Ky. Sup. Ct. rules on: LEARNED TREATISES VS. JUDICIAL NOTICE – also adjudicative facts-dictionary definition


The following discussion concerns the difference between admission of evidence under the Learned Treatise rule versus admission under the Hearsay exception under the Judicial Notice rule.  Also discussion are “adjudicative fact” and the rules for “Judicial Notice of a Law.”  The first case allows introduction of a “dictionary definition”. 


Ky. Supreme Court –  2007-SC-000006-MR.pdf  TO BE PUBLISHED   MCCRACKEN  CIRCUIT COURT   Dec. 18, 2008
LawReader NOTE:
This ruling notes the difference in the use of evidence admitted by the court under Under KRE 803(18), known as the Learned Treatise Rule and evidence admitted purely by Judicial Notice.
1) Learned Treatise Rule – KRE 803(18),:”The judicial notice used in this rule goes only to whether the document is a reliable authority, not that the statements read are adjudicative facts.”
2) Judicial notice under KRE 201, however, concerns only adjudicative facts . KRE 201(a) . If a fact is judicially noticed under this rule, the jury must be instructed to accept such fact as conclusive. KRE 201(g)”
“During rebuttal, the Commonwealth asked to be allowed to read the
definition of “psychogenic” from an unnamed medical dictionary as a learned treatise pursuant to KRE 803(18) . Defense counsel objected that under the rule, a learned treatise must be introduced through an expert witness .

In response, the Commonwealth replied that the trial court could simply take judicial notice of the definition.


The trial court ruled that no expert would be required if it took judicial notice that the dictionary was a learned treatise, to which defense counsel again made proper objection and moved for a mistrial, which was overruled .


The trial court then informed the jury that it was recognizing “this book,” which still remained unidentified, as a learned treatise, and that what the Commonwealth was going to read was reliable and could be considered during deliberations. The Commonwealth then defined psychogenic as “produced or caused by psychological factors .”


Appellant argues that the trial court abused its discretion by taking
“judicial notice” of a medical dictionary as a “learned treatise .” While there is much confusion of terms here, the trial court committed no error when it
allowed the Commonwealth to read a definition of “psychogenic” into the


Under KRE 803(18), known as the learned treatise rule, statements from
such a document are not excluded by the hearsay rules, even though the
declarant is not available as a witness, when these statements are used in questioning an expert witness, either on direct or cross, if the statements are established as a reliable authority either by the witness, other expert testimony, or by judicial notice. The judicial notice used in this rule goes only to whether the document is a reliable authority, not that the statements read are adjudicative facts. As always, the weight of the authority must be determined by the trier of fact.


Judicial notice under KRE 201, however, concerns only adjudicative
facts . KRE 201(a) . If a fact is judicially noticed under this rule, the jury must be instructed to accept such fact as conclusive. KRE 201(g) . To be properly judicially noticed, the fact must not be subject to reasonable dispute, because it is generally known or can be determined by resort to sources whose accuracy cannot be reasonably questioned. KRE 201 (b) .


A trial court may take judicial notice of the definition of a word as an
adjudicative fact where the definition of a term is indisputable, that is, where it is “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned .” KRE 201(b)(2) .


Essentially, KRE 201 allows judicial notice to be taken of “facts `which can be determined from unimpeachable sources.’ Robert G. Lawson, The Kentucky Evidence Law Handbook §1 .00[3][c], at 10 (4th ed. 2003) (quoting 1 Christopher B. Mueller &, Laird C. Kirkpatrick, Federal Evidence § 51 (2d ed. 1994)).


As Professor  Lawson has noted, such sources include general authorities such as “encyclopedias, calendars, maps, medical and historical treatises, almanacs, and public records .” Id. Beyond doubt, dictionaries fall within the same class of “unimpeachable sources,”- and thus the definitions contained in them may be judicially noticed, so long as they are indisputable. See Comerica Bank v. Lexington Ins. Co., 3 F.3d 939, 944 (6th Cir. 1993) (holding that district court was within its discretion to take judicial notice of the dictionary definition of a word); B.V.D . Licensing Corp. . Body Action Design, Inc ., 846 F.2d 727, 728 (Fed. Cir. 1988) (“Courts may take judicial notice of . . . dictionaries .”) ; Richard
H. Underwood &, Glen Wissenberger, Kentucky Evidence 2005-2006 Courtroom Manual 44 (2005) (“Judicial notice is taken of the English language . : .Representative authoritative sources for verification [of facts] include such materials as historical works, science and art books, language and medical journals and dictionaries, calendars, encyclopedias . . . .” (emphasis added)) ; see also Werk v. Parker, 249 U.S . 130, 132-33 (1919) (“We deem it clear, beyond question . . . that the court was justified in taking judicial notice of facts that appeared so abundantly from standard works accessible in every considerable library.”) ; Samuel A. Thumma and Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court’s Use of Dictionaries, 47 rule are met:
Id. at 501 . ff. L. Rev. 227, 248 (1999) (noting that “by 1920, the
(Supreme) Court had decided that taking judicial notice of dictionary
definitions unquestionably was proper”) .


