INTRICACIES IN TAKING

JUDICIAL NOTICE OF
SCIENTIFIC FACTS

The doctrine of judicial notice allows the adjudication of facts

without formal evidentiary requirements. If a fact is judicially
noticed it is presumed to be conclusive, which means the fact
need not to be proved. The courts often take notice of a fact
that is familiar and notorious. However, there are intricacies in
deciding whether a particular fact is open to judicial notice
since there are certain facts which concerning science, the
personal knowledge of judges, public record of a court of law
etc. Similarly, the history of the doctrine of judicial notice
shows that there is confusion regarding the conclusiveness of
the fact once judicially noticed by a superior court of law. This
article explores the doctrine of judicial notice, in particular its
application on scientific facts, and also attempts to resolve
some of the confusion connected with its effect on the trial of
facts. The article also argues that it is not wise to consider the
issues surrounding the application and effect of the doctrine of
judicial notice in a perplexed manner and argues that there is
no need to create a rule of law in considering judicially noticed
facts as absolute proof; and instead reserve it for the
application of judicial discretion whenever necessary,
subjecting it to the review mechanism of the appellate courts.

Professor & Associate Dean, School of Law, NMIMS University, Bangalore

Campus 560 083, Mob: 9003163464.
 INTRODUCTION

It is the fundamental principle of the law of evidence that all facts that come before
the court of law should be subjected to the trial process. Two purposes are achieved
through the compliance of this principle: the elicitation of truth in it and giving
opportunity to the opposite side to verify it through cross examination. However,
there are situations in which court may avoid the evaluation of facts before

be proved formally as in normal cases. Thayer expresses these facts as facts

1 This has been historically established

through the maxim manifesta non indigent probatione (which is known need not
be proved).2 The law is giving discretion to the fact-finder for considering certain
facts as granted in order to avoid the wastage of time due to formal mode of fact
determination.
considered the doctrine of judicia
3

chapter itself makes it clear that the jurists intended judicially noticed facts to be
without requiring the formal evaluation of evidence. In
Article 58, Stephen has stated that it is the duty of the judges to take judicial
notice of certain facts.4 However, as explained by Bentham, the notorious fact
should be pronounced as judicially noticed at the instance of either party and after
giving the opposite side to deny the notoriety and an opportunity to call for proof.5
The language of the writings of evidence scholars and legislation from some
jurisdictions make it clear that the court may take judicial notice of certain facts
through the initiative of either party or sua sponte. The purpose of this article is
to point out certain quandaries in taking or following judicial notice without proof.

I. JUDICIAL NOTICE A DOCTRINAL ANALYSIS

The observation of jurists and legislation show us that two types of facts are open
to judicial notice. Thayer classifies these facts as the things of which a judicial
6 Some facts are

expressly provided in the legislation itself, which are closely related to the affairs
of state, customary principles, usages in business etc. The court should take notice
of such facts without any proof. On the other hand, some others give discretion to

1 2 JAMES B. THAYER, PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON LAW 277 (1898).
2 Id. See also Murl A. Larkin, Judicial Notice, 20 HOUS. L. REV. 107 (1983).
3 JAMES FITZJAMES STEPHEN, A DIGEST OF THE LAW OF EVIDENCE 117 (4th English edn, 1887).
4 Id. at 117.
5 See THAYER, supra note 1,at 279 (If there is any dispute about the validity of such facts, court
may allow the party to rebut the fact and cross-examine the witness).
6 HARV. L. REV. 285, 302 (1890).
the judge and he may take notice either suo moto or by the reference of the parties.
Stephen drafted in a different way for different jurisdictions; the types of facts of
which court should and may take judicial notice. For e.g., in his fourth English
edition (combined for England and America), for America, Stephen mentions that

excluding for English law. Similarly, different from other jurisdictions, in the
Indian Evidence Act, 1872, Stephen broadly included all matters of public history,
literature and science or art.7 No matter how, the courts are by and large noticing
many scientific facts without formally proving their theoretical or methodological
underpinnings. These facts are beyond controversy since their notoriousness has
been established beyond any reasonable doubt. Such facts are commonly known
to all. As rightly mentioned by Prof. K.C. Davis, judicial notice should be a matter
of convenience, subject to requirements of procedural fairness.8

