Chapter 5: Judicial Notice
Case Study 1
Overview — Based on: State v. Lacy, 2017 Tenn. Crim. App. LEXIS 375 (2017).
The female defendant entered a preliminary plea of guilty to one count of abuse of a corpse, a Class E felony. The prosecutor summarized the facts of the offense basically as follows: On October 19, 2014, officers started an investigation at the Gus’s Fried Chicken on North Germantown Road in Bartlett, Tennessee. A motorist had found the remains of a deceased newborn infant in the alley behind the restaurant. Officers located a clear plastic bag with what appeared to be blood inside the bag as well as an infant’s body. The umbilical cord was attached to the infant, and it appeared that the body of the infant had been run over by a vehicle.
Officers traced this in their investigation to the interior of the restaurant to a women’s restroom inside. They were told that the defendant was possibly pregnant, although it was not known for sure by coworkers. The store employee was contacted and advised that there had been a miscarriage that had happened in the women’s restroom and the defendant had left work early on that occasion. The officers tracked down the defendant, who told officers that she knew why they were there. She stated that she had had a miscarriage and had put the baby in the dumpster behind the restaurant and said that she had placed the body of the infant in the plastic bag.
As is the usual case, the medical examiner investigated to determine the cause of death, but medical evidence could not determine cause of death. The medical examiner’s office concluded that there was no way to say whether the infant had been born alive or had been stillborn. The defendant was not charged with any form of homicide, but was charged with the offense of abuse of a corpse, which was the charge that the prosecution believed that the evidence could prove. Consistent with a defense motion, the prosecution agreed that the defendant qualified for diversion, but indicated that the government was not going to allow or agree to that type of disposition of the case.
At a pretrial hearing, the trial judge stated that she was not prepared to rule on the defendant’s request for judicial diversion. The judge ordered the defendant to take parenting classes and undergo counseling and asked the defendant to provide the court with written reports from a medical doctor and a psychologist. The judge continued the case several times without rendering a disposition. During the intervening 11 months, the defendant underwent two mental health evaluations and attended counseling.
At the disposition hearing, the trial judge denied the defendant’s request for diversion, ultimately concluding that the court wanted some notice in the public record that the defendant had a criminal conviction, in the unlikely situation that the defendant’s behavior might be repeated with a future pregnancy. Based on no evidence that was presented, the judge noted that she had a “very, very deep concern” for the safety of the defendant’s other children.
Although no party to this case had requested that the judge take judicial notice of other similar cases, similar situations, or dispositions, the judge indicated that she had conducted some individual research on similar types of cases. She indicated that, based on her research, there was some need to deter not only the defendant, but other potential defendants. This outside-court research was conducted independently by the judge and was beyond the trial record. It appeared that the judge, effectively, took judicial notice of similar cases from newspapers and other sources and relied upon those cases in coming to a decision in this particular case. There is a general rule that judicial notice is not necessarily based on the personal knowledge of a judge and should not be based upon information that is known only to the particular judge.
In other cases similar to this one, the defendants had been prosecuted for murder or similar offenses. The judge noted that she had pondered the case, and, in conjunction with her outside-the-record research on cases that were similar to the defendant’s case, had arrived at a conclusion. The judge stated:
There is a huge number, in terms of the increase of the number of women who are being prosecuted exactly for this same type of offense. And they are not going as far as we went on this case. They have a woman who has recently had a baby, or a miscarriage, or was pregnant and if they can find the fetus, or the baby, they are prosecuting murder one, across this country, in numbers that you would not believe. And I do not want the same thing to happen to her.
The trial judge ordered that the defendant serve one year of “intensive” supervised probation and denied diversion that would not have involved a criminal conviction.
With concerns that she was improperly denied diversion from prosecution, defendant Lacy contended that the trial court erred in several ways by denying her motion for judicial diversion. Among other theories, defendant Lacy contended that improper use of judicial notice motivated the judge to deny the motion for diversion from prosecution.
