Permitted Sources of Fact

A judge who may not investigate still has to decide the case from something, and Rule 2.9(C) says what: the judge “shall consider only the evidence presented and any facts that may properly be judicially noticed.”¹ The rule names two foundations and no others. One is what the parties put before the court. The other is a narrow class of facts a court may accept without proof because no one could reasonably dispute them. A fact the judge merely happens to know about this dispute, however reliable, falls outside both.

The two sources share a feature that explains the choice: each works in the open, where the parties can answer. Evidence arrives in the courtroom, so the opposing side can object, cross-examine, or reply with proof of its own. Judicial notice reaches only facts so indisputable that a challenge would have nothing to stand on. A fact that can be contested must come in as evidence, where testing is available. The test for any fact a judge relies on is whether the parties could see it coming and answer it.

Evidence Presented

The first permitted source is “the evidence presented,” which means the material the parties place before the court through the ordinary channels of the proceeding.² That includes witness testimony given in court, exhibits the court receives, and stipulations, which are agreements between the parties that a fact is established so neither side must prove it. Each item reached the judge the same way: a party offered it, or both parties agreed to it, in a proceeding where the other side was present.

That route of entry is why the rule is drawn around the record. Each side knew what the other offered, could object to it, and could meet it with contrary proof. A decision built on that material rests on facts open to challenge, and the record shows exactly what the decision depended on. The rule also leaves the center of the judge's work untouched. Evidence presented is what the judge must weigh, deciding which witnesses to believe and how much an exhibit proves. A judge may find a witness unconvincing or discount a document as informal, because the restriction governs where facts come from and says nothing about how persuasive they must be found.

Both judges were dissatisfied with the same proof. The first weighed what the parties had offered; the second went out and got more. A judge's freedom to discount weak evidence is complete, while any freedom to supplement it from outside the record does not exist.

Judicial Notice

The second permitted source is “any facts that may properly be judicially noticed,” and the word properly carries the weight.⁴ Judicial notice lets a court accept a fact as true without anyone offering proof of it, but only a fact beyond reasonable dispute qualifies. Under the usual formulation in the evidence rules, that means a fact generally known within the court's territorial jurisdiction, or one that can be determined accurately and readily from sources whose accuracy cannot reasonably be questioned. A fact that clears the bar needs no witness and may reach the decision even though no party offered it.

The doorway is narrow because of what testing evidence is for. Cross-examination, objection, and rebuttal exist to expose error, and when a fact is beyond reasonable dispute there is no error to expose. No cross-examination could accomplish anything about the day of the week on which a calendar date fell. Letting the judge accept such a fact therefore costs the adversarial process nothing. The same reasoning fixes the limit. Once a fact is contestable, as a medical opinion or a business practice can be, the parties have real work to do, and noticing the fact would take that question away from them and give it to the judge.

The boundary shows up in Rowe v. Gibson, where the majority of an appellate panel cited Internet evidence in its opinion, and a dissenting judge objected that by doing so the majority had “gone well beyond the appropriate role of an appellate court.”⁵ Judge Posner disagreed: “We are not deeming the Internet evidence cited in this opinion conclusive or even certifying it as being probably correct, though it may well be correct since it is drawn from reputable medical websites. We use it only to underscore the existence of a genuine dispute of material fact.”⁶

What Judge Posner did not say is as instructive as what he said. He did not claim that the websites contained facts the court could simply notice and treat as settled. He disclaimed treating them as conclusive, or even as probably correct, and said he used them only to show that a dispute existed. Reputable sources, in other words, were not offered as the kind of source that makes a fact indisputable. He defended the move by pointing to the lack of “parity between the adversaries” and his unwillingness to “fetishize adversary procedure in a pure eighteenth-century form.”⁷ That is a sympathetic motive, and whether it justified the research is exactly what the dissent disputed. A good motive does not turn a contestable fact into a noticeable one.

Judicial notice is the only doorway through which a judge's own knowledge or lookup can lawfully reach a decision, and that resolves an apparent tension with the ban on investigation. A judge who checks a calendar is doing something that looks like research, yet the rule permits it because the fact belongs to a class the rule itself names. What decides the matter is the character of the fact, not the effort the judge made or the medium the judge used. That the judge happens to know a fact, that a source looks reliable, or that the fact would help reach the right result each fails to qualify, because none shows the fact is beyond reasonable dispute. A fact that falls short has one lawful route into the decision: a party must offer it as evidence, where the other side can test it.