II. THE RULES SANCTIONING JUDICIAL NOTICE

In the United States, Rule 201 of the Federal Rules of Evidence exclusively deals
with the judicial notice of facts.9 Rule 201 permits the courts to take judicial notice
of a fact only if that fact belongs to the category of adjudicative facts and not
legislative facts. It also insists that such facts should not be in any way subject to
reasonable dispute. Here the term
not remain any reasonable doubt about its accuracy. This rule allows the court to

adily determined with the help of reliable sources,

which cannot reasonably be questioned. The later one is wider than the former
since it empowers the court to notice any fact without any limits of territorial
application. However, as a rule of practice, the accuracy of the source from which
the existence of a fact has been gathered shall also beyond any reasonable doubt.
At any time of the proceeding, the court may take judicial notice either suo moto
or by the request of the party, if he is ready to supply necessary information. As a
safeguard mechanism, the Rule states that if a party requests, he is entitled to be
heard regarding the propriety and the nature of the fact to be noticed. In criminal
cases, the jury may either admit or reject the fact judicially noticed; however, in
civil cases it is mandatory that the jury should consider the fact noticed as
conclusive.10

7 See The Indian Evidence Act 1872, s. 57.

8 K.C. DAVIS, SYSTEM OF JUDICIAL NOTICE BASED ON FAIRNESS AND CONVENIENCE , in
Perspectives of Law, 94 (1964).
9 Rule 201, United States Federal Rules of Evidence.
10 See 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
In India, ss.56 and 57 of the Indian Evidence Act, 1872 cover the doctrine of
judicial notice. As per section 56, if any fact has been judicially noticed by the
court, such fact need not be proved. Section 57 provides in particular about the
facts which court shall take judicial notice and in the last part of the section it is
public history,
literature, science or art, the Court may report for its aid to appropriate books or

judicial notice of a fact unless and until he produces any authority to enable it to
do so.11

Like the U.S. and India, in England, it is very difficult to trace an analogous
provision either in Police and Criminal Evidence Act, 1984 or Civil Evidence Act,
1995. Some juristic writings show that the doctrine of judicial notice in England
is mixed with doctrine of common knowledge of the judges.12 Cross and Tapper
classify the taking of judicial notice into two: facts judicially noticed without
inquiry and with inquiry. This depends on the notoriousness of the fact.13

III. SCIENTIFIC FACTS WHICH ARE OPEN TO JUDICIAL NOTICE

As far as judicial notice of scientific facts are concerned, it has been declared that
only the well-established propositions which are less likely to be challenged and
firmly established as to have attained the status of scientific law like the laws of
thermodynamics are subject to judicial notice.14 As interpreted and clarified in
Daubert v. Merrell Dow Pharmaceuticals, Inc.,15 scientific principles are those
hypotheses tested by the scientific method. As rightly stated by some of the
prominent evidence scholars like McCormick,16 the scientific principles which
were accepted by the relevant scientific community can be considered while taking
judicial notice; however, the judge may use his judicial discretion to explore the
scientific principle in question so as to find out its standing against the test of
falsification.

IV. PRECEDENTIAL OVERVIEW REGARDING TAKING JUDICIAL

NOTICE OF SCIENTIFIC FACTS

king
judicial notice since it has been generally accepted that the scientific process is not
a onetime one and a particular proposition will be continuously observed, retest

11 The Indian Evidence Act 1872, s 57.

12 See COLIN TAPPER, CROSS & TAPPER ON EVIDENCE 89 (2007).
13 Id. at 82-83.
14 See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579.
15 Id. at 599.
16 JOHN W. STRONG, MCCORMICK ON EVIDENCE 394 (4th ed. 1992).
and repeat several times despite its widespread acceptance in the community.
However, courts always consider the broad scientific propositions like
thermodynamics that achieved irrefutable track record. For e.g., in a seminal
decision Daubert v Merrell Dow Pharmaceuticals, Inc., (hereinafter Daubert)
United States Supreme Court has obse -established propositions are
less likely to be challenged than those that are novel, and they are more handily
17 In the United States, courts have showed reluctance in taking judicial

notice of a scientific technique whose fundamental premises were not suitable for
it. Here it is germane to note that judicial notice is a matter of admissibility of the
scientific proposition and not its weight.

