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Getting a Judge to take judicial notice of a journal, treatise or article advantageous to your position is an opportunity that can present itself in many different kinds of cases. Many lawyers think that the inquiry ends with efforts to get witnesses to admit to whether a particular source is "authoritative". As can be seen from the trial memorandum included below, there is more than one way to skin a cat.
A TRIAL COURT MAY
TAKE JUDICIAL NOTICE OF
MATTERS OF SCIENCE FROM ANY SOURCE THAT THE COURT REGARDS AS SAFE AND
Judge in general is specifically authorized by statute to "consider
any testimony document, information, or agreement on the subject whether
offered by a party or discovered through its own research." Fisch
In accordance with these principles, articles appearing in medical journals and texts, and not in the record, have been cited by the Court of Appeals (Perlmutter v. Beth David Hospital, 308 N.Y. 100, 106-107, 123 N.E.2d 792, 795, 796; People v. Richmond County News, 9 N.Y.2d 578, 581-584, 216 N.Y.S.2d 369, 371-373) and by the U. S. Circuit Court of Appeals of the District of Columbia (Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d 1430).
noted, one of the earliest statements of this broad power was penned by
the United States Supreme Court in Brown et al. v. Piper.,
91 U.S. 37, (1875) where the Court wrote;
private and special facts, in trials in equity and at law, the court or
jury, as the case may be, is bound carefully to exclude the influence of
all previous knowledge. But there are many things of which judicial
cognizance may be taken…. Courts will take notice of whatever is
generally known within the limits of their jurisdiction; and, if the
judge's memory is at fault, he may refresh it by resorting to any means
for that purpose which he may deem safe and proper. This extends to such
matters of science as are involved in the cases brought before him. See
1 Greenleaf's Ev. 11; Gresley's Ev., supra; and
The New York Court of Appeals first applied this principal directly to articles appearing in medical journals and texts in Perlmutter v Beth David Hospital 308 N.Y. 100, 123 N.E.2d 792 (1954), observing;
Informed opinion is at hand that there is today neither a means of detecting the presence of the jaundice-producing agent in the donor's blood nor a practical method of treating the blood to be used for transfusion so that the danger may be eliminated (see, e. g., Wiener Medicolegal Aspects of Blood Transfusion, A Report of the Committee on Medicolegal Problems of the American Medical Assn. (1953); Portis, Diseases of the Digestive System (3d ed., 1953), p. 667; Report on Jaundice Following Administration of Human Serum (1943), Public Health Reports, vol. 58, No. 33, pp. 1233, 1241), but whether that is so or not, the fact is that, if the transaction were to be deemed a sale, liability would attach irrespective of negligence or other fault.
And the Court of Appeals directly approved the practice of judicial notice again in People vs. Finkelstein 11 N.Y.2d 300, 183 N.E.2d 661, 229 N.Y.S.2d 367 (1962) commenting as follows;
The practice is not uncommon of taking evidence concerning matters within the realm of judicial notice so as to furnish the judicial mind with more exact details of general knowledge which Judges are presumed to know already, the contents of an almanac, for example (Case v. Perew, 46 Hun 57, affd. 122 N.Y. 665, 26 N.E. 752). In my view it is open to a court to examine other books and publications than those subject to the criminal charge to inform itself, concerning what are contemporary community standards.
Another Appellate Court considered the question in Kilburn v. Bush 223 A.D.2d 110, 646 N.Y.S.2d 429 (App. Div. 4th Dept. 1996); a case which cited medical journal authority itself and noted another case with approval that took judicial notice of various medical journals;
to that proposition, some courts have stated that "it is not true
that ordinarily sleep comes unheralded" (Bushnell v. Bushnell, 103
Worth noting is the approach of the Supreme Court trial judge in Johnita M.D. v David D.D. 191 Misc.2d 301, 740 N.Y.S.2d 811, 2002 N.Y. Slip Op. 22529, combining these authorities to aid his grappling with questions of second hand smoke and the best interest of a child;
To transform the fiction of
the supposed knowledge of the Judge into reality, he is permitted to
inform himself in any way he deems best and from any source which he
regards as safe and proper. He may refer to calendars, dictionaries,
encyclopedias, geographies, and other books or even contact the State
Department for required information and is specifically authorized by
statute to "consider any testimony document, information, or
agreement on the subject whether offered by a party or discovered
through its own research." Fisch on
an application of the judicial notice process to aid in assessing
generally accepted medical practices, and hence medical necessity, was
specifically called for in a No-fault setting in CityWide
Social Work & Psy. Serv., P.L.L.C. v. Travelers Indem.
Generally accepted practice
is that range of practice that the profession will follow in the
diagnosis and treatment of patients in light of the standards and values
that define its calling. For a "published test", like those at
issue in this case, evidence of such practice might readily be found in
the material that accompanies the test and the writings in books and
professional journals of the persons who designed the test and those who
have used it.
Accordingly, it is well within the Court’s power to take judicial notice of those safe and proper sources as proposed by Defendant in the instant matter.