Wis. Stat. § 902.01

Current through Acts 2023-2024, ch. 272

Section 902.01 - Judicial notice of adjudicative facts

(1) SCOPE. This section governs only judicial notice of adjudicative facts.

(2) KINDS OF FACTS. A judicially noticed fact must be one not subject to reasonable dispute in that it is any of the following:

(a) A fact generally known within the territorial jurisdiction of the trial court.

(b) A fact capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

(3) WHEN DISCRETIONARY. A judge or court may take judicial notice, whether requested or not.

(4) WHEN MANDATORY. A judge or court shall take judicial notice if requested by a party and supplied with the necessary information.

(5) 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.

(6) TIME OF TAKING NOTICE. Judicial notice may be taken at any stage of the proceeding.

(7) INSTRUCTING JURY. The judge shall instruct the jury to accept as established any facts judicially noticed.

Wis. Stat. § 902.01

Sup. Ct. Order, 59 Wis. 2d R1, R23 (1973); 1999 a. 85.

When evidence was in conflict as to whether a substance found in the defendant's possession was heroin, the judge could not take judicial notice of other sources without proper notice to the parties. State v. Barnes, 52 Wis. 2d 82, 187 N.W.2d 845 (1971). The supreme court cannot take judicial notice of proceedings in a court other than that from which the appeal is taken. Perkins v. State, 61 Wis. 2d 341, 212 N.W.2d 141 (1973). The supreme court declined to take judicial notice of the suggested fact that other employment of a like character was available to wrongfully suspended employees. State ex rel. Schilling & Klingler v. Baird, 65 Wis. 2d 394, 222 N.W.2d 666 (1974). An affidavit on file in another case does not meet the standards regarding judicial notice of facts outside of the record. Kornitz v. Commonwealth Land Title Ins. Co. 81 Wis. 2d 322, 260 N.W.2d 680 (1978). Courts may take judicial notice of the reliability of underlying principles of speed radar detection. State v. Hanson, 85 Wis. 2d 233, 270 N.W.2d 212 (1978). A court properly took judicial notice of the fact that rapid consumption of 1/2 quart of liquor probably caused a girl's death. State ex rel. Cholka v. Johnson, 96 Wis. 2d 704, 292 N.W.2d 835 (1980). The trial court erred by relying on its own experience in determining whether a demonstrative videotape was admissible as the judge's opinion was not part of the record or a generally known fact suitable for judicial notice. State v. Peterson, 222 Wis. 2d 449, 588 N.W.2d 84 (Ct. App. 1998), 97-3737. A jury instruction under sub. (7) directing the jury to accept a judicially-noticed fact as true when applied to an element of a criminal offense eliminates the jury's opportunity to reach an independent, beyond-a-reasonable-doubt decision on that element and is constitutional error, although it is subject to harmless error analysis. State v. Harvey, 2002 WI 93, 254 Wis. 2d 442, 647 N.W.2d 189, 00-0541. Judicial notice may be taken at any stage of the proceeding. This means that an appellate court may take judicial notice when it is appropriate. A party against whom the taking of judicial notice is sought must have a chance to object as to whether the matters are capable of indisputable proof and, therefore, subject to the taking of judicial notice. Sisson v. Hansen Storage Company, 2008 WI App 111, 313 Wis. 2d 411, 756 N.W.2d 667, 07-1426. In Defense of Wisconsin's Judicial Notice Rule. Beilin. 2003 WLR 499.