In the United States, prior to Daubert decision, courts were following the
Frye v United States.18 The

by the court:

Just when a scientific principle or discovery crosses the line between the
experimental and demonstrable stages is difficult to define. Somewhere in
this twilight zone the evidential force of the principle must be recognized,
and while courts will go a long way in admitting expert testimony deduced
from a well-recognized scientific principle or discovery, the thing from which
the deduction is made must be sufficiently established to have gained general
acceptance in the particular field in which it belongs.19

Following this, the courts in the United States were admitting the evidence
deduced from a scientific principle or discovery, if the thing from which the
deduction made was generally accepted in the particular field in which it belongs.
The decisions show that courts were taking judicial notice of a particular scientific
proposition, if it was accepted by the scientific community in which that
proposition belongs. However, the experience shows that courts erred in taking
notice of certain scientific propositions. For e.g., in People v Castro,20 the New York
Supreme Court while considering the admissibility of DNA identification evidence
advanced a three-prong test. Instead of scrutinizing the validity of the basic

since every individual except identi

court considered the scientific background of DNA and its application in
identifying individuals.21 Even though court has framed its first-prong analysis in
a moderately proper manner, it failed to evaluate the ultimate scientific

17 125 L Ed 2d 469, 482 (1993).

18 293 F 1013 (DC Cir) (1923).
19 Id. 1014.
20 545 NYS 2d, 985 (1989).
21 Id. 988-989.
proposition on which the entire technique is based. Courts first-prong is as follows:

supports the conclusion that DNA forensic testing can produce reliabl
Without evaluating the scientific standing of the basic premise, court took notice

It is submitted that one important thing to be kept in mind is that

22

all scientific theories will be based on a scientific premise. Without properly

evaluating the scientific premise, it is inadequate in attributing some value to the
theory. Similarly, other than a major premise, almost all scientific theories will be
based on certain minor premises. Therefore, the court has to check the validity of
all minor premises which has the nexus with the major premise.

In the United States, Rule 201 of the Federal Rules of Evidence is very elaborative
and if the fact to be judicially noticed is not known within the territorial
jurisdiction of the court or if there is any evidence to disprove the scientific
proposition, courts were hesitant to take notice. Thus in Hardy v Johns-Manville
Sales Corp.,23 court refused to take judicial notice of a scientific proposition that

V. JUDICIAL NOTICE OF THE RELIABILITY OF A TECHNIQUE

DISTINGUISHED FROM ITS APPLICATION

No court shall take judicial notice of a technique with regard to its application in
the case at hand. It should be based on the evidence that the technique of which
the court took notice has been applied properly in the context. The reliability of
scientific evidence in a particular case depends on the way in which the evidence
was collected, processed, and interpreted by scientific personnel. It also depends
on the quality and quantity of the evidence obtained for analysis. To determine
these factors, the court has to conduct a pre-trial hearing, especially in
determining the chain of custody. However, the court can also take judicial notice
with regard to a scientific proposition and the methodology related to it in
obtaining the results. In a particular jurisdiction, the court can even take judicial
notice of the techniques employed by a scientific institution. However, this should
be taken only after considering the validation studies conducted by the concerned

22 The pertinent thing to be noted in this case is that court took notice about the validity of the

underlying DNA typing. Indeed, this theory is well accepted that its accuracy is unlikely even to
be raised as an issue in hearings so on the admissibility of the new tests * * * the theory has been
repeatedly put to the test and has successfully predicted subsequent observations. Thompson
VA .
L. REV. 45, 60-61 (1989).
23 (1982) 681 F2d 334, 347-48 (5th Cir).
institution regarding such techniques. In United States v Martinez24, the court
considered the extent of admissibility of DNA evidence in a criminal case. After
having a thorough examination of the theoretical background of DNA evidence,
the court considered its admissibility and referred to a previous case25 in which
judges judicially noticed the general theory underlying the DNA fingerprinting as
well as the techniques employed by the FBI. The court rightly observed that

that expert testimony concerning DNA profiling is automatically admissible under

Daubert. A number of courts have required that the trial court further inquire
into whether the expert properly performed the techniques involved in creating
udicial
notice of a scientific technique does not cover the reliability of the application of
that technique in the case at hand, but only with regard to the reliability of the
scientific proposition and methodology based on that technique.

VI. APPLICATION OF JUDICIAL PRECEDENTS IN TAKING JUDICIAL

NOTICE OF A SCIENTIFIC FACT

It is unsafe to take judicial notice of scientific facts which have been judicially
noticed by another court. It is an established rule that courts can admit or exclude
the evidence without reinventing the wheel every time. Court may require the
parties to put on full demonstrations of the validity or invalidity of methods or
techniques that have been scrutinized well enough in prior decisions to warrant
taking judicial notice of their status. The courts can take judicial notice only if the
general scientific propositions had already been noticed in the former cases.
However, the court in subsequent cases should be vigilant about the
appropriateness in accepting the scientific facts already noticed since there should
not be any dissimilarity in the theory or methodology of the scientific facts already
noticed from the present one.

In the United States, it is usual practice that the court may consider the judicial
precedents before taking judicial notice of a scientific fact. The courts are reluctant
to take notice of a scientific fact, if the issue is based on it is appearing for the first
time.26 In the case of Californian case People v Smith,27 the Court of Appeal of
California rejected the argument made by the appellant challenging the
appropriateness in admitting the scientific evidence based on electrophoretic

24 (1993) 3 F3d 1191 (8th Cir).

25 United States v. Jakobetz, 955 (2nd Cir.) F2d 786, 799-800 (1992).
26 For e.g., see People v. Eyler, 133 Ill 2d, 173 (1989) (holding that where the admission of
testimony on the technique presented an issue of first impression, the technique's reliability is
not a proper subject of judicial notice).
27 People v. Smith, 215 Cal App 3d, 19 (1989).
typing of dried blood tests by the Superior Court. The appellant argued that
Superior Court had admitted the scientific evidence on the basis of judicial notice
without conducting a full-fledged evaluation under Kelly-Frye standard.28 The
Court of Appeal held that the lower court had rightly decided to approve the
precedents in other cases regarding the reliability of the electrophoretic typing of
dried blood tests since the court had given reasonable opportunity to the appellant
for challenging the propriety of the earlier findings.29 Court of Appeal has quoted
with approval of a statement made by the Supreme Court of California in People
v Kelly:

technique, and that decision is affirmed on appeal by a published appellate

decision, the precedent so established may control subsequent trials, at least
until new evidence is presented reflecting a change in the attitude of the
30

Through this observation court has clarified the extent of the applicability of
judicial precedents in controlling trial courts in taking judicial notice of scientific
propositions. The precedents have no force if there is any change or if any new
evidence different from the one already accepted by the scientific community has
been introduced in the subsequent trial.

In the United States, it is well settled that judicial notice of scientific theories
means those which are well established and attained the status of scientific law.31
State v. Stoa32 is an authority on this particular area. In this case the scientific
reliability of the laser device used by the law enforcement wing for detecting the
speeding of the car driven by the accused was in issue. After conducting a thorough
discussion, court concluded that the lower court was right in determining that the
scientific principle and the application of such in the functioning of the radar
device was a proper subject for judicial notice. In this case, instead of conducting
a full-fledged evidence hearing, court determined the admissibility of the device
based on the precedents of the former cases in which the courts admitted the
scientific principle and the application of the principle for the particular purpose.

In England, a translucent observation has been made by Lord Bingham, CJ., and
Klevan, J., in Carter v. Eastbourne Borough Council,33 regarding the scope and
extent of taking judicial notice on the basis of personal knowledge of the judges.

