Mass. R. Evid. 201
Mass. Guid. Evid. 201
Subsection (a). There is a settled distinction between "adjudicative facts" and "legislative facts." See Cast Iron Soil Pipe Inst. v. Board of State Examiners of Plumbers & Gas Fitters, 8 Mass. App. Ct. 575, 586(1979), and cases cited. Adjudicative facts are "the kind of facts that go to a jury in a jury case." Reid v. Acting Comm'r of the Dep't of Community Affairs, 362 Mass. 136, 142 (1972), quoting Davis, Administrative Law Treatise § 7.02. Legislative facts are those facts, including statistics, policy views, and other information, that constitute the reasons for legislation or administrative regulations. See Massachusetts Fed'n of Teachers, AFT, AFL-CIO v. Board of Educ., 436 Mass. 763, 772 (2002). Accord United States v. Bello, 194 F.3d 18, 23 (1st Cir. 1999). Judges "should use great caution before conducting independent research into factual matters, particularly on the internet." Commonwealth v. Hilaire, 92 Mass. App. Ct. 784, 789 & n.7 (2018) (demographic data used to identify defendant as perpetrator of home invasion was adjudicatory fact not appropriate for judicial notice), citing ABA Comm. on Ethics and Prof'l Responsibility, Independent Factual Research by Judges Via the Internet, Formal Op. 478 (2017).
The Supreme Judicial Court is "not inclined towards a narrow and illiberal application of the doctrine of judicial notice." Finlay v. Eastern Racing Ass'n, Inc., 308 Mass. 20, 27 (1941).
For an extensive list of matters on which a court may take judicial notice, see W.G. Young, J.R. Pollets, & C. Poreda, Annotated Guide to Massachusetts Evidence § 201 (2017-2018 ed.).
Subsection (b)(1). This subsection is derived from Nantucket v. Beinecke, 379 Mass. 345, 352 (1979). See also Commonwealth v. Kingsbury, 378 Mass. 751, 754 (1979). Accord Dimino v. Secretary of Commonwealth, 427 Mass. 704, 707 (1998) ("Factual matters which are 'indisputably true' are subject to judicial notice" [citations omitted].).
Subsection (b)(2). This subsection is derived from Commonwealth v. Green, 408 Mass. 48, 50 n.2 (1990). See also Commonwealth v. Kingsbury, 378 Mass. 751, 754 (1979). Accord Commonwealth v. Greco, 76 Mass. App. Ct. 296, 301 & n.11 (2010) ("judge did not err in taking judicial notice of the single and indisputable fact that, based upon the PDR [Physician's Desk Reference], Seroquel is the brand name for the generic drug quetiapine," while "not suggest[ing] that the PDR may be judicially noticed for other purposes"); Federal Nat'l Mtge. Ass'n v. Therrian, 42 Mass. App. Ct. 523, 525(1997) ("facts which are . . . verifiably true [e.g., Lynn is in Essex County] are susceptible of judicial notice"). "Judicial notice is not to be extended to personal observations of the judge or juror." Nantucket v. Beinecke, 379 Mass. 345, 352 (1979), citing Duarte, petitioner, 331 Mass. 747, 749-750 (1954). See also Commonwealth v. Barrett , 97 Mass. App. Ct. 437, 442(2020) (judge impermissibly relied on personal knowledge about mechanics of obtaining search warrant where impossibility of obtaining one in under two hours in Suffolk County was "not indisputable or universally true"); Commonwealth v. Kirk, 39 Mass. App. Ct. 225, 229(1995) ("judicial notice . . . cannot be taken of material factual issues that can only be decided by the fact finder on competent evidence"). Cf. Commonwealth v. Hilaire, 92 Mass. App. Ct. 784, 789(2018) (inappropriate for a motion judge to take judicial notice of demographic data in order to "connect a defendant to the description of suspects or to a crime").
A judge may take judicial notice of a firmly established theory or methodology that has been determined to be reliable in our courts. Commonwealth v. Davis, 487 Mass. 448, 454-455 (2021).
In Yankee Atomic Elec. Co. v. Secretary of the Commonwealth, 402 Mass. 750, 759 n.7 (1988), the court explained the difference between "judicial notice" of facts and "official notice" of facts. The latter includes matters that are "indisputably true," as well as other factual matters that an agency may take notice of due to its special familiarity with the subject matter. See G. L. c. 30A, § 6.
Court Records and Prior Proceedings. "[A] judge may take judicial notice of the court's records in a related action." Jarosz v. Palmer, 436 Mass. 526, 530 (2002). See also Adoption of Zak, 90 Mass. App. Ct. 840, 844 n.7 (2017); Home Depot v. Kardas, 81 Mass. App. Ct. 27, 28(2011). In contrast, "[a] judge may not take judicial notice of facts or evidence brought out at a prior hearing that are not also admitted in evidence at the current hearing." Commonwealth v. O'Brien, 423 Mass. 841, 848-849 (1996); Furtado v. Furtado, 380 Mass. 137, 140 n.1 (1980); Ferriter v.