Indisputability of a definition. can be buttressed by cross-referencing the definition with other dictionaries or authorities. Specifically, judicial notice may be taken of the definitions of medical terms from a medical dictionary, Campbell v. Shelton, 727 N.E.2d 495, 502 (Ind. Ct.App. 2000), and those definitions are admissible into evidence in a jury trial, assuming of course that the other requirements of the judicial notice


We are mindful that there is a distinction between referring to a dictionary in a fact finding setting for the purpose of judicially noticing the meaning of a word, on one hand, and consulting such a source upon appellate review to discern the meaning of a term for purposes of, for example, statutory construction. . . .


Nevertheless, the preceding authority reflects that our courts generally regard dictionaries as `sources whose accuracy cannot reasonably be questioned .’ See Evid. R. 201 (a) .


We conclude, therefore, that a court may take judicial notice of a dictionary definition of a word, so long as the other conditions set out in Evid. R. 201 are met.


No suggestion has been made that the definition read to the jury in this case was not accurate, and the Appellant did not object to the content of the definition, only to the medical dictionary being treated as a learned treatise .


The trial court intended to take judicial notice of the meaning of the term
“psychogenic,” and found a medical dictionary to be an indisputable source of the definition . Since the accuracy of the definition was readily ascertainable, the trial court did not abuse its discretion in allowing it to be read to the jury.


Whether it was appropriate for this evidence to be introduced during rebuttal is perhaps another matter, but this has(to)  rise to the level of a palpable error.


The Appellant also takes Issue  with the use the Commonwealth made of
this definition in closing argument.


Since it was appropriate for the trial court to take judicial notice of the definition of “psychogenic,” it follows that it was appropriate for the Commonwealth to comment on that definition in closing argument, provided its inferences were reasonable .”


Ky. Supreme Court –  2007-SC-000377-MR.pdf  TO BE PUBLISHED  FAYETTE CIRCUIT  Dec. 18, 2008

Taking judicial notice of the law is usually prohibited, but exceptions are discussed when this is allowed.
“A judicially noticed fact must be one not subject to reasonable dispute” because it concerns a matter “[g]enerally known” or a matter “[c]apable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned
 ”[a]nything which can be `looked up’ in an authoritative source is a candidate for this type of judicial notice.
The judge should ask two questions :
(1) Does the source provide the precise fact to be noticed; and
(2) Is the source accurate
 When a court or an agency finds facts concerning the immediate parties-who did what, where, when, how, and with what motive or intent the court or agency is performing an adjudicative function, and the facts are conveniently called adjudicative facts.
…taking judicial notice of “the law” during the course of a trial is tantamount to instructing the jury prior to the close of the evidence.
 Obviously, a court could still take judicial notice of a law, if that law constituted an adjudicative fact in a particular case . An example of this would be proving the legal drinking age if there was a dispute as to what that age is, or any other time that it might be necessary to prove what the law is as a question of fact.


Other authorities discussing adjudicative facts:
Hacker v. Baesler, 812 S.W.2d 706 (Ky., 1991)
A rezoning ordinance is not a general law, but represents a decision on reclassification of a specific property, a decision of adjudicative fact which must be based on substantial evidence. Moreover, the General Assembly has expressly provided for judicial review of the outcome. None of these characteristics is found in bills of Congress or the General Assembly.

 Hume v. Franklin County Fiscal Court (Ky. App., 2003)  NO. 2002-CA-000947-MR.
 In this case, the fiscal court’s finding that the proposed zone map amendment is in agreement with the adopted comprehensive plan was clearly a determination of an adjudicative fact. Given that the fiscal court did not conduct its own trial-type hearing but instead relied on that conducted by the planning commission, it was required by McKinstry and McDonald to make any decision regarding an adjudicative fact on the basis of the record developed by the planning commission

