A New Paradigm for Understanding Judicial Notice and Its Implications in the Modern Digital Era

תקציר

Judicial notice is the legal term in English for what is known in Israeli law as “judicial knowledge,” yedia shiputit. In our view, the terminology gets at the crux of the matter before us: what does judicial notice mean? Is there such a thing as judicial notice which may be presumed without facts (henceforth, “the irrefutable model”)? Does the application of judicial notice require some sort of warning or alert that it is about to commence? Would giving each side the opportunity to present arguments justifying or rebutting this notice not be a more appropriate alternative, based on the circumstances of the case (henceforth, “the participative model”)? It appears that the basis of the exemption from bringing proof lies in the following assertion: judicial notice is an exception to the great principle that in law, facts must be offered into evidence. Therefore, it is used sparingly, in cases in which the execution of a full probative procedure is unanimously viewed as not exigent. These cases are self-evident, requiring no proof, and every individual who has been educated to the average contemporary standard is aware of them; alternatively, these are easily discoverable, detailed data, to be gleaned by referring to authoritative, undisputed sources. According to this approach, the exemption from a full probative process introduces basic, widely-accepted information into the legal proceedings, subject to no substantial dispute as to its nature, with the intent of making the judicial proceedings speedier, simpler and more effective, accommodating them to the basic worldview shared by the majority of the public and prevailing in that time and place.