EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, May 26, 2010

Did You Notice That? Court Of Appeals Of Ohio Avoids Internet Authentication Issue Through Judicial Notice

Like its federal counterpart, Ohio Rule of Evidence 901(A) provides that

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

So, can internet printouts be admitted without the testimony of an authenticating witness? This was a question presented to the Court of Appeals of Ohio, Twelfth District in State v. Howard, 2010 WL 2029056 (Ohio App. 12 Dist. 2010), but one which it did not need to answer based upon judicial notice.

In Howard,

On the evening of January 6, 2009, appellant's husband, Dexter Howard, was rushed to Atrium Medical Center...for injuries he sustained while riding his neighbor's four-wheeler. As appellant waited at the hospital, she gave a written statement describing the accident to Trooper Brandon Rhule of the Ohio State Highway Patrol. Appellant told Trooper Rhule that "my husband and I were riding the [four]wheeler * * * I attempted to turn right into the driveway. The [four]-wheeler flipped and when I got up I saw Dexter lying on the ground." When Trooper Rhule specifically asked whether appellant was operating the four-wheeler at the time of the accident, she answered "yes." Meanwhile, as Dexter lay in his hospital bed, he spoke to another officer named Sergeant Tom Bloomberg. Dexter indicated that at the time of the accident, he was seated on the back of the four-wheeler while appellant drove.

The next day, Dexter contacted Sergeant Bloomberg to tell him that he was driving the four-wheeler at the time of the accident, and that appellant "had said what she had said because * * * she was trying to protect him."

As a result of her statement to Trooper Rhule, the appellant was charged with one count of falsification, a first-degree misdemeanor. The appellant was later convicted after a trial before the judge of the Franklin Municipal Court, and the appellant thereafter appealed, claiming that the state failed to offer any admissible evidence which proved that her statement occurred within the court's venue.

Specifically, the appellant claimed

that the trial court wrongfully took judicial notice that Atrium was located in Franklin Township because its decision was based on hearsay. Appellant argue[d] that in order for the state's internet printouts to be admissible, Evid.R. 901(A)-(B)(1) required a witness to testify that the printouts were what they were purported to be.

The Court of Appeals disagreed, finding that

A court may take judicial notice of a fact not subject to reasonable dispute that is "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Evid.R. 201(B)(2). A court may take judicial notice, whether requested or not. Evid.R. 201(C). Further, "[j]udicial notice may be taken at any stage of the proceeding." Evid.R. 201(F). Once judicial notice of a fact is taken, 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." Evid.R. 201(E)....

Upon review, we hold that the trial court took proper judicial notice that Atrium was located in Franklin Township. This fact is not subject to reasonable dispute because it is capable of accurate and ready determination by reference to the Warren County Auditor's website, a source whose accuracy cannot be questioned given its status as an official source of government information....As a result, the location of Atrium is subject to judicial notice under Evid.R. 201(B)(2).



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