Opinion
No. State 53.
Argued June 4, 1971. —
Decided June 25, 1971.
APPEAL from a judgment and an order of the circuit court for Milwaukee county: JOHN A. DECKER, Circuit Judge. Reversed.
For the appellant there was a brief by Shellow Shellow and James M. Shellow, all of Milwaukee, and oral argument by James M. Shellow.
For the respondent the cause was argued by Theodore J. Hodan, assistant district attorney of Milwaukee county, with whom on the brief were Robert W. Warren, attorney general, and E. Michael McCann, district attorney.
The defendant, Fred Lee Barnes, was charged in an original information with the possession of heroin on March 29, 1967. A trial to the court was held on December 11 and 12, 1968. On February 24, 1969, the court, over objection of defendant, amended the information to charge possession of "opium and morphine derivatives" and found defendant guilty of the amended charge.
On March 29, 1967, officers of the vice squad of the Milwaukee police department executed a search warrant for defendant's flat. Upon seeing the officers enter his apartment, the defendant ran to a window and threw a plate with tinfoil on it out the window. The plate, the tinfoil and the contents thereof were recovered by other officers who were stationed outside the premises and saw the plate land, unbroken in soft dirt outside the window.
The plate and tinfoil were delivered to Mr. Herbert A. Hatter, Milwaukee health department chemist; he scraped a brown powder from the plate and from the tinfoil. The total weight of the brown powder was .170 grams, or approximately six one-thousandths of an ounce.
Mr. Harrer testified that he analyzed this powder by the use of twelve tests: two precipitate tests, three crystal tests and six color tests; in addition, he analyzed the powder with an ultraviolet spectrophotometer. Over defendant's objection, he was permitted to give his opinion that the substance was heroin. However, the trial court found that Mr. Harrer was not qualified to perform the spectrophotometric analysis and struck from the record his testimony concerning this test.
The defendant called two expert witnesses: Dr. Robert G. Splies, an associate professor of analytical chemistry at the University of Wisconsin; and Dr. Peter Moore, a clinical biochemist at Madison General Hospital and a part-time employee of the Wisconsin state crime laboratory. Each witness testified that the tests performed by Mr. Hatter were not specific for heroin and that numerous other compounds yielded identical results on those tests. Dr. Splies explained that his opinion was based upon experiments that he personally performed at the Wisconsin state crime laboratory. He concluded that a substance yielding the results obtained by Mr. Harrer could be heroin but it could also be one of several other chemical compounds.
In rebuttal, the state called Mr. Leon E. Wener, a chemist employed by the United States government. Mr. Wener testified that he could form an opinion that a substance was heroin based upon eight of the chemical tests used by Mr. Harrer.
After Wener's testimony was completed, the defense recalled Dr. Moore for surrebuttal. He expanded on the reasons for his opinion that neither the series of tests used by Mr. Hatter nor those suggested by Wener would be adequate for an identification of heroin. He explained that many of the reagents relied upon by Harrer and Wener did nothing more than demonstrate that the suspected substance was or was not an alkaloid. For example, he stated that dozens and dozens of compounds will yield purple in the presence of the Marquis reagent.
At the close of all the evidence, the trial court apparently had serious doubts about the adequacy of the state's case because he took the matter under advisement and continued the case for decision to January 17, 1969, at 9 a.m.
On January 17, 1969, the parties met in court, and the judge announced that he had not yet been able to reach a decision. He stated:
". . . I am frank to say that the record in this case on behalf of the prosecution gives me a great deal of difficulty. Now, that is not a forecast of anything, it's just a difficult case to decide. . . ."
In preparing to reach a decision in this case the court sought the aid of Dr. Dale Wurster, professor of pharmacy at the University of Wisconsin. The court stated that Dr. Wurster's role as an assistant to the court was restricted to that of a "librarian" who simply directed the court to "source material" which would better enable the court to understand the evidence already in the record. The trial court said that it recognized that the procedure it followed in this case was not within traditional boundaries of judicial notice but that it was "akin thereto."
Upon the amended information, the court found defendant guilty and sentenced him to a term of imprisonment of not less than two, nor more than five, years. Postconviction motions were made challenging the sufficiency of the evidence, the amendment of the information and the judicial notice of disputed scientific facts. The motions were denied and defendant appeals.
The defendant presents the following issues on this appeal:
(1) Did the court's judicial notice of a disputed scientific fact deny to defendant the right of confrontation and due process of law;
(2) Did the court err in amending the information over defendant's objection; and
(3) Was the evidence sufficient to support the conviction?
