Trust Me, I’m a Judge: Why Binding Judicial Notice of Jurisdictional Facts Violates the Right to Jury Trial

55 Pages Posted: 23 Sep 2011 Last revised: 16 Nov 2012

Date Written: 2003


The conventional model of criminal trials holds that the prosecution is required to prove every element of the offense beyond the jury's reasonable doubt. The American criminal justice system is premised on the right of the accused to have all facts relevant to his guilt or innocence decided by a jury of his peers. The role of the judge is seen as limited to deciding issues of law and facilitating the jury's fact-finding. Despite these principles,judges are reluctant to submit to the jury elements of the offense that the judge perceives to be . routine, uncontroversial or uncontested.

One such element is found in federal criminal statutes that require proof that the offense occurred within the federal government's "special maritime and territorial jurisdiction." Judges routinely decide this jurisdictional element themselves, presumably believing that it would be a waste of time to submit such a picayune issue to the jury, given that federal jurisdiction over land simply does not feel like other "substantive" elements of the offense. Thus, where the federal offense of kidnapping is charged, for example, the court may remove from the jury the issue of whether the kidnapping occurred within an area subject to federal jurisdiction, despite the fact that the statute explicitly makes this an element of the offense. This seems to be a valid, common-sense judgment until one realizes that the mere denomination of land as "federal" does not necessarily fulfill the jurisdictional element of the offense. Federal military bases, for example, may contain land that does not meet the constitutional and statutory requirements for federal jurisdiction, either because of procedural defects at the time of acquisition or because jurisdiction was subsequently ceded.

Judges have traditionally been permitted to decide a limited class of factual issues themselves, even in criminal cases. By incorporating the common law mechanism of judicial notice into Federal Rule of Evidence 201, Congress intended that federal judges, in the interest of efficiency, be permitted to resolve certain generally known or readily ascertainable facts themselves instead of submitting such issues to the jury. Congress, however, also placed an important limitation on judicial notice in criminal cases. Rule 201(g) provides that "[i]n a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed." Federal courts, therefore, may take judicial notice in criminal cases, but must instruct the jury that they are free to disregard the court's judicial notice and find the matter not proven. While this limitation may be somewhat inelegant, given that a judge must submit facts to the jury in a criminal case that she could decide herself in a civil case, it is required if judicial notice is to be permitted in criminal cases. Without such a limitation, federal courts could effectively direct verdicts in favor of the prosecution, which is clearly prohibited by the Sixth Amendment.

While the Federal Rules, in theory, adequately protect the right to jury trial, federal courts in practice routinely issue partial directed verdicts in favor of the prosecution on the jurisdictional element of federal offenses. This trend toward diminishing the jury's role with regard to jurisdictional elements of federal crimes is in substantial tension with the Supreme Court's recent reinvigoration of the jury's role in the sentencing context.s This Article contends that the predominant practice of federal courts of completely removing the jurisdictional element from the jury violates the Sixth Amendment right to jury trial and Rule 201.

Keywords: Sixth Amendment, Due Process Clause, fair trial, judge, jury, Apprendi v. New Jersey, judicial notice, Ring v. Arizona, special territorial jurisdiction, jurisdictional element, Rule 201, separation of powers, 18 USC 7, legislative facts, adjudicative facts, harmless error, structural error

JEL Classification: K00, K19, K39

Suggested Citation

Carter, Jr., William M., Trust Me, I’m a Judge: Why Binding Judicial Notice of Jurisdictional Facts Violates the Right to Jury Trial (2003). Missouri Law Review, Vol. 68, p. 649, 2003, Temple University Legal Studies Research Paper, Available at SSRN:

William M. Carter, Jr. (Contact Author)

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States
412-648-1420 (Phone)

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