Posted on February 6, 2021

What Is Judicial Notice In An Illinois Divorce Hearing Or Trial?

Much of the divorce process looks like backroom horse trading…and it kind of is. But, when you can’t agree in those back rooms, you have the right to go to a full hearing in front of a judge. At that point, the bargaining is over and your case is 100% governed by evidence presented as applied to the Illinois law.

Presenting evidence is no joke. There is no time to look up how to do present evidence properly. There’s even less time to object to someone presenting evidence you don’t like. And, there’s less than a second to answer an objection to the evidence you are presenting.

Some evidence, always gets considered by a judge in an Illinois divorce hearing or trial because it’s just so well known, agreed upon or trustworthy. This type of automatically admissible evidence is admitted by judicial notice.

What Is Judicial Notice?

Judicial Notice is “[e]vidence in some cases without hearing or inquiry, is accepted by a court. It is typically a well known or notorious or indisputable, proven fact.” Black’s Law Dictionary (11th ed. 2019).

For example, back in 1858 Abraham Lincoln was a trial lawyer who used judicial notice to show a witness lied on the stand when he claimed he had witnessed the crime by the glow of moonlight. Abraham Lincoln then produced an almanac to show that the moon on that date could not have produced enough light for the witness to see anything clearly. The court took judicial notice of the amount of light available on that night due to the almanac’s inherent accuracy.

“A trial court, sitting as the trier of fact, may only consider knowledge acquired through the introduction of evidence or through judicial notice” People v. Barham, 788 NE 2d 297 – Ill: Appellate Court, 5th Dist. 2003

Judicial notice “operates to admit into evidence, without formal proof, those facts which are a matter of common and general knowledge and which are established and known within the limits of the jurisdiction of the court.” Palmer v. Mitchell, 206 N.E.2d 776 (Ill. App. Ct. 1965)

“[J]udicial notice is a branch of the law of evidence, and authorizes the court, whenever a fact is material, to take judicial notice of the fact, but it must be presented to the court in some way” People ex rel. McCallister v. Keokuk & Hamilton Bridge Co., 287 Ill. 246, 250-51, 122 N.E. 467 (1919)

“Courts may take judicial notice of matters which are commonly known or of facts which, while not generally known, are readily verifiable from sources of indisputable accuracy.” (Internal quotation marks omitted.) Murdy v. Edgar, 103 Ill. 2d 384, 394 (1984)

The point of judicial notice is that it’s just so much simpler to either agree to or take notice of the uncontested truth.

“[T]he extension of the doctrine of judicial notice to include facts which, while not generally known, are readily verifiable from sources of indisputable accuracy is an important aid in the efficient disposition of litigation, and its use, where appropriate, is to be commended.”  People v. Davis, 357 NE 2d 792 – Ill: Supreme Court 1976

Judicially Noticed Facts

In Illinois, evidence that can be admitted via judicial notice is a “judicially noticed fact”. “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.” Ill. R. Evid. 201(b)

A court can take judicial notice of ANYTHING whether someone asks for it or not at any time during the hearing or trial.

“When Discretionary. A court may take judicial notice, whether requested or not.” Ill. R. Evid. 201(b)

“Judicial notice may be taken at any stage of the proceeding.” Ill. R. Evid. 201(f)

Of course, if the judicially noticed evidence does not help one side’s case, that side will object to the admission of that evidence.

In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context” Ill. R. Evid. 103(a)(1)

Objections to judicial notice don’t have to be considered immediately like other objections. “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.” Ill. R. Evid. 201(e)

An objection to judicial notice will be heard after judicial notice is taken. If the objection is sustained, it is presumed that the judge will disregard the fact that he or she previously took judicial notice of.

Judicial notice often happens sua sponte, meaning that a judge announces they are taking judicial notice of a fact independently of being asked.“[A] trial judge may take judicial notice, sua sponte, of facts, as long as the judge makes clear during the course of the trial and not after the evidence is closed what facts and sources are included in the sua sponte notice” People v. Barham, 788 NE 2d 297 – Ill: Appellate Court, 5th Dist. 2003

“A party has the same right to rebut evidence admitted by sua sponte judicial notice as it does to rebut evidence introduced by the opposing party.” People v. Barham, 788 NE 2d 297 – Ill: Appellate Court, 5th Dist. 2003

The objection to judicially noticed facts is simple: Foundation and authentication.

Foundation is establishing sufficient preliminary evidence of the authenticity and relevance for the admission of material evidence . 

For example, breathalyzer tests have been held to be judicially noticed as accurate but still “may [only] be admitted as evidence of intoxication as long as a proper foundation for admitting such evidence has been laid.” People v. Buening, 592 NE 2d 1222 – Ill: Appellate Court, 5th Dist. 1992

Even after requiring laying foundation, Illinois courts eventually decided that foundation alone wasn’t sufficient to establish judicial notice if there’s an “unequivocal or undisputed viewpoint on the issue upon which a court can take judicial notice.” People v. McKown, 875 NE 2d 1029 – Ill: Supreme Court 2007

So, if you’re objecting and you’re stating you don’t agree with that viewpoint, the court probably cannot take judicial notice of that fact.

“Courts cannot take judicial notice of facts that are “doubtful or uncertain””. MOLINE SCHOOL DIST. NO. 40 BOARD v. Quinn, 54 NE 3d 825 – Ill: Supreme Court 2016

So, if there’s an objection, the court’s going to need a little more evidence to establish judicial notice.

