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South Carolina
JUDICIAL DEPARTMENT
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RULE 201

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. The court shall instruct the jury to accept as conclusive any fact judicially noticed.

Note:

Except for subsection (g), this rule is identical to the federal rule. As stated by subsection (a), this rule governs only judicial notice of adjudicative facts. Adjudicative facts are "facts about the particular event which gave rise to the lawsuit and ... [help] explain who did what, when, where, how and with what motive and intent." Legislative facts, on the other hand, are the factual grounds on which judges base their opinions "when deciding upon the constitutional validity of a statute, interpreting a statute, or extending or restricting a common law rule." C. McCormick, McCormick on Evidence §§ 328 and 331 (4th ed. 1992). The courts of this State continue to have authority to take judicial notice of legislative facts. Cf. Davenport v. City of Rock Hill, 315 S.C. 114, 432 S.E.2d 451 (1993) (history of tax anticipation notes considered).

Subsection (b) is consistent with prior case law in this State. See In Re Harry C., 280 S.C. 308, 313 S.E.2d 287 (1984); State v. Broad River Power Co., 177 S.C. 240, 181 S.E. 41 (1935). This rule does not allow a judge to take judicial notice of a fact merely because it is within his personal knowledge, and the case of Gamble v. Price, 289 S.C. 538, 347 S.E.2d 131 (Ct. App.1986) is inconsistent with this rule.

Regarding subsection (c), no South Carolina case has been found discussing this matter.

Subsection (d) is consistent with prior case law in this State. See Toole v. Salter, 249 S.C. 354, 154 S.E.2d 434 (1967); State v. Broad River Power Co., 177 S.C. 240, 181 S.E. 41 (1935).

Regarding subsection (e), the law of this State has not previously entitled a party to be heard on the issue of taking judicial notice. This opportunity appears to be a useful safeguard to protect a party's rights. J. Weinstein and M. Berger, Weinstein's Evidence, ¶ 201[05] (1994).

Subsection (f) is consistent with prior case law in this State. Cf . State v. Squires, 311 S.C. 11, 426 S.E.2d 738 (1992) (Supreme Court took judicial notice that infrared spectroscopy process had gained general acceptance in the scientific community); McCoy v. Town of York, 193 S.C. 390, 8 S.E.2d 905 (1940) (Supreme Court took judicial notice of dangerous qualities of gasoline and kerosene).

Subsection (g) requires a court to instruct the jury to accept as conclusive any fact judicially noticed. The rule differs from the federal rule in that it makes no distinction between civil and criminal cases. The language of the rule is taken from the 1974 Uniform Rules of Evidence, Rule 201.