28 Kelly-Frye standard means the standard formulated in two cases viz. People v. Kelly, 549 P2d,
1240 and Frye v. United States, 293 (D.C Cir.) F, 1013 (1923) for evaluating scientific evidence.
29 supra note 21, 25.
30 People v. Kelly, 549 P2d 1240, 1245 (1976).
31 Daubert v. Merrell Dow Pharmaceuticals, Inc., 125 L Ed 2d 469, 482 (1993).
32 State v. Stoa, 145 P 3d, 803 (2006).

33 Carter v. Eastbourne Borough Council, 2 PLR 60, (2000).

Citing Cross & Tapper on Evidence, court observed that judicial notice of a fact is
possible in three situations: (1) judicial notice without inquiry; (2) after inquiry
and (3) mandatory one under any of the statutes. In the case of without inquiry,
court specifically limited taking notice of facts on the basis of personal knowledge
of the judges. Endorsing the observation made by Lord Widgery, CJ., in Wetherall
v Harrison,34 court quoted:

t is not improper for a justice who has special knowledge of the

circumstances forming the background to a particular case to draw on that

would be quite wrong if the justice went on, as it were, to give evidence to
himself in contradiction of that which has been heard in court. He is not
there to give evidence to himself, still more he is not there to give evidence to
other justices; but that he can employ his basic knowledge in considering,
weighing up and assessing the evidence given before the court is I think
beyond doubt.

It is submitted that in case, court has rightly distinguished using

personal knowledge of judges for interpreting the evidence adduced before the
court from contributing anything new to the case at hand. The judges are not
expected to contribute anything from their personal knowledge as proof of the
relevant fact in issue unless they are testifying as witnesses. No fact should be
converted into proved one unless it is shown to both sides as a matter of their right
to contradict it.

However, in England, it is perceptible through judicial decisions that courts were

reluctant to admit expert testimony in certain situations in which the matter is

observation regarding this is visible in a landmark case R v Turner,35 wherein the

that the accused had killed his girlfriend as a result of an explosive outburst of
blind range from her side reasoning that it was a commonest of common

which afterwards became judicial precedent in various cases. However, in this

case court emphasized that the application of the rule is limited only for forming
Turners
case was evidence of an expert which could be used for proving the hypothetical
situation based on the factual background of the conduct of Turner while he
attacked her friend with a hammer. It is submitted that the Court of Appeal had
indirectly endorsed the [intuition] of the trial judge in contributing his experience
to [prove] or conclude that the appellant had committed the murder with a

34 Wetherall v. Harrison QB 773 1976).

35 R v. Turner 1 QB 834 (1975).
distressed mind. It is further submitted that the application of the rule in Turner
case is very limited since it is the discretion of the trial judge in each case, after
considering the factual situation to decide whether to admit or reject the evidence
offered by an expert on psychological matters. Therefore, no hard and fast rule can
be fixed in such situations.

In England, however, the general law relating to judicial notice is not well settled
by any statute. Moreover, the courts are invariably using both judicial notice and
common knowledge rule for excluding certain facts from further proof. Here, the
line that demarcates judicial notice and common knowledge is very delicate;
therefore, it is very difficult to determine precisely under which category a fact
would come. However, from the Turners
rule is applicable only for avoiding expert testimony and it is also limited to the

difference between the conclusions based on proved facts and admitting certain
adjudicative facts without formal proof is apparent. But the degree of proof on both
types of facts are situated in different poles; judicial notice insists the absolute
certainty on the existence or non-existence of a fact and the common knowledge
needs the proof beyond reasonable doubt. At this juncture, reaching conclusion
from the proved facts obviously results in the determination of an issue before the
judges.

