Del. R. Evid. 201 (2026)

Rule 201(f) largely tracks F.R.E. 201(f) except that the words “upon request” were added at the beginning and the last sentence of F.R.E. 201(f) was deleted.

The purpose of the changes from the F.R.E. is to make clear that a request for a jury instruction is required before reversible error is normally present and to eliminate any distinction between criminal and civil cases.

Article IV, § 19 of the Delaware Constitution states: “Judges shall not charge juries with respect to matters of fact, but may state the questions of fact in issue and declare the law.”

The Committee agreed that once a fact is judicially noticed, no evidence to rebut that fact shall be permitted, but an objection to the taking of judicial notice of a fact should be considered by the judge before he agrees to take judicial notice.

See Barks v. Herzberg, 58 Del. 162, 206 A.2d 507 (Supr. 1965), holding that if a judge inquires into facts outside the record he should do so only with full notice to counsel with opportunity to comment.

For prior Delaware cases illustrating the law covered by Rule 201(b), see: Judicial notice not taken: Wolf v. Keagy, Del. Super., 136 A. 520 (1927); Charles Tire Co. v. Owens, Del. Super., 186 A. 737 (1936); Bigger v. Unemployment Comp. Comm’n, Del. Super., 46 A.2d 137 (1946); Weinberg 6

v. Hartman, Del. Super., 65 A.2d 805 (1949); Jackson v. Hearn Bros., Del. Supr., 212 A.2d 726 (1965); Hutchins v. State, Del. Supr., 153 A.2d 204 (1959); Fahey v. Sayer, Del. Supr., 106 A.2d 513 (1954); Hunter v. Quality Homes, Del. Super., 68 A.2d 620 (1949); LeGates v. Ennis, Del. Super., 180 A. 325 (1935); Downs v. Commissioners of Town of Smyrna, Del. Super., 45 A. 717 (1899); In re Fusco, Del. Orph., 127 A.2d 468 (1956); State v. Tootle, Del. Gen. Sess., 128 A. 484 (1837). See also McGraw v. Corrin, Del. Supr., 303 A.2d 641 (1973); Opinion of the Justices, Del. Supr., 216 A.2d 668 (1966).

D.R.E. 201 was amended in 2017 in response to the 2011 restyling of the Federal Rules of Evidence. The amendment is intended to be stylistic only. The pre-2017 “Comment” to D.R.E. 201 was revised only as necessary to reflect the 2017 amendments. There is no intent to change any result in ruling on evidence admissibility.

Rule 202. Judicial Notice of Law. (a) Judicial Notice of Laws. Every court in this State must take judicial notice of the United States Constitution, case law relating thereto, and the Constitution, common law, case law and statutes of this State. (1) Every court in this State may take judicial notice of the common law, case law and statutes of the United States and every state, territory and jurisdiction of the United States. (2) Reasonable notice of a request for judicial notice must be given to the adverse parties. (b) Information of the Court. The court may inform itself of the laws identified in paragraph (a) of this Rule in any manner that it deems proper. The court may call upon counsel to aid it in obtaining this information. (c) Ruling Reviewable. The determination of the laws identified in paragraph (a) of this Rule must be made by the court and not by the jury. The determination is reviewable on appeal. (d) Private Acts, Regulations, Ordinances, Court Records. (1) The court may, without request by a party, take judicial notice of (A) the private acts and resolutions of the Congress of the United States and of the General Assembly of this State, and of every other state, territory and jurisdiction of the United States; (B) the duly enacted ordinances and duly published regulations and determinations of governmental subdivisions or agencies of the United States, of this State and of every other state, territory and jurisdiction of the United States; and 7

(C) the records of the court in which the action is pending and of any other court of this State or federal court sitting in or for this State. (2) In the following circumstances, judicial notice must be taken of each matter specified in this rule: (A) a party requests it; (B) the requesting party furnishes the court sufficient information to enable the court properly to comply with the request; and (C) the requesting party has given each adverse party notice of the request in the pleadings or at least 20 days before the trial. The court, however, may permit the requesting party to give notice at any time in the interest of justice. (e) Notice, Information, Ruling on Laws of Foreign Country. A party who intends to raise an issue concerning the law of a foreign country must give notice in the pleadings or other reasonable written notice. In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under these Rules. The court’s determination is treated as a ruling on a question of law. Comment This rule is new and does not appear in the F.R.E. or U.R.E. The material has been covered in the past by 10 Del. C. §§ 4305, 4307, 4308, 4312, 4313 and 4314, which should now be repealed since the provisions of those sections are covered by these rules. It is intended that this rule shall expand and make easier the introduction of evidence of the Constitution, statutes, common law and case law of this State, of the United States and of other states, countries and jurisdictions.

It is the intention of this rule to encourage the admissibility of evidence of law rather than to discourage it. The only limitation imposed is that notice of the law of other jurisdictions sought to be relied upon should be given to all parties at a reasonable time.

This rule provides that the courts of this State shall take judicial notice, with or without request, of the statutory, common and case law of this State and the constitutional law of the United States. Judicial notice of the law of the United States and other jurisdictions of the United States may also be taken. It is based on 10 Del. C. § 4313(a) and the Uniform Judicial Notice of Foreign Law Act.

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Rule 202(d) is based on old U.R.E. 9(2) and New Jersey Evidence Rule 9(2)(3).