There is a famous story about a case in which Abraham Lincoln was defending a man accused of murder. The prosecution’s star witness testified he was able to see the face of the murderer — Lincoln’s client — by the light of a full moon.
Lincoln rose to cross-examine the man and had him confirm that the light of a full moon provided illumination for the witness to see. After the witness reiterated this point, Lincoln whipped an almanac from his pocket and pointed out that there was a new moon the night of the murder — that is, that there could have been no moonlight on the night in question. The witness had no response to this.
Lincoln then asserted that the only reason someone would lie under oath to send another man to the gallows would be if the witness himself were the murderer. Whereupon, the story goes, the witness broke down and confessed.
Well, that would have made a great episode of Perry Mason, too (because Mason always got the real killer to confess his guilt on the stand). But a side feature of this famous Lincoln story is that the judge allowed Lincoln to waive the almanac around and cite it without having to do anything to put that information into evidence.
And that’s because the information from an almanac, like that from few other sources, can be admitted into a court of law without the need for formal proof. (It would have been a little hard for the jury to go back to the night of the crime and take note of the moon, after all.)
It’s a rarely used but fascinating doctrine called “judicial notice” — in a tiny set of circumstances, courts will accept facts as established without the need for formal proof because, as a practical matter, the information cannot really be disputed (though some lawyers will always find a way . . .).
Most of the time it’s pretty tame stuff. Along with the information in an almanac, a court will “take judicial notice” of things like on which day of the week a certain date fell in a given year; or what the language of a given statute is; or how a dictionary defines a certain word.
But there are surprising numbers of things of which courts can “take judicial notice,” limited pretty much by the imagination. In California, for example, the law allows a court to take “judicial notice” of “facts and propositions that are not reasonably subject to dispute.” Sometimes, though, the things courts have accepted using this standard tell us more about the times in which a case was decided than anyone imagined at the time.
In one case, for example, a 200-pound woman sat on the edge of a chair that slipped out from under her, severely injuring her. The court wrote that it was a “well recognized fact that big persons fall harder than small ones.”
Or, in a 1944 case, the court of appeal decided that it was common knowledge that “although one may not be able to sufficiently describe a person so that person may be recognized by another, yet one can himself recognize and identify the same person with certainty.” Even without knowing the facts of the case, it must have been a fascinating time on the witness stand for someone (“Well, I can’t describe him, but if you could just bring him in here . . . .”)
Other cases, though, tell us more about how society has changed. Consider this from a 1940 court decision: “It is common knowledge that the ‘National Scratch Sheet’ is a publication and can be purchased at any news stand.” And that might still be true — if there were any newsstands that still existed.
On the other hand, some things have not changed. In 1948, a California court decided that the pollution of the beach on Santa Monica Bay from sewage is a matter of common knowledge. Strangely, there has never been a case about how all the oil on the beaches in Santa Barbara is a matter of common knowledge . . . but if it ever came up, a court would most likely acknowledge that fact, too.
Still, one of the oddest invocations of judicial notice came in a federal court decision in 1949, in which the judge concluded that “It is a matter of general knowledge that toilet tissue and paper towels are used as toilet seat covers by cleanly persons in public toilets.”
That’s certainly a comforting thought. And it may be the only time that the word “cleanly” has been used — as an adjective — before or since.
Frank Zotter, Jr. is a Ukiah attorney.
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