Generally, an appellate court may consider only those facts contained in the record on appeal. However, there are a few exceptions to this rule. One exception allows an appellate court to take judicial notice of court records in the same matter (including records of the appellate court itself and the court below) as well as in different matters.
Thus, for example, although a stipulation was not in the record on the parties’ second appeal, New York’s Appellate Division, First Department, took judicial notice of the record in a prior appeal, which established the stipulation’s terms. In another case, in which a newspaper publisher sought access to transcripts of hearings in a capital murder case, the Appellate Division, Fourth Department, took judicial notice of the fact that the defendant was convicted of first degree murder for killing his wife and was sentenced to the death penalty. (Although these examples are from New York cases, federal courts and the courts of other states generally follow the same rules concerning judicial notice.)
It’s important to keep in mind that, while an appellate court can take judicial notice of: (1) the fact that a paper was filed (along with the date of filing); and (2) the fact that a statement was made in a filed paper, an appellate court will not take judicial notice of a disputed fact contained in filed papers that are outside the record (just as it would not take judicial notice of a disputed fact contained in the record). Thus, the judicial notice exception is not a panacea for a failure to make a complete record before the court below.