“When Mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.” Ill. R. Evid. 201(c)

The “necessary information” would be particular to the fact you’re requesting the court take judicial notice of. If you wanted the court to admit the fact that water is two hydrogen atoms and one oxygen atom, you might provide the court with a chemistry textbook as “the necessary information.”

There is almost no Illinois case law on mandatory judicial notice. I presume this is because if a fact cannot come into evidence via agreed judicial notice, that fact will just be admitted via testimony and exhibits like any other piece of evidence.

It could be argued that “the necessary information” is always immediately available on Google. What fact cannot be googled? A Wikipedia page is essentially a peer reviewed listing of facts. Other sites, like Facebook, have no editorial filter and probably could never be used to create judicial notice of a fact.

If a fact can’t be admitted via judicial notice then that fact must must be authenticated like any other piece of evidence.

Authentication is “evidence sufficient to support a finding that the matter in question is what its proponent claims.” Ill. R. Evid. 901(a).

An Illinois court can take judicial notice of documents within the court file that have already been authenticated and/or stipulated to.

“A court will take judicial notice of its own records and the facts established therein.” City of East St. Louis v. Touchette, 14 Ill. 2d 243, 249 (Ill. 1958)

“The records and transcripts of the underlying action, of which the trial court was authorized to take judicial notice provided the necessary proof…there was no need to submit further evidence.” People v. Ernest, 141 Ill. 2d 412, 428 (Ill. 1990) (Citations Omitted)

This should give pause to anyone who files proposed exhibits that are self-authenticating as they could be used against you eventually.

There’s another way to get facts admitted with no fuss. Just send the opposing party a Request For Admission Of Fact. This list of proposed agreed facts could quickly resolve or allow focus on any factual issues in your Illinois divorce case.

Judicial Notice of Legislative Facts

In a court of law, the one thing that everyone should agree upon is what the law is. For this reason, the Illinois statutes outline what laws a court can take judicial notice of.

An Illinois court can take judicial notice of the statutes and rules within Illinois.

“Courts of original jurisdiction. Every court of original jurisdiction, in addition to the matters of which courts of original jurisdiction have heretofore been required to take judicial notice, shall take judicial notice of the following:
    All general ordinances of every municipal corporation within the State.
    All ordinances of every county within the State.
    All laws of a public nature enacted by any state or territory of the United States.
    All rules of practice in force in the court from which a case has been transferred by change of place of trial or otherwise.” 735 ILCS 5/8-1001

There will be a temptation to presume that this statute allows a court to take judicial notice of anything that an Illinois government body has ever published. Not every government document is an ordinance, however.

Non-ordinance government publications can be introduced into evidence via self-authentification.

The Illinois Rules of Evidence allows the admission of “reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report” Ill. R. Evid. 803(8)

An Illinois court can take judicial notice of laws and case law from other states.

“Common law and statutes. Every court of this state shall take judicial notice of the common law and statutes of every state, territory and other jurisdiction of the United States.” 735 ILCS 5/8-1003

The parties in a lawsuit can bring laws within and outside of Illinois to the court’s attention.

“Evidence as to laws of other jurisdictions. Any party may also present to the trial court any admissible evidence of such laws, but, to enable a party to offer evidence of the law in another jurisdiction or to ask that judicial notice be taken thereof, reasonable notice shall be given to the adverse parties either in the pleadings or otherwise.” 735 ILCS 5/8-1006

“A party desiring to have a fact judicially noticed should bring the matter to the attention of the court, on the record.” People v. Clifton, 11 Ill.App.3d 112, 114, 296 N.E.2d 48, 50 (1973).

“[A] trial court [is] required to take judicial notice of such ordinances once brought to its attention” Ralls v. Village of Glendale Heights, 233 Ill.App.3d 147, 157, 174 Ill.Dec. 140, 598 N.E.2d 337 (1992)

An Illinois divorce judge can even do its own due diligence and research the body of law independently.

“Information of the court. The court may inform itself of such laws in such manner as it may deem proper, and the court may call upon counsel to aid it in obtaining such information.” 735 ILCS 5/8-1004

If you have good law that works for the facts of your case, you can ask the court to take judicial notice of that law and apply it, no matter what the jurisdiction (caveat: Illinois law is always better). The court has to try its best to keep the various laws available consistent with eachother.

“[T]his Act shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.” 735 ILCS 5/8-1008

Foreign laws do NOT get judicial notice. This is especially important when determining the validity of a foreign marriage and/or divorce

“Foreign country. The law of a jurisdiction other than those referred to in Section 8-1003 of this Act shall be an issue for the court, but shall not be subject to the foregoing provisions concerning judicial notice.” 735 ILCS 5/8-1007

“Therefore, in Illinois, the laws of foreign counties must be pled and proven as any other fact.” Bianchi v. Savino Del Bene Intern. Freight Forwarders, 770 NE 2d 684 – Ill: Appellate Court, 1st Dist., 2nd Div. 2002

But when the court does rely on laws, whether within the state of Illinois or outside of Illinois, those reliances will be reviewable by the appellate courts.

“Ruling reviewable. The determination of such laws shall be made by the court and not by the jury, and shall be reviewable.” 735 ILCS 5/8-1005

In fact, this is exactly what appeals court are for: to make sure the trial court applied the law correctly.

If you have questions or concerns about how evidence works in an Illinois divorce hearing or trial, contact my Chicago, Illinois family law office to speak with an experienced Chicago divorce attorney.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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