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2.5 Judicial Notice

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The court has decided it is not necessary to receive evidence of the fact that [insert fact noticed e.g., the city of San Francisco is north of the city of Los Angeles] [because this fact is of such common knowledge]. You may, but are not required to, accept this fact as true.


An instruction regarding judicial notice should be given at the time notice is taken. "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." Fed. R. Evid. 201(b). Although the court must instruct a jury in a civil case to accept as conclusive any fact judicially noticed, "[i]n a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed." Fed. R. Evid. 201(g). Thus, in United States v. Chapel, 41 F.3d 1338 (9th Cir.1994), the trial court correctly took judicial notice of a bank’s FDIC status because the evidence established its status "was not subject to reasonable dispute." Id. at 1342. Moreover, the court did not "usurp the jury’s fact-finding role by taking judicial notice" when it instructed the jury that "you may accept the court’s declaration as evidence and regard as proved the fact or event which has been judicially noticed. You are not required to do so, however, since you are the sole judges of the facts." Id.