Judicial notice of controverted scientific facts.
Judicial notice is simply a process whereby one party is relieved of the burden of producing evidence to prove a certain fact. The court accepts the fact as true without proof on the theory that the fact noticed is so well known that it would be superfluous and a waste of time to require proof of it. It is on this basis that judicial notice was once said to be restricted to those facts which were a matter of "common knowledge" and which no reasonable person would dispute.
In more modern times, however, the scope of the doctrine of judicial notice has been expanded in recognition of the fact that much data pertinent to present day litigation is not a matter of "common knowledge," but instead is known only to specialists who have made intensive studies in their particular fields. Some facts, while not commonly known, are nevertheless indisputably true; and thus it is now recognized that judges may consult "sources of indisputable accuracy" and notice from such sources facts which are capable of being known to a "verifiable certainty."
Currie, Appellate Courts Use of Facts Outside of the Record by Resort to Judicial Notice and Independent Investigation, 1960 Wis. L. Rev. 39. See also: McCormick, Evidence (1954 hornbook series), pp. 687-712, secs. 323-331.
If a fact is not capable of being known to a verifiable certainty, then it cannot be judicially noticed, and it must be proven instead in the normal adversary manner. The standard of verifiable certainty has been established as a limit and a safeguard to prevent error. As Professor McCormick has noted, there are certain dangers inherent in the process of judicial notice when it is applied to complex scientific and technological facts. Two of these dangers are set forth below:
". . . second, that they may mistakenly accept as authoritative scientific theories that are outmoded or are not yet received by the specialists as completely verified, and third, that in taking judicial notice of accepted scientific facts, the courts, in particular cases may misconceive the conclusions or applications which are supposed to flow from them . . . ." McCormick, Evidence (1954 hornbook series), p. 694, sec. 325.
In order to reduce the possibility that the trial court might commit one of the errors warned of by McCormick and also to preserve the balanced nature of the adversary process, this court has established the following rule for those cases where the fact intended to be noticed is an adjudicative, as distinguished from a legislative, fact:
Adjudicative facts are those facts which relate to the particular parties and the merits of the particular case under consideration, whereas legislative facts are those used by the courts in arriving at a policy decision which only incidentally relates to the case at bar.
". . . the trial judge or the party requesting judicial notice should' notify the parties or the adversary, as the case may be, so as to afford them an opportunity of consulting the same sources or of producing others. This does not mean that there will be a trial of textbooks, but rather it serves only to apprise the court whether the subject is verifiably certain or whether the issue must be proved and determined as a fact question." Fringer v. Venema (1965), 26 Wis.2d 366, 373, 132 N.W.2d 565, 133 N.W.2d 809.
In this case, the trial court's resort to judicial notice was sua sponte and not the result of a motion by the state. The trial court "informally" apprised the defense of its intention to do some independent research and to use Dr. Wurster as a "librarian" to aid the court in its research. Such notice as was given does not comply with the requirement of Fringer, supra.
The notice must include the names of the sources consulted and the facts found in those sources which the trial court intends to rely on. Moreover, the notice must be given before judgment is rendered. Fringer, supra, and Schmiedeck v. Gerard (1969), 42 Wis.2d 135, 142, 166 N.W.2d 136.
When the notice requirement of Fringer is not complied with, the defense has no opportunity to point out to the court that the facts noticed are debatable or doubted by some significant portion of the scientific community.
No one for either side testified as to whether Harrer's tests results justified the conclusion that the suspected substance was an "opium and morphine derivative." In fact, not even the authorities resorted to by the trial court state that such a conclusion may be drawn. Apparently that conclusion was drawn by the trial court on its own initiative on the basis of sources noticed by the court in its independent research.
Unless a defendant is informed at the trial of the facts of which the court is taking judicial notice, not only does he not know upon what evidence he is being convicted, but, in addition, he is deprived of an opportunity to challenge deductions drawn from such notice or dispute the truth of the facts allegedly relied upon.
We conclude that the court's judicial notice of a disputed scientific fact, without informing the defendant and affording him the right of confrontation, is harmful; and the error affects a substantial right. We, therefore, reverse the judgment of conviction and sentence and the order denying a new trial.
Because of our ruling on the judicial notice issue, resulting in the granting of a new trial, we do not reach the merits of the remaining issues.
By the Court. — Judgment and order reversed, and cause remanded for a new trial.