Despite what we may see on TV shows like Damages and Suits, judges must decide cases based on the evidence presented in the courtroom by counsel. Judges cannot go around and talk to whomever, whenever they want about whatever they want. For example, contacting victims of a crime; talking to doctors at cocktail parties about the effects of a drug in question; or telling your law clerk to visit a property in dispute for you are all against the rules. And would definitely lay the foundation for a mistrial in real life.

However, in law there is always an exception to the rule. Judges can sometimes go beyond the evidence presented to them. They can judicially note facts. Judicial notice is a rule in the law of evidence that allows a fact to be introduced into evidence without being tested in the courtroom. These facts need to be (1) so notorious or (2) capable of immediate and accurate verification (e.g. Google Maps).

But what is a fact?

Elizabeth Thornburg writes in “The Curious Appellate Judge: Ethical Limits on Independent Research” that the difference between fact and law is based on legal fictions.

Thornburg states that even the Supreme Court has recognized that in some cases that the fact/law distinction turns simply “on a determination that … one judicial actor is better positioned than another to decide the issue in question.” The courts generally assign decisions that are more important to the judge over the jury.

Consider, for example, the contrasting way in which courts treat issues of negligence and issues of contract interpretation. Negligence decisions are treated as facts—and decided by juries—even when they include evaluative, law-application considerations such as whether the defendant’s conduct was “reasonable.” Contracts cases, on the other hand, often define the ultimate fact issue, such as whether a contract was “breached” or whether it is “unconscionable” as a question of law for the court. Why? Not because there is some inherent difference between the kinds of facts being decided, but because courts have rejected a normative role for the jury…

But when it comes to judicial notice it should be cautioned, that sometimes “There is nothing more deceptive than an obvious fact.”
― Arthur Conan DoyleThe Boscombe Valley Mystery

Check out Elizabeth Thornburg’s excellent article “The Curious Appellate Judge: Ethical Limits on Independent Research” at: