Del. R. Evid. 201

As amended through December 15, 2023

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.

Del. R. Evid. 201

Amended November 28, 2017, effective 1/1/2018.

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. 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 (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.