Judicial Notice

This week of research raises a question of whether judicial notice is taken in Texas when the scientific principles behind LIDAR speed detection are introduced in speeding cases. In short, judicial notice is not taken in Texas LIDAR speeding cases.  Hall v. State, 297 S.W.3d 294, 298 (Tex. Crim. App. 2009). The key question for this class seems not whether judicial notice is taken for LIDAR, but rather how judicial notice is defined.

Under Fed. R. Evid. 201, judicial notice is taken in adjudicative facts (not legislative) when that fact is “not subject to reasonable dispute.” Fed. R. Evid. 201(b). So, how does this apply to our science class?

Let us look at how a court might assume a fact. Arguably, any fact can be questioned. If we think about it, something as simple as the time an offense occurred may be called into question. A witness may state the crime occurred at 3:00pm. The defense may then launch into a series of questions: Is that 3:00pm Central Time? How do we know what 3:00pm is? Since 3:00pm is now in question, should an expert be called in to testify as to how we may determine what 3:00pm means and then how that applies to the different time zones? After all, how could the crime happen at 3:00pm when we do not know what 3:00pm is? This certainly sounds like an unreasonable line of questioning. After all, everyone agrees on time, right?

To limit this unreasonable delay, the court may either take judicial notice on its own, or take that notice upon request. Fed. R. Evid. 201(c)(1)(2).  So, before defense counsel goes too far down the time zone trail, the court may take notice of the time zone where the offence occurred since time is a generally accepted concept within the court’s jurisdiction. Fed. R. Evid. 201(b)(1).

So when presented with a scientific concept, such as fingerprint, DNA, ballistics, LIDAR, etc. it may be wise to find which underlying scientific facts the court has taken notice of and which are still questionable.

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