No. A trial judge is permitted to take judicial notice of adjudicative facts that are well known to most people. Judges may consider as judicial notice matters that are of common knowledge to everyone, but cannot base decisions on their own personal beliefs. According to the reviewing court, there was no evidence in the record of this case that supported the trial court’s finding of a significant increase in the occurrence of cases that were similar to the defendant’s case. The appellate court indicated that there was significant legal authority for the proposition that a judge is not permitted to use from the bench, under the guise of judicial knowledge, knowledge that the judge has gained from observations outside of judicial proceedings, such as independent research. The reviewing court stated that:
Judicial knowledge upon which a decision may be based is not the personal knowledge of the judge, but the cognizance of certain facts the judge becomes aware of by virtue of the legal procedures in which he plays a neutral role. No judge is at liberty to take into account personal knowledge which he possesses when deciding upon an issue submitted by the parties. In other words, “[i]t matters not what is known to the judge personally if it is not known to him in his official capacity.” Vaughn v. Shelby Williams of Tenn., Inc., 813 S.W.2d 132, 133 (Tenn. 1991) (citations omitted).
A Tennessee trial judge is not permitted to use the concept of judicial notice to accept as true hearsay statements contained in newspapers or other similar sources, as was done by the trial judge in this case. The reviewing court noted that judges are not permitted to take into account personal knowledge that judges happen to possess or have personally acquired when making pretrial or during-trial decisions. Judicial notice may be based on common knowledge or upon facts that are not subject to reasonable dispute in the relevant community of knowledge, whether requested by the parties or upon the judge’s own motion.
Since the trial judge had committed reversible error and because the reviewing court held that there was sufficient evidence in the appellate record that would permit it to give a trial de novo (abrand-new look at the case), it was appropriate for the appellate court to make a determination considering whether diversion was an appropriate resolution to this case.
The reviewing court indicated that the defendant’s story had remained consistent throughout the case and there was no reason to doubt her version of the facts. There was no reason to doubt that she believed her baby had been born dead and that she was disoriented at the time of the miscarriage and thereafter. She had no prior criminal record, and she had complied with all the requirements of the trial court prior to the entry of judgment. With the removal of the trial judge’s improper use of judicial notice and, in conjunction with the facts on the record, the appellate court determined that diversion from criminal prosecution was appropriate resolution of the case.
See Chapter 5, Section 5.3 and 5.4.
Case Study 2
Overview — Based on: DeLong v. State, 310 Ga. App. 518, 2011 Ga. App. LEXIS 605 (2011).
Defendant DeLong challenged a judgment of the trial court, which convicted him of child molestation; violating Georgia’s Controlled Substances Act by distributing a Schedule IV drug, Zolpidem, commonly known as Ambien; and influencing witnesses. The appellate court reviewed the case and determined that the convictions for drug distribution and influencing witnesses could not be sustained. The prosecution failed to prove that the Georgia statute regulated the drug, Ambien. There was no testimony or physical evidence presented by the prosecution that Ambien was the trade name for Zolpidem. Although the prosecution offered evidence that the defendant admitted to distributing Ambien and introduced testimony that Ambien was a Schedule IV controlled substance, the defendant contended that the government was required to identify “Ambien” as a trade name for Zolpidem through admissible evidence and that taking judicial notice that “Ambien” was a trade name for Zolpidem was not appropriate. In essence, defendant DeLong contended that the prosecution failed to prove that he violated the Controlled Substances Act because while Zolpidem was listed as a controlled substance, Ambien was not, and there was no testimony or physical evidence presented by the prosecutor at trial linking Ambien to Zolpidem.
No. The fact that a generic scientific name may also indicate an identical formulation produced in a trade name drug is not considered an appropriate topic for the taking of judicial notice. In Georgia, courts have previously held that the trade name of a statutorily designated controlled substance is not the proper subject of judicial notice. The Georgia prosecutor could have easily avoided the reversal of this conviction by simply asking one more question of the investigator who identified Ambien as a Schedule IV Controlled Substance or by introducing physical evidence linking the trade name “Ambien” to its statutorily listed equivalent, Zolpidem.
Yes. Scientific facts that are readily verifiable or are beyond reasonable dispute can be the subject of judicial notice either at the trial court level or at any appellate level. Since there seems to be virtually no dispute that Ambien and Zolpidem are the same chemical composition, and a resort to a standard reference work would have confirmed this undisputed fact, judicial notice could arguably be appropriate in this case, although the Georgia courts disagreed.
See Chapter 5, Sections 5.4 and 5.7.