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Criminal Law Casebook
Franklin County Criminal Law Casebook
Reproduced with permission from:
Timothy E. Pierce
Franklin County Public Defender Office
Evidence Rule 201 -- Judicial notice of adjudicative facts.
Criminal Rule 27 -- Proof of Official Record; Judicial Notice: Determination of Foreign Law.
State v. Kilgore
, 175 Ohio App. 3d 665,
– 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 BE 71,
-- 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 insufficient.
State v. Blaine
, Highland App. No. 03CA9,
-- 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 was improper.
New Middleton v. Yeager
, Mahoning App. No. 03 MA 104,
-- 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 657,
-- 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
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 determine.
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 198.
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
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.
Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
Contents may not be duplicated without express permission.