Judicial notice is a substitute for proof. Winekoff v Pospisil, 384 Mich 260, 268 (1970). “The right to take judicial notice . . . does not mean that any such judicially noticeable matter is admissible in evidence. It must in addition be relevant as tending to prove or disprove the pleaded issue.” Id. at 266.
A.Adjudicative Facts1
“The court may take judicial notice on its own and may require a party to supply the necessary information.” MRE 201(c). Because “[t]aking judicial notice is discretionary,” refusing to do so is reviewed for an abuse of discretion. Freed v Salas, 286 Mich App 300, 341 (2009).
“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.” MRE 201(e). “The court may take judicial notice at any stage of the proceeding.” MRE 201(d). Whenever judicial notice is taken, the jury must be instructed. See MRE 201(f). “In a civil case, the court must instruct the jury to accept the noticed fact as conclusive.” Id. “In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.” Id.“
“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.” MRE 201(b).
1.Allowed
Another court’s opinion or judgment. A trial court may take judicial notice of another court’s authenticated opinion or judgment because it constitutes “prima facie evidence of all facts recited therein in any other court of this state” pursuant to MCL 600.2106. In re Sumpter Estate, 166 Mich App 48, 57 (1988).
County in which a particular city is situated. A trial court may take judicial notice of the county in which a particular city is situated. See People v Stokes, 312 Mich App 181, 208 (2015), vacated in part on other grounds 501 Mich 918 (2017)2 (rejecting the defendant’s argument that his defense counsel was ineffective for failing to contest the Wayne County Circuit Court’s jurisdiction where testimony at the preliminary examination established that the crime occurred in Detroit and no evidence was admitted specifically demonstrating that Detroit is situated in Wayne County because “[t]he district and circuit courts could take judicial notice of the fact that Detroit is situated within the borders of Wayne County”).
2.Not Allowed
Newspaper article. Courts “cannot take judicial notice of a newspaper article for the truth of the matters asserted therein because of the general prohibition against inadmissible hearsay.” Edwards v Detroit News, Inc, 322 Mich App 1, 4 n 2 (2017). However, courts can “take notice of the fact that [a newspaper article was] published[.]” Id. (noting that the publication of two articles was “especially pertinent in a defamation case implicating First Amendment principles, where the inquiry focuse[d] on . . . what reasonable readers would have understood at the time the communication was made and how a plaintiff’s reputation in the community was impacted”).
On its own, a court may take judicial notice of the common law, constitutions, statutes, Michigan ordinances and regulations, private acts and resolutions of the United States Congress and of the Michigan Legislature, and foreign laws. MRE 202(a). However, judicial notice of these items becomes conditionally mandatory “if a party so requests and: (1) supplies the court with sufficient information to enable it to properly to comply with the request; and (2) gives each adverse party such notice as the court may require to enable the adverse party to meet the request.” MRE 202(b). Failure to judicially notice a statute under MRE 202(b) may be harmless error where “(1) the statute[] [was] admitted into evidence at trial and [was] given to the jury for its consideration, (2) the jury was correctly instructed regarding the law, and (3) the statute[] [was] at best only marginally relevant to the issues.” Koenig v City of South Haven, 221 Mich App 711, 728 (1997), rev’d on other grounds 460 Mich 667 (1999).3
1 MRE 201 only governs judicial notice of adjudicative facts. It “does not preclude judicial notice of legislative facts.” MRE 201(a) (emphasis added).
2 For more information on the precedential value of an opinion with negative subsequent history, see our note.
3 For more information on the precedential value of an opinion with negative subsequent history, see our note.