Friday, September 27, 2013
Illinois Rule of Evidence 201(b) states that
A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
Meanwhile, Illinois Rule of Evidence 201(g) provides that
In a civil action or proceeding, the court shall inform the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall inform the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.
The limiting instruction at the end of Rule 201(g) is thought to be necessary to safeguard a criminal defendant's Sixth Amendment right to trial by jury. So, what should happen when such an instruction is not given? Let's take a look at the recent opinion of the Appellate Court of Illinois, Third District in People v. Love, 2013 WL 5332141 (Ill.App. 3 Dist. 2013).
In Love, Veronica Love was charged with driving while under the influence of alcohol (DUI). Thereafter, at trial, the court took judicial notice of the applicable conversion factor for blood serum alcohol content to whole blood alcohol content. Specifically, the judge instructed the jury as follows:
“In this case, the testimony was that the serum level was .190. The blood serum or blood plasma alcohol concentration results will be divided by 1.18 to obtain a whole blood equivalent. After conversion, the whole blood equivalent is .161.” (Emphasis added.)
After Love was convicted, she appealed, claiming that this instruction violated Illinois Rule of Evidence 201(g). The appellate court agreed, finding that "the instruction did not include any cautionary language advising the jury it was not mandated to accept the identified applicable conversion factor or adopt the calculations based on a formula using this conversion factor and other contested facts of record."
This left the court with the question of whether the error was harmless, and the court found that it was not, concluding that
In another instruction, the jury learned that if it found defendant's whole blood alcohol content was greater than 0.08, it “may” presume that defendant was “under the influence of alcohol.” IPI Criminal 4th No. 23.30 (Supp.2009). However, the judicial notice instruction submitted to the jury, over defendant's objection, did not contain similar limiting language suggesting the jury was not mandated to conclude defendant's blood alcohol level was .161. The jury could have easily viewed the calculation included a mandated fact showing defendant's blood alcohol level twice the amount, namely 0.08, that supported a strong but permissive presumption of intoxication. Thus, we conclude the instructional error contained in this record should not be viewed as harmless.