportunity. Because frequently there

is no advance notice that judicial notice will be taken, a party has a right to be

heard even after judicial notice has been taken.

(f) Subdivision (f) contains an important deviation from pre-rule

Mississippi practice. The common law rule in Mississippi had been that evidence

admitted pursuant to judicial notice was not conclusive. Subdivision (f), insofar as

it concerns criminal cases, is not inconsistent with that rule. However, in civil

cases under subdivision (f) the jury must accept such evidence as conclusive. The

jury in criminal cases may choose to accept the evidence or reject it. This avoids

any possible allegation that the defendant’s right to a jury trial under the Sixth

Amendment was violated.

[“Advisory Committee Note” substituted for “Comment,” effective June 16, 2016;

amended July 1, 2016, to note restyling.]

ARTICLE III. PRESUMPTIONS IN CIVIL CASES