Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office
JUDICIAL NOTICE (102)
Evidence Rule 201 -- Judicial notice of
Criminal Rule 27 -- Proof of Official Record;
Judicial Notice: Determination of Foreign Law.
State v. Kilgore,
175 Ohio App. 3d 665,
2008-Ohio-1162 – Defendant was convicted of violating a municipal ordinance
making it an offense to disobey a traffic control device. Officer testified that
the defendant was driving the wrong way on a one-way street, but did not testify
regarding the sign designating the street as one-way. Reversed. The existence of
the device is an essential element. In overruling the defendant‘s Rule 29(A)
motion the judge improperly took judicial notice of the officer‘s notes on the
back of the citation indicating a sign was visible. A citation is a charging
document and not evidence.
State v. LaFever, Belmont App. No. 02
2003-Ohio-6545 -- A trial court may not take judicial notice of earlier
proceedings, either in its own court or another court, except for the
proceedings in the immediate case under consideration. Judge reviewed other
files, then took judicial notice that the defendant's license was under
suspension. State was required to prove suspension. Reversed as evidence was
State v. Blaine, Highland App. No.
2004-Ohio-1241 -- In a prosecution for violation of a civil protection
order, the jury was told the order was stipulated, but it was unclear whether
this meant a copy could be admitted as an exhibit, or that the parties
stipulated the validity of the order. Defendant claimed this amounted to
improper judicial notice. Ambiguity in the record must be resolved in favor of
the defendant. Since the order was not in the same proceedings, judicial notice
New Middleton v. Yeager, Mahoning App.
No. 03 MA 104,
2004-Ohio-1549 -- Speeding conviction not supported by the evidence. Radar device was not identified. Thus the court could not take judicial
notice of its reliability. Nor was there testimony concerning its reliability or
that the officer had been trained in its use.
Cincinnati v. Levine,158 Ohio App. 3d
2004-Ohio-5992 -- A court may not take judicial notice of the reliability
of a speed measuring device based on demonstration of reliability in other jurisdictions.
At least once there must be testimony in a court of the county
that the device is reliable. Only after that has been done is judicial possible.
Brown v. Piper (1875), 91 U.S. 37, 42 --
"Of private and special facts, in trials in equity and at law, the court or
jury, as the case may be, is bound carefully to exclude the influence of all
previous knowledge. But there are many things of which judicial cognizance may
be taken...Among the things of which judicial notice is taken are the law of
nations; the general custom and usages of merchants; the notary's seal; things
which must happen according to the laws of nature; the coincidence of the days
of the week with those of the month; the meaning of words in the vernacular
language...Courts will take notice of whatever is generally known within the
limits of their jurisdiction..."
Ohio v. Doles (1980), 70 Ohio App. 2d 35
-- Headnotes: "(1) In order for judicial notice to be taken, the fact must be
one of common knowledge throughout the jurisdiction of the court. (2) Where
there is no testimony as to the construction of a speed measuring device not
the subject of judicial notice, the testimony of the user that he operated
the device as instructed is insufficient
to sustain a conviction for speeding. Also see State v. Colby (1984), 14
Ohio App. 3d 291.
Strain v. Isaacs (1938), 59 Ohio App. 495,
515 -- "...(J)udicial notice is taken only of those matters which are 'commonly'
known, and therefore individual knowledge of a fact upon the part of a judge,
not a matter of common knowledge, will not dispense with proof of such fact and
can not be resorted to for the purpose of supplementing the record."
Euclid v. Mabel (1984), 19 Ohio App. 3d
235 -- Evidence Rule 201(E) gives parties the right to be heard as to the
propriety of the court taking judicial notice.
State v. Williams (1997), 119 Ohio App. 3d
512, 516 -- Trial court held to have erroneously granted motion to suppress
based on findings by other courts with respect to a solution used for
calibration of breath testing machine: "A trial court is free to rely on the
logic of courts outside its appellate district in rendering a decision.
However, other such decisions are merely persuasive in rendering a decision.
Although not technically judicial notice, the trial court accepted the factual
findings of other courts outside its appellate district. A trial court can only
take notice of its own factual findings, based on the evidence before the court
until appropriate precedent has been established within its own district or by
the Supreme Court of Ohio. Otherwise, such factual findings are insufficient as
a matter of law."
Village of Moreland Hills v. Gazdak
(1988), 49 Ohio App. 3d 22 --Headnotes: "(1) The taking of judicial notice in
one jurisdiction cannot serve as proper judicial notice in another jurisdiction.