Sullivan University System, Inc. v. Louisville Metro Board of Zoning Admustment, No. 2007-CA-001794-MR (Ky. App. 8/8/2008) (Ky. App., 2008)
We are persuaded that the Board’s findings of fact in this case were sufficient to allow for a meaningful review of the adequacy of the proceedings. The essential adjudicative fact before the Board was whether Sullivan’s use of the subject property was a permitted use — that of a library — regardless of its for-profit status as a user. The evidence before the Board indicated that the Lowell Avenue structure housed no literary or other media materials for student or faculty reference or loan. It provided no work space for students or faculty. No staff members were assigned to the building to assist students or faculty with research or to provide any library services whatsoever. Moreover, a Sullivan employee assigned to the property described the house as merely a “computer tech office.” This evidence was more than adequate to support the Board’s decision.
U.S. v. Mentz, 840 F.2d 315 (C.A.6 (Ohio), 1988)
In a criminal trial, the trial judge and the jury have well-defined roles, refined over many years of constitutional adjudication. The trial judge instructs the jury on the law applicable to the issues raised 5 and, in appropriate circumstances, may comment on the evidence. United States v. White Horse, 807 F.2d 1426, 1430 (8th Cir.1986); United States v. Johnson, 718 F.2d 1317, 1322, 1324-25 (5th Cir.1983) (en banc); 8A J. Moore, W. Taggart & J. Wicker, Moore’s Federal Practice p 30.05, at 30-40 (1987). The jury then independently determines the facts, and applies the law to those facts, in reaching its fateful decision. White Horse, 807 F.2d at 1430; Johnson, 718 F.2d at 1325. See also 2 C. Wright, Federal Practice & Procedure Sec. 485, at 711 (1982). However, the trial judge invades the jury’s province when, instead of simply instructing on the law, he applies the law to facts he has determined.
Page 320
See White Horse, 807 F.2d at 1430 (“when the judge is no longer deciding the law that applies to the evidence, but rather is applying the law to the facts–facts that are determined after assessing the probative value of evidence introduced at trial–the judge has invaded the jury’s province.”). 6
        There can be little doubt that a trial judge commits error of constitutional magnitude “when he instructs the jury as a matter of law that a fact essential to conviction has been established by the evidence, thus depriving the jury of the opportunity to make this finding.” Id. at 1429 (citation omitted). This is tantamount to a directed verdict for the prosecution, a result that is condemned by the Constitution. Martin Linen Supply Co., 430 U.S. at 572-73, 97 S.Ct. at 1355; United Brotherhood of Carpenters & Joiners of America, 330 U.S. at 408, 67 S.Ct. at 782.

Taylor v. Charter Medical Corp., 162 F.3d 827 (C.A.5 (Tex.), 1998)  even though a court may take judicial notice of a “document filed in another court … to establish the fact of such litigation and related filings,” 12 a court cannot take judicial notice of the factual findings of another court. This is so because (1) such findings do not constitute facts “not subject to reasonable dispute” within the meaning of Rule 201; 13 and (2) “were [it] permissible for a court to take judicial notice of a fact merely because it had been found to be true in some other action, the doctrine of collateral estoppel would be superfluous.”

We agree [with the Second and Eleventh Circuits] that courts generally cannot take notice of findings of fact from other proceedings for the truth asserted therein because these are disputable and usually are disputed. However, it is conceivable that a finding of fact may satisfy the indisputability requirement of Fed.R.Evid. 201(b). This requirement simply has not been satisfied in this case. 17
        It is not necessary at this point for us to determine whether courts in this circuit are never permitted to take notice of the factual findings of another court or are permitted to do so on rare occasion, subject to the Rule 201′s indisputability requirement, because the Milonas courts’ state actor determination cannot clear the rule’s “indisputability” hurdle. 18 That Old Provo Canyon was a state actor for the purposes of the Milonas suit (let alone for the purposes of the present suit) was certainly open to dispute and was, in fact, disputed by the parties. That determination simply was not the type of “self-evident truth[ ] that no reasonable person could question, [a] truism[ ] that approach[es] platitude[ ] or banalit[y],” as required to be eligible for judicial notice under Rule 201. 19
        In addition, the Milonas courts’ state actor determination is not an “adjudicative fact” within the meaning of Rule 201. Whether a private party is a state actor for the purposes of § 1983 is a mixed question of fact and law
Page 831
and is thus subject to our de novo review. 20 Rule 201 authorizes the court to take notice only of “adjudicative facts,” not legal determinations. 21 Therefore, a court cannot take judicial notice of another court’s legal determination that a party constituted a state actor for the purposes of § 1983: That determination is neither an adjudicative fact within the meaning of Rule 201 nor beyond “reasonable dispute.”

(a)    Scope of rule.  This rule governs only judicial notice of adjudicative facts.
(b)    Kinds of facts.  A judicially noticed fact must be one not subject to reasonable dispute in that it is either:
(1)    Generally known within the county from which the jurors are drawn, or, in a non-jury matter, the county in which the venue of the action is fixed; or
(2)    Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
                (c) When discretionary.  A court may take judicial notice, whether requested or not.
                (d) When mandatory. A court shall take judicial notice if requested by a party  and supplied with the necessary information.
   (e) Opportunity to be heard.  A party is entitled upon timely request to an opportunity to be heard as to the propriety  of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
(f)      Time of taking notice. Judicial notice may be taken at any stage of the proceeding.
(g)    Instructing the jury.  The court shall instruct the jury to accept as conclusive any fact judicially noticed.
The following are not excluded by the hearsay rules, even though the declarant is available as a witness:
(18)Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established  a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. 
If admitted, the statements may be read into evidence but may not be received  as exhibits.

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