ARTICLE II.

JUDICIAL NOTICE

     Rule 201  Judicial notice of adjudicative facts.  (a)  Scope of rule.  This rule governs only judicial notice of adjudicative facts.

     (b)  Kinds of facts.  A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court, or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

     (c)  When discretionary.  A court may take judicial notice, whether requested or not.

     (d)  When mandatory.  A court shall take judicial notice if requested by a party and supplied with the necessary information.

     (e)  Opportunity to be heard.  A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed.  In the absence of prior notification, the request may be made after judicial notice has been taken.

     (f)  Time of taking notice.  Judicial notice may be taken at any stage of the proceeding.

     (g)  Instructing jury.  In a civil proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed.  In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed. [L 1980, c 164, pt of §1]

RULE 201 COMMENTARY

  This rule is identical with Fed. R. Evid. 201, except that in subsection (g) the words "action or" are deleted from the federal rule formulation, "civil action or proceeding," as redundant.  The process of judicial notice enables a court to declare as true a relevant fact without receiving evidence or proof.  As the Advisory Committee's Note to Fed. R. Evid. 201 puts it:  "The usual method of establishing adjudicative facts is through the introduction of evidence, ordinarily consisting of the testimony of witnesses.  If particular facts are outside the area of reasonable controversy, this process is dispensed with as unnecessary.  A high degree of indisputability is the essential prerequisite."

  Subsection (a):  This subsection, indicating that the rule governs only "adjudicative" facts, implicitly suggests the distinction between adjudicative and "legislative" facts.  Adjudicative facts are those relevant to the issues before the court (see Rule 401 infra) and which serve to "explain who did what, when, where, how, and with what motive and intent," McCormick §328.  In contrast, judicial notice of legislative facts "occurs when a judge is faced with the task of creating law, by deciding upon the constitutional validity of a statute, or the interpretation of a statute, or the extension or restriction of a common law rule, upon grounds of policy, and the policy is thought to hinge upon social, economic, political, or scientific facts," id.  See, e.g., State v. Brighter, 61 H. 99, 595 P.2d 1072 (1979), where the court sustained a criminal presumption (see Rule 306 infra) against a due process challenge by judicially noticing the factual conclusions contained in a report by New York's Temporary Commission to Evaluate the Drug Laws.  These rules do not attempt to deal with judicial notice of legislative facts.

  Subsection (b):  The classification of adjudicative facts into those generally known within the jurisdiction, or capable of being readily determined, is consistent with the overall criterion of indisputability, see McCormick §328.  The Hawaii courts have held that a fact is a proper subject for judicial notice if it is common knowledge or is easily verifiable, Almeida v. Correa, 51 H. 594, 465 P.2d 564 (1970), and that the effect of such judicial notice is to render conclusive the fact so noticed, unless it is rebutted, Application of Pioneer Mill Co., 53 H. 496, 497 P.2d 549 (1972).  Pua v. Hilo Tribune-Herald, Ltd., 31 H. 65 (1929), established that a judge cannot take judicial notice of facts based solely upon his own personal knowledge unless the facts are also known to the community generally.

  More specifically, Hawaii courts have taken judicial notice of the braking distance of a speeding car, State v. Arena, 46 H. 315, 379 P.2d 594 (1963); the exact time of sunrise on a particular day, Territory v. Makaena, 39 H. 270 (1952); the occurrence of a territory-wide sugar strike, Territory v. Kaholokua, 37 H. 625 (1947); the Hawaiian language, Bishop v. Mahiko, 35 H. 608, 615 (1940); Hapai v. Brown, 21 H. 499 (1913); the date of the King's birthday celebration, Kapiolani v. Mahelona, 9 H. 676 (1895); and the announcement of a political candidate for office, Application of Pioneer Mill Co., 53 H. 496, 497 P.2d 549 (1972).

  They have also judicially noticed the fact that banana trees hold water, Territory v. Araujo, 21 H. 56 (1912); that tuberculosis is contagious, Fukuoka v. Dodo, 43 H. 337 (1959); that electricity is dangerous, Honolulu Rapid Transit v. Hawaiian Tramways Co., 13 H. 363 (1901); that the stock market fluctuates, Corstorphine v. Bishop National Bank of Hawaii, 33 H. 315 (1935); that long-term leases are common in Hawaii, Francone v. McClay, 41 H. 72 (1955); that waves will fill a hole dug in the sand on a beach, Klausmeyers v. Makaha Valley Farms, Ltd., 41 H. 287 (1956); that many automobile owners carry insurance, Carr v. Kinney, 41 H. 166 (1955); that the value of Hawaii real estate is increasing, Hawaiian Trust Co. v. Rome, 36 H. 482 (1943); that Hansen's disease does not necessarily cause sterility, Peters and McLean v. Vannatta, 41 H. 252 (1955); and that not everything eaten by a cow is incorporated into the milk, In re Robert Hind, Ltd., 34 H. 40 (1936).

  Subsections (c) and (d):  The court may take judicial notice of any adjudicative fact solely at its own discretion and upon its own motion, e.g., State v. Lee, 51 H. 516, 465 P.2d 573 (1970), where the court sua sponte took judicial notice of the statistical increase in motorcycle fatalities, despite the absence of a request by a party.  Should the court fail to take discretionary judicial notice of an adjudicative fact, however, such notice is mandated upon request of a party, provided the party supplies the court with data consistent with the requirement of subsection (b).