(2) Judicial notice of the accuracy of a specific model of radar device cannot
automatically be extended to warrant judicial notice of the accuracy of another
model of radar device in another case." Also see City of East Cleveland v.
Ferrell (1958), 168 Ohio St. 298.
State v. Scott (1965), 3 Ohio App. 2d 239
-- Headnotes 1 and 2: "(1) Courts may take judicial notice of geographical facts
which are matters of common knowledge, particularly those existing within the
jurisdiction of the court. (2) A court will take judicial notice of the limits
of its jurisdiction and the extent of the territory therein included."
Brown v. Cleveland (1981), 66 Ohio St. 2d
93, 98 -- A court may on occasion take judicial notice of undisputed facts. Also
see Euclid v. Mabel (1984), 19 Ohio App. 3d 235, 240.
City of Hubbard v. Luchansky (1995), 102
Ohio App. 3d 410 -- While an appellate court may take judicial notice of a
matter even if the trial court failed to do so, this has generally been limited
to matters bearing on legal issues. Noting the lack of Ohio authority on point,
court elects to follow precedent from other states that where a trial court has
failed to take judicial notice of a matter bearing on an issue of fact, the
appellate court will not take judicial notice of that matter.
State v. Mays (1992), 83 Ohio App. 3d 610
-- Appellate court takes judicial notice of entry in the Physicians Desk
Reference as to the make up of Betadine, finding the accuracy of the source
cannot reasonably be questioned.
Maloney v. Maloney (1986), 34 Ohio App. 3d
9 -- Headnote 2: "A court may not take judicial notice of arrearages in alimony
payments as stated in official records of the court's bureau of support.
Instead, the records must be authenticated and admitted into evidence..." Also
see Pruden-Wilgus v. Wilgus (1988), 46 Ohio App. 3d 13.
Country Club Hills Homeowner's Association v.
Jefferson Metro. Housing Authority
(1981), 5 Ohio App. 3d 77 -- A party may not avoid its burden of proof by asking
for judicial notice of a fact the court would have to research public records to
State v. Mendieta (1984), 20 Ohio App. 3d
18, 19 -- When the judge sits as trier of fact, he may take judicial notice of
the meaning of an intoxilyzer reading. Compare State v. Scheurell (1986),
33 Ohio App. 3d 217 and Toledo v. Raider (1983), 14 Ohio App. 3d 198, 200
requiring expert testimony to interpret test results at a jury trial where
impaired driving is at issue.
State v. Bechtel (1985), 24 Ohio App. 3d
72, 73 -- The court of appeals, having previously taken judicial notice of the
dependability of a particular model of radar unit, finds trial court in a
subsequent case properly took judicial notice of reliability of the same unit.
Also see State v. Ayesh (1985), 24 Ohio App. 3d 73.
State v. Freeman (1985), 24 Ohio Misc. 2d
7 -- Headnote 2: "Judicial notice of the accuracy or dependability of a K-55
radar device may not be taken when the trial court has never in any case
previously before it received expert evidence and determined that the device is
dependable and accurate, and such issue has not been passed upon by the
appellate court." Also see Cincinnati v. Dowling (1987), 36 Ohio App. 3d
State v. Zeh (1982), 7 Ohio App. 3d 235,
237 -- Court could properly take judicial notice that a broadcast by a radio
station was a presentation to the general public. "A court may take judicial
notice of an adjudicative fact, whether requested or not, at any stage of the
proceedings." Also see Pepper Pike v. Felder (1989), 51 Ohio App. 3d 143,
147 -- 8:00 a.m. is rush hour.
State v. Montgomery (1984), 17 Ohio App.
3d 258 -- Headnote: "The 'maximum daily dose' used to establish bulk amount
under R.C. 2925.01(A)(8) must be either stipulated or proved to be in the usual
dose range specified in a standard pharmaceutical reference manual by
expert testimony or properly proven copy of the manual. It cannot be established
by judicial notice."
D&B Immobilization v. Dues (1997), 122
Ohio App. 3d 50 -- A court may only take judicial notice of prior proceedings in
the same case. When a court sua sponte takes judicial notice of other
proceedings, it does not become a part of the record permitting appellate review
of the correctness of the trial court's interpretation of the prior case.
In re Carlos O. (1994), 96 Ohio App. 3d
252 -- Proof of prior convictions for purposes of penalty enhancement requires
presentation of evidence, and may not be accomplished through judicial notice.
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