VII. JUDICIAL NOTICE ON PUBLIC RECORD OF A COURT OF LAW

It is usual practice that courts may take notice of a record of judicial or quasi-
judicial proceedings, if that record is relevant to the case at hand. But, this is
subject to the limitation that while doing so the court is expected to notice only
about the existence of those records and not the veracity of the arguments or any
disputed facts contained in that record. Similarly, it is not legitimate in taking
notice of the arguments or averments made by the parties through such records
since they might be adduced as self-serving statements of which the truth is not
solid. Some of the U.S. decisions clarify the extent of the courts taking notice of
such records, which became an essential part of the judicial proceedings. In Lee v
City of Los Angeles,36 Ninth Circuit of California had conducted a roving inquiry
into the matter while hearing the appeal of Mary Sanders Lee whose action
against the defendants for wrongful arrest, extradition and incarceration was
dismissed by the district court. One of the main issues in the appeal was whether
the district court erred in taking judicial notice of the disputed facts contained in

36 Lee v. City of Los Angeles, 250 F 3d 668 (2001).

proceedings. Harry Pregerso

but for the existence of the opinion, which is not subject to reasonable dispute over
37 The court found error that the district court mistakenly took

notice of the validity of the waiver, which would come under the unproved disputed
fact.

In a subsequent case, United States v S. Cal. Edison Co., U.S. district court for the
Eastern district of California denied the request of Southern California Edison
Company (SCEC) for taking judicial notice to determine the authenticity of the
-
liability clause contained in it.

VIII. JUDGES PERSONAL KNOWLEDGE AND JUDICIAL NOTICE

EXTENT

The law relating to the application of the principle of judicial notice is very clear
in the case of its extent with regard to the personal knowledge of judges. Judges
can avoid proof of a fact only if it is either
of a reasonable prudent man or if it is not coming under the disputed fact. This
rule is applicable to the judges even though they have specialized knowledge on a
particular matter. Judges are entitled to take notice only if it is a commonest of
common fact and they might be usurping if they are noticing something coming
under the special knowledge; whatever knowledge he had acquired on that
particular subject.

In United States v Lewis,38 Ninth Circuit had to consider the appropriateness of

the judicial notice took by the district judge relying on his personal experience
regarding the voluntariness of a confession made by Lewis (respondent) who was
under the pressure of anesthesia. Instead of receiving any evidence of her
condition, judge came to the conclusion that he could notice this condition with his
personal experience and what other people told him about his own behavior after
receiving anesthesia.39 This was vehemently stated by the Ninth Circuit Court as
erroneous since his lack of percipiency and supporting evidence for proving his
statement.

Thus, the personal knowledge or experience of a judge does not come under the
purview of judicial notice because that knowledge or experience is his own and not
available to others. If he desires to share such experience or knowledge, he shall

37 Id 690. Citing Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181
(3rd Cir) F3d 410, 426-27 (1999).
38 United States v. Lewis, 833 (9th Cir) F2d 1380 (1987).

39 Id. at 1385.
testify as a witness. The judges are not entitled to use the judicial power in taking
notice of anything within their knowledge unless it is not coming under the
common knowledge. The English and Indian positions are also similar. Thayer has

knowledge from their judicial knowledge. In Partridge v Strange,40

attempt to make understand the judges about a statute, which was later found not
in existence, for taking judicial notice was rejected stating the reason that it was
unknown in forma judicii. It is quite worthy to quote the argument made by the
and a judicial knowledge (un
pryuate science et un iudyciall science), and of your private knowledge you cannot

In England, the rule was demonstrated by the QB Division in Carter v Eastbourne

Borough Council41, an appeal from the East Sussex Justices, Eastbourne, in which
the appellant was convicted for uprooting trees violating the Town and Country
Planning Act, 1990. The trial Justices after examining the photographs and
hearing the witnesses, from their own personal knowledge came to the conclusion

in less than four years. After having a discussion from the Cross & Tapper on
Evidence, appellate court rightly distinguished the facts that should be proved by
evidence from matters warranting notice and concluded that such evidential
matters should not be filled by the personal opinion of the judges.

