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Judicial Notice of a Court’s File does NOT Circumvent Inadmissible Hearsay

Posted by David Adelstein on September 26, 2015


Judicial notice is the “cognizance of certain facts which judges or jurors may properly take and act upon without proof, because they already know them.” Wyatt v. State, 270 So.2d 47, 48 (Fla. 4th DCA 1972) (quotation and citation omitted).

A court may take judicial notice of “[r]ecords of any court of this state or of any court of record of the United States or of any state, territory, or jurisdiction of the United States.” Fla.Stat. s. 90.202(6).

However, just because a court can take judicial notice of records in the court’s file cannot be used to circumvent otherwise inadmissible hearsay statements included within the court’s file. To this point, the Florida Supreme Court explained that otherwise inadmissible documents do not automatically become admissible simply because the inadmissible documents were included in the judicially noticed court file. Stoll v. State, 762 So.2d 870, 876 (Fla. 2013) (handwritten statement in court’s file was hearsay and not properly admissible into evidence just because it was in a judicially noticed court’s file).

In a more recent case dealing with a mortgage foreclosure, Tomlinso v. GMAC Mortgage, LLC, 2015 WL 5124763 (Fla. 2d DCA 2015), the homeowner argued that the mortgagee did not have standing to enforce the promissory note (and mortgage) because it was not the original lender and there was no evidence that the mortgagee otherwise held the note at the time of the foreclosure complaint. The trial court after a bench trial entered judgment in favor of the mortgagee. The appellate court reversed agreeing with the homeowner that the mortgagee failed to establish it held the note at the time of the foreclosure complaint. The mortgagee argued on appeal that the court took judicial notice of the court’s file and in the file was a letter the mortgagee sent to the homeowner establishing it held the note at the time of the foreclosure complaint.   The problem was the letter was hearsay (an out-of-court statement offered to prove the truth of the matter asserted) that was never introduced or properly admitted during trial; the foundation was not laid to get this letter admitted into evidence at trial. Stated another way, just because the letter was included in the judicially noticed court file did not mean that everything in the court’s file was admissible evidence.

When it comes to hearsay statements, parties still must ensure the statement or document is stipulated into evidence or the proper foundation is laid at trial to admit the statement or document into evidence.



Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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