Borthwick, 346 Mass. 391, 393 (1963). See also Care & Protection of Zita, 455 Mass. 272, 283 (2009) ("We recognize the challenges that confront a judge who has presided over a case that is closely related to a new proceeding; it may be impossible to erase a judge's memory of the prior case. But each party is entitled to an impartial magistrate and a decision based on the evidence presented in her case."); Matter of Hernandez, 101 Mass. App. Ct. 856, 869 & n.20 (2022) (in civil commitment proceeding, judge erred in taking judicial notice of prior competency findings in same proceeding but was entitled to take judicial notice of procedural history of related criminal case).
Subsection (c). This subsection, which is derived from Fed. R. Evid. 201(d) and Proposed Mass. R. Evid. 201(f), reflects the Massachusetts practice that judicial notice may be taken at any time by a trial or appellate court. Maguire v. Director of Office of Medicaid, 82 Mass. App. Ct. 549, 551 n.5 (2012); Commonwealth v. Grinkley, 44 Mass. App. Ct. 62, 69 n.9 (1997). While there is no express authority for the proposition that judicial notice is discretionary in connection with adjudicative facts, see Commonwealth v. Finegan, 45 Mass. App. Ct. 921, 922(1998), the principle follows logically from the settled proposition that when there are no disputed facts, a legal dispute is ripe for a decision by the court. See Jackson v. Longcope, 394 Mass. 577, 580 n.2 (1985) (judicial notice may be taken by the court in connection with a motion to dismiss under Mass. R. Civ. P. 12[b][6]); Commonwealth v. Kingsbury, 378 Mass. 751, 754-755 (1979) ("The right of a court to take judicial notice of subjects of common knowledge is substantially the same as the right of jurors to rely on their common knowledge."). See also Commonwealth v. Marzynski, 149 Mass. 68, 72 (1889) (court took judicial notice that cigars were not drugs or medicine and properly excluded expert opinions stating the contrary). Courts may take judicial notice of their own records. See, e.g., Jarosz v. Palmer, 436 Mass. 526, 530 (2002). But see Commonwealth v. Berry, 463 Mass. 800, 804 n.6 (2012) (appellate court will not take judicial notice of contents of police report included in trial court file where report was not introduced into evidence or considered by motion judge and was not made part of record on appeal).
Criminal Cases. The defendant's constitutional right to trial by jury means that the "trier of fact, judge or jury, cannot be compelled to find against the defendant as to any element of the crime." Commonwealth v. Pauley, 368 Mass. 286, 291 (1975). Although the court may take judicial notice of an adjudicative fact in a criminal case, see Commonwealth v. Green, 408 Mass. 48, 50 & n.2 (1990), "[t]he proper practice in a criminal trial is to submit all factual issues to the jury, including matters of which the judge may take judicial notice." Kingsbury, 378 Mass. at 755, citing Fed. R. Evid. 201(g) (currently codified at Fed. R. Evid. 201[f]).
Subsection (d). This subsection is derived from the principle, grounded in due process considerations, that a party has a right to notice of matters that the court will adjudicate. See Department of Revenue v. C.M.J., 432 Mass. 69, 76 n.15 (2000), and cases cited. Even in situations where information is appropriate for judicial notice under Section 201(b)(2), it should not be taken without notice to the parties and an opportunity to be heard. Commonwealth v. Hilaire, 92 Mass. App. Ct. 784, 789(2018) (motion judge improperly took judicial notice of adjudicatory fact after evidentiary hearing concluded and without notice to [or input from] the parties).
Subsection (e). The first sentence of this subsection, which is taken verbatim from Fed. R. Evid. 201(f), reflects Massachusetts practice. It is consistent with and follows from the principle set forth in Section 201(c). The second sentence is derived from Commonwealth v. Kingsbury, 378 Mass. 751, 754-755 (1979), and Commonwealth v. Finegan, 45 Mass. App. Ct. 921, 923(1998), where the courts noted that any fact that is the subject of judicial notice in a criminal case must be given to the jury for its determination. See generally United States v. Bello, 194 F.3d 18, 22-26 (1st Cir. 1999) (explaining relationship between Fed. R. Evid. 201[b] and Fed. R. Evid. 201[g], currently codified at Fed. R. Evid. 201[f]).
Section 1115(f)(3), Evidentiary Issues in Care and Protection, Child Custody, and Termination of Parental Rights Cases: Other Evidence: Judicial Findings from Prior Proceedings.