At this juncture, one prominent query which would arise is that apart from the

certain things which are unknown to the ordinary common man. The uncertainty
was cleared somewhat in an English case Wetherall v Harrison,42 in which Lord

ional capacity as a
medical doctor advised his learned companions regarding the genuineness of a
needle phobia
failure to supply the specimen for drunken-driving. Appellate court held that
judges could use their specialized knowledge for evaluating the credibility of the
testimony of witnesses. It is submitted that this case, however, cannot be
considered as an authority sanctioning judges to base their specialized knowledge,
since the reasoning of the case is limited only to the evaluation of the evidence
adduced by the parties and not for supplying anything in addition to that. It

40 Plow. 77, 83-84 as cited in Thayer, 283-84.

41 Carter v. Eastbourne Borough Council, 2 PLR 60 (2000).
42 Wetherall v. Harrison, QB 773 (1976).
should, however, be noted that if a judge vested with specialized knowledge could
supply something which is not within the knowledge of the parties, after giving
them an opportunity to rebut in open court would not be violative of any
evidentiary rules; if the purpose is for the proper administration of justice. In such
situations, it is suggested that it should not be disturbed with any hard and fast
rules.

IX. JUDICIALLY NOTICED FACT AND ITS EFFECT

This, of course, is a major issue in the judicial notice jurisprudence; whether the
fact once noticed by a judge in a particular case, automatically receives
conclusiveness of proof, which is beyond the purview of rebuttal. It is very difficult
to answer the question without having a peer into the discussion made by some of
the evidence law scholars. In fact, the scholarly writings show that there is a
conflict of opinion about the nature of the proof obtained through judicial notice. I
would like to patch up the conflict in between the authorities through certain
assertions. In support of that, I propose to start my analysis from the Benthamite
conception on the topic i.e. in ter
evidential concepts like judicial notice, presumptions and other similar exempted
facts to the judicial conscience for tracing the persuasion of the judicial mind. At
the outset, one should recognize that the way in which the persuasion is created
in the mind of the judge through evidential facts and presumptive facts are diverse
in nature. Evidential facts create persuasion through judicial proof and on the
other hand, presumptive facts through inferences. Evidential facts may perhaps,
establish a disputable premise to the judicial mind only if it attains the degree of
proof beyond any doubt and thereby stimulates their persuasion. At the same
time, in the case of presumptive facts, the backup is coming from some other
extraneous facts. According to Bentham, the degree of the proof obtained through
judicial notice of notorious facts depends on its ability to create that much of
persuasion in the judicial mind against the existence or nonexistence of a
particular fact in question. For example, taking notice of several convictions
against a person for theft would create a strong persuasion in the mind of the judge
who is handling a theft case against the same person and useful for declaring him
as a habitual offender for the enhancement of punishment.

It is also pertinent to note that it is not quite easy to determine the conclusiveness
of a matter judicially noticed, since it depends on the degree of the persuasion of
the judicial mind. There are different types of facts that would give different
persuasions concerning the deciding matter. For example, the degree which would

ee of proof is based on
the possibility of disputability of a fact noticed by the judge; however, all these
things are coming under the province of the judicial reasoning and discretion. The
conclusiveness of a matter judicially noticed depends on the degree of proof which
could be supplied by that matter to the judicial mind in order to reach a firm
decision regarding its indisputability. If a matter is disputable, law is granting
absolute discretion to the judge to insist for proving with evidence. As a
technicality of the law of evidence, the issue is also amenable to be discussed in
different perspectives. At this juncture, I think, it is judicious to proceed with the
discussion after referring the views of some of the exponents in law of evidence.

The first view, indeed, that could be recalled from my reading is of the eminent
evidence law scholar Simon Greenleaf, who gave a misleading explanation while
discussing the implications of the doctrine of judicial notice.43
observation had three mai
basis of the observation is very shabby since it is a complete negation of the general
rules of evidence as to proof; disturbing of proved facts is unwarranted. The law
always prefers the finality of decisions and the first statement is not feasible to it.
In fact, he failed to distinguish the opportunity to the opponent to challenge the
indisputability before taking notice of a fact and afterwards. There is no restriction
imposed so far by the general rule of evidence against the opponent in rebutting
the matter of notice. But, once that process is over there is no logic in allowing the
opponent for further rebuttal. The application of this logic is same for the other
items coming under the same head i.
example is admitted facts. Therefore, it is submitted that the forbiddance of the
production of evidence and its relevance in the law of evidence would find
importance only if it is occurring before taking notice.

