Judicial Notice


The authority of a judge to accept as facts certain matters which are of common knowledge from sources which guarantee accuracy or are a matter of official record, without the need for evidence establishing the fact. Examples of matters given judicial notice are public and court records, tides, times of sunset and sunrise, government rainfall and temperature records, known historic events or the fact that ice melts in the sun.

Interpretation of Frye:

 

Where novel scientific evidence is at issue, the Frye inquiry allows the judiciary to defer to scientific expertise precisely as to whether or not it has gained "general acceptance" in the relevant field. The trial court's gatekeeper role in this respect is conservative, thus helping to keep "pseudoscience" out of the courtroom.
 

Interpretation of Daubert:

 

General acceptance is an austere standard absent from and incompatible with the Rules of Evidence. "Scientific knowledge" must be derived from the scientific method supported by "good grounds" in validating the expert's testimony, establishing a standard of "evidentiary reliability".

 

WHAT ARE THE RELIABILITY FACTORS IN DAUBERT?

All trial courts make a preliminary determination of admissibility. This job involves a preliminary assessment of whether the evidence is relevant, competent, and material. In short, can the evidence be properly applied to the facts in this case? This is the traditional "gatekeeping" function of courts. A number of reliability factors can enter into this and subsequent hearings using the Daubert standard:

Has the scientific theory or technique been empirically tested? According to K. Popper (1989) in The Growth of Scientific Knowledge, "the criterion on the scientific status of a theory is its falsifiability, refutability, and testability".


Has the scientific theory or technique been subjected to peer review and publication? This ensures that flaws in the methodology would have been detected and that the technique is finding its way into use via the literature.


What is the known or potential error rate? Every scientific idea has Type I and Type II error rates, and these can be estimated with a fair amount of precision. There are known threats to validity and reliability in any tests (experimental and quasi-experimental) of a theory.


What is the expert's qualifications and stature in the scientific community? And does the technique rely upon the special skills and equipment of one expert, or can it be replicated by other experts elsewhere?
Can the technique and its results be explained with sufficient clarity and simplicity so that the court and the jury can understand its plain meaning? This is just the Marx standard, which is assumed to be incorporated in Daubert as it was with Frye.

 

SOME EXAMPLES OF DAUBERT APPLIED TO SPECIFIC TECHNIQUES:
(Note this is not a complete list, and is not accurate for ALL jurisdictions)

BALLISTICS generally FAILS the Daubert standard despite widespread acceptance.


BATTERED WOMAN SYNDROME has satisfied the Daubert standard in some jurisdictions, but fails in most.


CHILD ABUSE ACCOMMODATION SYNDROME has FAILED the test, for the most part.


COMPUTER SIMULATION has failed because experts can't explain the algorithms.


DNA evidence is admissible under either the Frye or Daubert standard, but the reliability issue goes beyond the matter of testimony to the proper performance of protocols and probability estimates.


EYEWITNESS IDENTIFICATION generally FAILS the Daubert test, for the most part, as most social science, like social psychology, does.


FORENSIC ANTHROPOLOGY has not yet met the Daubert test, but the study of certain features from bones remains reliable.


HAIR ANALYSIS  Daubert has been successfully applied to Spectrophotometer and Gas Chromatographic tests for detecting the past use of drugs.


HYPNOSIS has known therapeutic value, but not as a method of producing accurate recollection of past events, as it would be used in court. Hypnosis, therefore, does not meet the Daubert test.


INTOXILYZER TESTS have been ruled valid and are considered beyond scientific dispute by many judges.

 

LASER RADAR  Lidar and speed radar has not been found accurate in most jurisdictions to a legal degree of certainty as experts can't explain algorithms used to show reliability in all situations and fails to meet the Duabert test.

 

POLYGRAPH evidence (which was usually acceptable under Frye with a few exceptions) is beginning to be found reliable in Daubert hearings, but still does not enjoy nationwide acceptance, and is, in fact, outlawed by per se laws in various jurisdictions.


PSYCHIATRIC evidence has had mixed results under Daubert. Techniques such as use of penile plethysmography to measure sexual arousal have had problems getting admitted, but no problems in other states. Also having difficulties is psychological or sociopsychological profiling which is often attacked for its lack of logical foundation and/or weak methodology. Checklist techniques, such as those used to determine if someone is a pedophile or a psychopath (e.g., an Axis disorder on the DSM IV) are experiencing difficulties. However, testimony regarding mental disorders that go to the matter of mens rea generally satisfies the Daubert test. as does much diminished capacity testimony and the more proven variety of syndromes.


QUESTIONED DOCUMENTS (or Expert Handwriting Analysis) has been ruled by many judges as not requiring the Daubert test because scientific principles have nothing to do with the day to day tasks are performed by practicing QDEs. However, some newer types of analysis are experiencing difficulties.


SOCIAL SCIENCE evidence, such as the use of regression analysis to show evidence of racial bias or estimates of damage, often requires the addition of proof from the field of epidemiology and some demonstration of mastery at econometrics, but "naked" statistical evidence has often been admitted anyway by some judges.


TRACE EVIDENCE COMPARISON has not yet been decided due to controversy over the qualifications required for a forensic scientist or lab technician.


VOICE COMPARISON techniques have FAILED the Daubert test, for the most part.

 

What does this all mean:

 

It means that if you object strong enough and hard enough the evidence from the laser device it will not be allowed, resulting in a dismissal. It is up to the prosecution to come up with documentation showing that there is judicial notice in your jurisdiction. They want to enter the evidence, you are challenging it and as such the Burdon is on them to negate your challenge by providing a favorable Frye or Daubert Ruling.