Chapter 4: Substitutes for Admission of Evidence: Judicial Notice, Stipulations, Inferences, and Presumptions
Case Study 1
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.
Case Study 2
Overview — Based on: State v. Millican, 2020 Tenn. Crim. App. LEXIS 98 (2020).
An investigator for the Giles County Sheriff’s Department became aware that a stolen 2006 Jeep might be in his area. His initial investigation and a search on Facebook revealed a person, who could be the defendant, standing next to the stolen vehicle, apparently loading groceries. The officer recognized the defendant based on prior official dealings with him. After receiving additional information, the investigator went to the defendant’s house where the stolen Jeep was found in possession of the defendant, five days after the owner reported it stolen. The vehicle license plates were not registered to the stolen Jeep. The defendant indicated that a Black male, claiming to be the owner of the Jeep, had dropped it off for him to do some repair work on the vehicle, but he was unable to give the owner’s name or the nature of the repair work that needed done. Police took the Jeep into custody and drove it away. Additional police inquiry into the defendant’s possession never revealed any additional details of how the defendant acquired the vehicle, and he could never identify the person who he claimed gave it to him for repairs.
In Tennessee, a person is deemed to have committed theft of property with the intent to deprive the owner of the property when the person knowingly obtains or exercises control over the property without the owner’s effective consent. Tennessee law also recognizes inferences and presumption concepts. Under the law, when a person has been proven to be in possession of recently stolen property, unless it is satisfactorily explained, it allows a permissible inference that the person who possessed the stolen property gained such possession through theft.
The defendant was brought to trial on a charge of theft of property with a value greater than $10,000 and convicted of theft of the Jeep. Evidence disclosed that the defendant had complete dominion and control over the vehicle that belonged to another man who had not authorized the defendant to use it or do anything to the vehicle. In addition, several of the defendant’s personal possessions were found within the Jeep, including a cooler and a shirt. At trial, the defendant’s father indicated that his son, the defendant, was incapable of repairing any vehicle because of “bad knees.” The father testified that a Caucasian man was around the defendant’s home, but he never saw the Black man the defendant described. The owner testified that the vehicle had been stolen from him at a gas station while he was inside the store and indicated that it had no mechanical issues at the time of the theft.
This appeal followed where the defendant contended that the evidence was insufficient to convict him of the theft charge. On appeal, the defendant argued that the evidence did not show that he intended to deprive the owner of the property or that he knowingly obtained or exercised control over the property without the owner’s consent. The prosecution responded that, viewed in the light most favorable to the state, there was sufficient evidence for a rational juror to convict the defendant, Millican.
Yes. Under the facts of this case, where the defendant appeared to be in exclusive control of personal property that had clearly been recently stolen, as testified by the owner, it is permissible to infer from this situation that the defendant in possession of recently stolen property, knew the property was stolen. The defendant’s father indicated that he was incapable of working on a motor vehicle even though the defendant claimed that the vehicle had been entrusted to him for repairs. The vehicle had been reported stolen by the owner, who identified the vehicle and indicated that he had given no one permission to use or to take it. According to the reviewing court, the defendant was in exclusive control of the recently stolen property and did not have a credible explanation of how it came into his possession. The jury was free to reject defendant Millican’s explanation and to infer that the defendant had gained illegal possession of the recently stolen vehicle by virtue of theft or that he possessed knowledge that the property had been stolen. The court noted that where questions of fact are involved, the credibility of witnesses and weight of the evidence are matters to be resolved by the jury, and that appellate courts will not reweigh the evidence. The conviction for theft of the motor vehicle was affirmed.
Case Study 3
Overview — Based on: United States v. Robinson, 2019 U.S. Dist. LEXIS 41892 (E.D.N.Y. 2019).
The defendant had been federally charged in New York for committing several armed robberies and attempts at armed robbery, all while using a firearm. In one of the cases that the defendant allegedly perpetrated, there was a digital video security camera that recorded events outside of a Subway restaurant that had a timestamp on the display. The defendant was alleged to have used a rental van for transportation, and the video footage presented at the hearing showed a dark rental van that entered and parked in the Subway parking lot. It was important that the video recording, have an accurate timestamp, but it displayed the time of 6:38 P.M., which was erroneous. The officer maintained that the time of the video was actually one hour later, at 7:38 P.M. because the video cameras at the Subway restaurant were not properly synced to reflect daylight saving time, which was then in effect. At the trial, no additional evidence was offered concerning the time of sunset on March 26, 2016. On appeal, the prosecution contended that because it was dark at the time of the video recording, the video must have been recorded at 7:38 P.M. This is because, according to the Astronomical Applications Department of the U.S. Naval Observatory, sunset on March 26, 2016, in Lake Grove was at 7:15 P.M. In effect, the District Court took judicial notice of the fact that sunset on that particular day would have occurred at the time the U.S. Naval Observatory indicated, and so it would have proven that the timestamp was incorrect and that the actual time of what was recorded was one hour later, at 7:38 P.M.
For the prosecution, it was important that the time of the arrival of the van at the Subway parking lot be established accurately, and it would have been one hour later than the security video indicated. This evidence and substantial other evidence helped to convict the defendant of a variety of armed robberies and attempted robberies in a 32-count indictment.
Yes. In this case, placing the vehicle at the location in a particular time was important to the prosecution’s case. The fact that the timestamp on the video security camera seemed to be erroneous, since sunset already had occurred on the camera footage, a correction of the error of the timestamp could occur for judicial notice of a scientific or astronomical fact.
In the words of the federal district court, “The Court can, and does, takes judicial notice of the sunrise and sunset based upon the type of data submitted in the Government’s response. See e.g., Cox v. City of New York, 2014 U.S. Dist. LEXIS 100552, 2014 WL 3696003, * 1 (E.D.N.Y. July 23, 2014).
Accordingly, and in light of the other facts presented, the Court accepts as fact that the Subway video footage viewed by Officer Vlacich recorded events of 7:38 P.M. and not 6:38 P.M. The Court finds, therefore, that the Rental Van entered the Subway parking lot just prior to the 7:45 P.M. time of the 911 call reporting a disturbance . . . .”
In this case, using judicial notice to determine when sunset occurred was a reasonable use of the concept because the time of sunset at a particular latitude on a particular day is not and cannot be subject to any reasonable dispute. It is easily discernible by reference to standard works, or in this case, the determination by the United States Naval Observatory concerning when sunset occurred.