The second statement is shabby and against the judicial process of noticing of
facts. It is the basic rule that no judge is permitted to take notice of any fact unless
he is fully convinced about the truth and existence of it. The noticing of a fact may
be either because of the conviction occurs from his own knowledge or due to the
submission from the side of the parties. In both cases, complete discretion is
available to the judge in accepting or rejecting the matter as truth. Moreover,
there is no question of relieving any party from producing evidence because that
is only incidental to the impact of the doctrine of judicial notice. The object of the
doctrine is to save time and avoiding unnecessary expenses.

The comprehensive language of Professor Louis L. Hammon,44 an evidence law

scholar gives a complete picture about the conclusiveness effect of the judicially
noticed fact. The law cannot allow judges to take notice of any matter in issue as

43 SIMON GREENLEAF, A TREATISE ON THE LAW OF EVIDENCE 18 (1899).

44 LOUIS L. HAMMON, HAMMON ON EVIDENCE (1907).
which could not be assigned to a matter in which law is exempting a fact from

judicial notice of a fact is merely presuming it, i.e., assuming it until there shall
45 It is clear that, this rationale is perfectly

inconsistent with the purpose sought to be achieved by the doctrine and untenable.

It should be remarked, also, that if a court judicially noticed a particular fact, as

an issue of law, if there is any error committed by the lower court, it is reviewable
and corrected by the higher judiciary through appeal or any other available
mechanism. The taking of judicial notice is not limited to the trial court. In the
third part of the observation, Wigmore has admitted that the issue connected with
judicial notice is an issue to be settled by the judge and not by the jury; therefore,
it can be considered as an issue of law, which is amenable to appeal.

Now, it is time, to turn to the statutory provisions regarding the conclusiveness of

the matters noticed by the judge. In the United States, it is perceptible from the
first reading of the federal rule 201 that the rule is in favor of the conclusive nature

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

ty 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
and (e) is that a court can direct the jury
regarding the conclusiveness of a matter judicially noticed only after giving an
opportunity to the party, if he had made a timely request for the same. Moreover,
there is a difference in the nature of the conclusiveness in between civil and
criminal cases. In civil matters, once the judge had instructed the jury regarding
the conclusiveness, it is absolutely binding on him. On the other hand, in criminal
cases, it is only directory and the jury may either accept or reject the fact. The
reason for this difference is understandable from the note of committee on the
judiciary, which says that in criminal cases such mandatory conclusiveness would
violate the Sixth Amendment right to a jury trial.46

45 2 JAMES B. THAYER, PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON LAW 309 (1898).
46
a speedy and public trial, by an impartial jury of the State and district wherein the crime shall
have been committed, which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted with the witnesses against
him; to have compulsory process for obtaining Witnesses in his favor, and to have the assistance
Unlike U.S., in India, the Indian Evidence Act does not specifically say anything
about the conclusiveness of the judicially noticed facts. However, from the

gives the meaning that the provision is only directory and the judges may seek

course, there is no need of further proof but if the situation warrants, judges can
insist the parties to provide evidence for the matter already noticed.

CONCLUSION

From the aforementioned discussion based on the juristic views and legislation, I
submit that it is not wise to consider the issue in a perplexed manner and there is
no need to create a rule of law in making judicially noticed facts as absolute proof;
instead better to reserve it for the application of judicial discretion whenever it
needed, subjecting to the review mechanism of the appellate courts. However, I
further submit that cataloguing of different matters coming under the judicial
notice is possible to differentiate the matter sought further proof subject to judicial
discretion and matter to be declared as conclusive. For e.g., the matters like laws
in force for the time being, including rules, notifications published in the official
gazette, official designations, offices of state and matters of commonest of common
knowledge like important dates like independence day, republic day, Christmas
and other Internationally observed important days, universal truths like sun rise
and set and other similar things on which there is no mere chance of any dispute
or change. On the other hand, scientific inventions and discoveries which are
based on humanly created propositions and theories, arts etc., shall always be
considered as suspicious.