New Section 90.2035 Judicial Notice

Some judicial notice is mandatory ("shall take judicial notice") and includes constitutions, case law, statutes, and various rules of court. Section 90.201. Other provisions are seemingly permissive ("may take judicial notice"). Section 90.202. However, the "may" in 90.202 can be rendered a "shall" by an appropriate request as described in Section 90.203. This includes in section 90.202 a broader variety of court rules, foreign laws, court records, rules of governmental agencies (such as the 60Q Rules of Procedure for Workers' Compensation Adjudication), and "official acts" of the national and state governments. Often litigators forget that the OJCC is part of "state government" and takes "official acts" that might be worthy tools in a given case (notices, orders, etc.). Also included is a catch-all for "facts that are not subject to dispute." That last one is a bit subjective perhaps. 

The Florida Legislature took an interest in judicial notice in the 2022 session. Senate Bill 634 was passed and ordered "enrolled" on March 4, 2022. (It is labelled "CS for CS for SB 634," meaning that what passed was a "committee substitute" for a "committee substitute" for the originally filed bill - there were significant amendments during the process). It awaits presentment to the Governor for consideration.

The bill creates a new section of the Florida Evidence Code, section 90.2035. It is specifically focused upon the progress we have all lived through in the last 30 years, and the presence of information on the world wide web (Internet). It is permissive ("may"), and relates to "an image, map, location, distance, calculation, or other information taken from a widely accepted web mapping service, global satellite imaging site, or Internet mapping tool." The first notable caveat is that such image must "indicate() the date on which the information was created."

Section 90.2035, created by CS/CS/SB 634, is reasonably detailed. It requires a notification of the intent to "offer such information," which must include specifics regarding where the data may be located on the Internet. Moreover, the section is careful to remind that such a notification can be opposed by another party with an objection (which is seemingly absent from other judicial notice rules). Despite the right to object, the new Code section leans in favor of such information.

It provides that "in civil cases, there is a rebuttable presumption that information sought to be judicially noticed . . . should be judicially noticed." An opposing party would have to demonstrate by a "greater weight of the evidence" that the information is not portrayed "fairly and accurately" in order to overcome that presumption. There might be significant expense involved with travel to and photography of such a site to rebut the accuracy presumption. If such an objection is overruled, then the "may" turns to "must take judicial notice." In the criminal context, additionally, the "court must instruct the jury that the jury may or may not accept the noticed facts as conclusive."

It is notable that Florida has both an Evidence Code passed by the Legislature and Evidence Rules adopted by the Supreme Court. See To D or not to D? that it appears, is the Question (January 2016); See also Dissing Daubert (January 2019), and Daubert's New Day (May 2019). In short, it remains up to the Florida Supreme Court to incorporate the Legislature's Code change into the Rules, or not.

What is the practical impact of such a change? The appearance of an intersection or road might be pulled from such a web platform to help the finder of fact with context and background regarding an accident site. The appearance of traffic warnings, road markings, and more might be readily presented in such a form. This is likely why the new Code section requires the presence of "the date on which the information was created," because progress is all around us perhaps. In a more general sense, one might use such an image to portray the outward appearance of a business/structure (before a storm or after), the location of adjacent or close businesses/structures, and the general topography of the land.

The main benefit to the litigant, of course, is the ease with which such images might be obtained. The cost of travel to such a location, preparation of photographs, and then provision of an evidentiary predicate to admit such photographs is likely largely avoided by this new provision. See Internet, Evidence, and Admissibility (December 2019), Better Understanding the Hearsay Rule (March 2016) and Hearsay and Authenticity (March 2020). Smart litigators will take heed when this is signed into law.

The process, of course, is not concluded. The Governor has not been presented with the bill, and a veto is always possible. However, this bill is one that may create law that any litigator in Florida should remain aware of in preparing for trial. 

By Judge David Langham

Courtesy of Florida Workers' Comp