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Section 128 of the New Zealand Evidence Act 2006:

(1) A Judge or jury may take notice of facts so known and accepted either generally or in the locality in which the proceeding is being held that they cannot reasonably be questioned.

(2) A Judge may take notice of facts capable of accurate and ready determination by reference to sources whose accuracy cannot reasonably be questioned and, if the proceedings involve a jury, may direct the jury in relation to this matter.

Does that apply to criminal trials too, or only civil? How common is it for parties in criminal trials to give notices like that and point judges to reliable sources of the facts referred to in the notices?

Intuitively I would expect that expert witnesses are required to testify about "facts capable of accurate and ready determination" — so that they could be cross-examined. If notices like provided for in the cited law above are indeed allowed in criminal trial that may seem to be sort of circumvention to avoid cross-examination. Is it not?

For example, there is a case involving a Labrador retriever attacking domestic ducks. It is a well-known fact (at least among owners of this particular dog breed) that chasing and catching ducks is in their blood/nature: they normally will do it as soon as they see ducks — as opposed to having to be encouraged/commanded. Assuming a reliable published source of this fact exists, can it be given in notice pursuant to the cited section? Or can this knowledge only be put before the court by way of expert witness e.g. a Labrador retriever breeder?

(Any common law jurisdiction)

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  • This looks like there are two questions: "criminal trials only or also civil?" and "what is the standard to take notice of facts?". The Labrador example seems to be entirely unrelated to the difference between criminal and civil trials.
    – MSalters
    Aug 2 at 16:04
  • @MSalters both issues are covered in my answer. Aug 2 at 16:19
  • 1
    @MSalters The example is indeed unrelated to the difference between the application of the cited law in civil and criminal cases, but then it is also questioned whether such a difference exists in the first place. The example also ellicits discussion as to what can and cannot be given as notice.
    – Greendrake
    Aug 2 at 16:48
  • I think you may be misunderstanding the word "notice". They are "taking notice", not "giving notice". In other words, the judge or jury may take well known facts into consideration when making decisions even if these facts where not argued in court.
    – David42
    Aug 3 at 16:20
  • A hot issue in the law of judicial notice in the U.S. right now is the extent to which courts can take judicial notice of court records from other criminal cases that are pertinent to establishing an enhanced sentence based upon prior criminal conduct.
    – ohwilleke
    Aug 4 at 0:30
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This is known as Judicial notice and is used in many jurisdictions. It is normally supposed to be used only for facts about which there could be no possible controversy. The Wikipedia article linked above mentions such examples as "which day of the week corresponded to a particular calendar date or the approximate time at sunset." It can also be used to include the text of a law from another jurisdiction.

According to the Free Legal Encyclopedia (FLE) article:

When a court takes judicial notice of a certain fact, it obviates the need for parties to prove the fact in court. Ordinarily, facts that relate to a case must be presented to the judge or jury through testimony or tangible evidence. However, if each fact in a case had to be proved through such presentation, the simplest case would take weeks to complete. To avoid burdening the judicial system, all legislatures have approved court rules that allow a court to recognize facts that constitute common knowledge without requiring proof from the parties.

...

The most common judicially noticed facts include the location of streets, buildings, and geographic areas; periods of time; business customs; historical events; and federal, state, and INTERNATIONAL LAW. Legislatures also maintain statutes that give courts the power to recognize certain facts in specific situations. For example, in Idaho any document affixed with the official seal of the state PUBLIC UTILITIES commission must be judicially noticed by all courts (Idaho Code § 61-209 [1996]). In Hawaii, when a commercial vehicle is cited for violating vehicle equipment regulations, a trial court must take judicial notice of the driver's subordinate position if the driver works for a company that owns the vehicle (Haw. Rev. Stat. § 291-37 [1995]).

In the United States, Rule 201 of the Federal Rules of Evidence (FRE) covers this. It reads:

(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:

(b) (1) is generally known within the trial court’s territorial jurisdiction; or

(b) (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

(c) Taking Notice. The court:

(c) (1) may take judicial notice on its own; or

(c) (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.

Note that subsection (e) preserves the rights of parties to be heard on whether taking notice is proper in a given case. None also that subsection (f) makes it clear that this procedure may be used in both civil and criminal cases.

The Wikipedia article (linked above) says that most US states closely follow FRE 201 in their rules of evidence. (So does the FLE article.) Note also that the NZ law quoted in the question is very similar even in wording to FRE 201. The article mentions similar practices in Canada and Australia.

The Wikipedia article also says:

Legal disputes about foreign affairs are generally settled by judicial notice by obtaining the information directly from the office of the Secretary of State (in the United States). For example, if a litigant in an extradition hearing attempted to argue that Israel was not a sovereign state, a statement from the Secretary of State that the U.S. recognized Israel as a sovereign state would settle the issue and no evidence could be led to the contrary. (In the United Kingdom, similar result could be had to information from the Foreign Secretary.)

Note that under US FRE 201 no fact that enters the case under judicial notice is binding on a jury in a criminal case, and a defendant (or the defendant's lawyer) may be heard to offer contrary evidence. Thus the practice does not offer a way to evade cross-examination of a proper expert wittiness if used properly. Similar rules probably exist in other jurisdictions.

The FLE article linked above goes on to state:

The danger of judicial notice is that, if abused, it can deprive the fact finder of the opportunity to decide a contestable fact in a case. In Walker v. Halliburton Services, 654 So. 2d 365 (La. App. 1995), Johnny Walker fell from a tank truck approximately ten feet to a concrete floor. Walker sought WORKERS' COMPENSATION benefits for his injuries, and his claim was denied by the Office of Workers' Compensation.

At the application hearing, the hearing officer stated that it was her experience that a soft-tissue injury heals in six weeks. She then took judicial notice of the fact that a soft-tissue injury heals in six weeks—preventing Walker from contesting that proposition—and disallowed Walker's claim. On appeal the Louisiana Court of Appeal, Third Circuit, reversed the decision and ordered the payment of workers' compensation benefits. According to the court, it was a clear error of law for the hearing officer to take judicial notice of such intricate medical knowledge.

Considering the example in the question of a Labrador retriever attacking domestic ducks. I would think this would not be a proper subject for judicial notice, because it would be "subject to reasonable dispute". An expert might testify that this happens in many but not all dogs of the breed, or under certain conditions but not others. So it might be comparable to the soft tissue injury case where notice was improper. However, if all parties agreed that such notice might be taken, then perhaps there would be no issue, as no party had been deprived of a right to contest the alleged fact. In such a case this might be considered a stipulation rather than an example of judicial notice.

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  • The similarity is because FRE 201 was a codification of a widely adopted common law rule that predated it tracking the key language from case law.
    – ohwilleke
    Aug 4 at 0:28

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