Alaska Comm. R. Evid. 203

As amended through November 12, 2024

Rule 203 - Procedure for Taking Judicial Notice

This Rule applies to all aspects of judicial notice and must, therefore, be read in conjunction with both Rule 201 and Rule 202.

(a)Determining Propriety of Judicial Notice. Basic considerations of procedural fairness demand an opportunity to be heard on the propriety of taking judicial notice and the tenor of the matter noticed. The rule requires the granting of that opportunity upon request. No formal scheme of giving notice is provided. An adversely affected party may learn in advance that judicial notice is in contemplation, either by virtue of being served with a copy of a request by another party under subdivision (d) of Rule 201 that judicial notice be taken, or through an advance indication by the judge. Or he may have no advance notice at all. Although the rule does not require formal notice by the court to the parties, before judicial notice is taken (except in unusual circumstances) the court should announce its intentions to the parties and indicate for the record the particular facts to be taken as true. See Concerned Citizens v. Kenai Peninsula Borough, 527 P.2d 417 (Alaska 1974). In the absence of advance notice, a request made after the fact could not in fairness be considered untimely. See the provision for hearing on timely request in the federal Administrative Procedure Act, 5 U.S.C. § 556(e). See also Revised Model State Administrative Procedure Act (1961), 9C U.L.A. §10(4) (Supp. 1967).

In considering taking judicial notice, the court is not restricted to sources of information proffered by the parties, but may consult any source, including treatises, experts, scientific journals, etc. No exclusionary rule except a valid claim of privilege shall apply. However, the court as a matter of discretion, should disclose, on request, the main sources on which a decision to take judicial notice is or was based, in order to make the parties' opportunity to be heard meaningful.

(b)Time of Taking Notice. In accord with the usual view, judicial notice may be taken at any stage of the proceedings, whether in the trial court or on appeal. Federal Rule 201(f); Uniform Rule 12; McCormick § 333.

(c)Instructing the Jury. In civil cases, the rule contemplates there is to be no evidence before the jury in disproof of a judicially noticed fact. The court instructs the jury to take judicially noticed facts as established. This position is justified by the undesirable effects of the opposite rule in limiting the rebutting party, though not his opponent, to admissible evidence, in defeating the reasons for judicial notice, and in affecting the substantive law to an extent and in ways largely unforeseeable. Ample protection and flexibility are afforded by the broad provision for opportunity to be heard on request, set forth in subdivision (a).

Authority upon the propriety of taking judicial notice against an accused in a criminal case with respect to matters other than venue is relatively meager. While it may be argued that the right of jury trial does not extend to matters which are beyond reasonable dispute, the rule opts for the greater protection of the accused's right to a jury trial afforded by the limited instruction that the jury may, but is not required to, accept as conclusive any fact judicially noticed. The Federal Rule is in accord. Much of the concern about a possible need to take notice of some facts in criminal cases can be eliminated by careful attention to the elements of an offense. Venue and jurisdiction are not usually elements of a crime. Of course, they must be proper (assuming an appeal will be taken). But the same judge who decides in a civil case whether a court has jurisdiction and what proper venue is can do so in a criminal case. Of course, venue and jurisdiction questions may involve factfinding, but many questions left for the court involve factfinding. See, e.g., Rule 104(a), supra. Consider also change of venue motions and attacks on jury verdicts. Factfinding unrelated to the elements of the crime can be done by the judge. With this in mind, Rule 203 is drafted to avoid the knotty constitutional questions that would arise were an attempt made to permit judicial notice of some facts relevant to the merits of an action but not others. To draw such a line might be to resurrect the "ultimate issue" test abandoned in Rule 704, infra.

Rule 203(c) is drafted so that it conclusively states that determining questions of law shall be a matter for the court. When the determination of the law of foreign states and foreign countries was treated as a question of fact, it became a matter for the jury in appropriate cases. Statutes and acts such as the Uniform Judicial Notice of Foreign Law Act and Federal Rule of Civil Procedure 44.1 have attempted to remove this anomaly in traditional court and jury functions. This subdivision expresses the view that determining the law is a function of the court. See Uniform Rule 10(4) for an identical provision. If judicial notice of law is not taken, evidence will be required, but the decision on what the law is remains that of the court.

Nothing in the rule is intended to suggest that it authorizes a lawyer to argue jury nullification to the jury in a criminal case. The jury simply is to be told that a noticed fact is treated as if evidence of it were authorized, and the trier of fact is to treat it as if evidence were submitted. A defense lawyer can argue that any fact should be disbelieved by the jury and this is as true of a judicially noticed fact as of any other fact.

Alaska Comm. R. Evid. 203