  Subsection (e):  This subsection establishes the right of any party to address the propriety of taking judicial notice even after the fact.  This provision is applicable to either discretionary or mandatory judicial notice.

  Subsection (f):  Consistent with the view in many jurisdictions, see, e.g., Cal. Evid. Code §459, judicial notice may be taken at any stage in a judicial proceeding, including the appellate level.  In Application of Pioneer Mill Co., 53 H. 496, 497 P.2d 549 (1972), the Hawaii Supreme Court held that an appellate court may take judicial notice of a fact despite the failure of the trial court to do so.

  Subsection (g):  The House Judiciary Committee report on the federal rules supported the rejection of a mandatory instruction in criminal cases "because contrary to the spirit of the Sixth Amendment right to a jury trial."

Law Journals and Reviews

  Texts Versus Testimony:  Rethinking Legal Uses of Non-Legal Expertise.  35 UH L. Rev. 81 (2013).

Case Notes

  Judicial notice of workload of judges in the criminal division and the resultant congestion.  63 H. 405, 629 P.2d 626 (1981).

  Mandates court to take judicial notice of its own records.  68 H. 164, 706 P.2d 1300 (1985).

  Judicial notice taken of divorce decree.  73 H. 566, 836 P.2d 1081 (1992).

  Appellate courts may take judicial notice of venue, provided that requirements of subsection (b) are met.  78 H. 185, 891 P.2d 272 (1995).

  For DUI prosecution, court could have taken judicial notice of tax maps to confirm that area "just beyond" Ala Kapuna overpass on Moanalua freeway was within Honolulu district.  80 H. 297, 909 P.2d 1112 (1995).

  Testimony of officer supplemented with tax map information which court could have taken judicial notice of pursuant to this rule, constituted substantial evidence supporting facts establishing venue with respect to DUI offense.  80 H. 297, 909 P.2d 1112 (1995).

  Trial court did not err in taking judicial notice of residuary legatee's representation of residency as Hawaii as representation was a fact capable of accurate and ready determination by looking at the pleadings in the underlying probate proceedings.  90 H. 443, 979 P.2d 39 (1999).

  Although opinions and facts in medical reports were not a proper subject of judicial notice and constituted inadmissible hearsay, where defendant had opportunity under subsection (e) to call physician witnesses at hearing and failed to do so, trial court's judicial notice and admission of medical reports did not constitute plain error.  91 H. 319, 984 P.2d 78 (1999).

  Judicial notice of contents of communications between parties was inappropriate because such communications differ from case to case; these are not the types of facts "generally known with certainty by all the reasonably intelligent people in the community or capable of accurate and ready determination by resort to sources of indisputable accuracy".  102 H. 449, 77 P.3d 940 (2003).

  Petitioner's apparent assertion that circuit court should have taken judicial notice of grand jury and preliminary hearing transcripts lacked merit where the circuit court was not supplied with the necessary information to take judicial notice of the content of the grand jury and preliminary hearing transcripts, as petitioner did not include those transcripts in the record.  129 H. 206, 297 P.3d 1062 (2013).

  Where the indictment was in the circuit court's file and in the court's immediate possession as it was attached to the defendant's post-verdict motion and part of the records of the case, and the ready availability and accuracy of the indictment, which neither party contested, thus could not be questioned, the circuit court erred in failing to take judicial notice of the date the indictment was found and filed.  137 H. 19, 364 P.3d 917 (2016).

  Where the indictment was in the record on appeal and was in the intermediate court of appeals' immediate possession and neither party disputed on appeal the validity and accuracy of the date of the indictment, and therefore the accuracy of the indictment could not be reasonably questioned, the court erred in failing to take judicial notice of the date the indictment was found and filed.  137 H. 19, 364 P.3d 917 (2016).

  Subsection (b) mentioned with respect to judicial notice of the retail price of cigarettes.  2 H. App. 259, 630 P.2d 126 (1981).

  Whether "beam attenuator" was acceptable means of testing intoxilyzer's accuracy was "adjudicative fact" not "generally known" or "capable of accurate and ready determination".  6 H. App. 624, 736 P.2d 70 (1987).

  Judicial notice taken that trial, being held in first circuit, was held in proper circuit.  78 H. 422 (App.), 895 P.2d 173 (1995).

  Though reliability of the horizontal gaze nystagmus (HGN) test did not constitute an adjudicative fact under this rule or a matter of law that can be judicially noticed under rule 202, district court properly took judicial notice of the validity of the principles underlying HGN testing and the reliability of HGN test results.  90 H. 225 (App.), 978 P.2d 191 (1999).

  District court committed plain error in taking judicial notice of its ruling in prior case that the 12-step drug recognition evaluation matrix was a valid test to ascertain drug impairment and that officer was a drug recognition expert, where the validity of the expert's and test's conclusions or accuracy of expert's observations were not the type of facts that were generally known within the territorial jurisdiction of the district court or capable of accurate and ready determination by resort to sources whose accuracy could not reasonably be questioned.  104 H. 193 (App.), 86 P.3d 1002 (2004).

  Cited:  133 H. 102, 324 P.3d 912 (2014).