Judicial Notice of Math and Other "Generally Known Facts"
State v. Kwong (HSC March 4, 2021)
Background. Maggie Kwong was charged with operating a vehicle under the influence of an intoxicant. At her trial, Honolulu Police Department Officer Josh Wong testified that at around 3:30 a.m. he was traveling on Kapiolani Boulevard about 30 feet from the intersection with Isenberg street when Kwong abruptly cut him off by moving her vehicle from the right lane to the middle land and then into the far-left lane all without using her signal. According to Officer Wong, Kwong moved between his vehicle and a pick up truck that was turning left onto Isenberg Street. Officer Wong testified that he slammed on his breaks to avoid colliding into the back of Kwong’s vehicle and that “whatever was on my seat that wasn’t fastened, all the stuff went onto the floorboard.” He pulled Kwong over, got her out of the car, subjected her to field sobriety maneuvers, and determined that she failed those maneuvers.
On cross-examination, Officer Wong committed himself to the distances and speeds:
Q. And this all happened in less than 30 feet, going 30 miles an hour?
Q. Do you know how many feet you travel at 30 miles pers hour in one second?
Q. It’s 44.
So you’re saying that this vehicle, in the amount of time it took to go 30 feet, which would take—God—less than two thirds of a second, was able to go from Lane 1 to Lane 3?
After the prosecution rested, Kwong moved for a judgment of acquittal. Kwong argued that even if the evidence is viewed in the light most favorable to the prosecution, the evidence is physically impossible. If Kwong had been going 30 mph from Lane 1 to Lane 3 and Officer Wong was 30 feet behind her, “[t]here would have been a crash.” In support of the argument, Kwong asked the District Court—the Hon. Judge Willie Domingo presiding—to take judicial notice of the fact that an object travelling at 60 mph is 88 feet per second. Therefore, if Kwong was going 30 mph, she’d be going 44 feet per second.
The District Court refused to take judicial notice of this fact and required expert testimony. The motion for judgment of acquittal was denied. After Kwong presented evidence, she was found guilty and sentenced. The ICA affirmed.
The Court must take Judicial Notice of “Generally Known” Things . . . like Math. Judicial notice of facts (as opposed to law) is controlled by Hawai'i Rules of Evidence (HRE) Rule 201:
Judicial notice of adjudicative facts.
. . .
(b) Kinds of facts. 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 who accuracy cannot reasonably be questioned.
(c) When discretionary. A court may take judicial notice, whether requested or not.
(d) When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.
In other words, “a fact is a proper subject for judicial notice if it is common knowledge or easily verifiable.” Uyeda v. Schermer, 144 Hawai'i 163, 172 43 P.3d 115, 124 (2019).
The HSC rejected the ICA’s holding that Kwong was supposed to provide “necessary information” before the trial court was required to take judicial notice of the fact that 30 mph is the same thing as 44 feet per second. According to the HSC, the “necessary information” requirement in HRE Rule 201(d) is satisfied when party (1) requests the court to take judicial notice, and (2) “provide[s] enough information to establish that the fact is either generally known or capable of accurate and ready determination.”
Understanding What is “Generally Known.” The HSC relied on multiple treatises and concluded that determine when a fact is “common knowledge” depends on how easy it can be ascertained: “if the truth of a fact is apparent after only a cursory examination, it is likely ‘common knowledge.’” See State v. Arena, 46 Haw. 315, 341, 379 P.2d 594, 609 (1963) (fact is generally known to “a person of ordinary understanding and observation.”).
Facts may also be “generally known” when it is derived through a generally known process—like mathematics. In the end, the HSC agreed with cases from other jurisdictions and held that simple conversions like the facts at issue here are “generally known” and upon request by Kwong should have been judicially noticed.
But it was Harmless. The HSC, however, held the error was harmless. According to the HSC, “[t]here is no mandatory requirement for a court of appeals to take judicial notice of any adjudicative fact, but, if it so chooses, such court may do so.” 29 Am. Jur. 2d Evidence § 37 (2012). Here, even if the appellate court did take judicial notice, the ICA did not err in refusing to take judicial notice of Kwong’s map on appeal. Kwong presented a map with annotations showing distances. Even if it did, the HSC held that it would not have changed the outcome. The HSC affirmed the judgment.
Does HRE Rule 201 Apply to the Appellate Courts? The HSC cited a treatise for the notion that there is no mandatory requirement for appellate courts to take judicial notice of facts. But judicial notice is mandatory when it is a fact that is generally known or capable of determination by resorting to sources and requested by a party. HRE Rule 201(b) & (d). But what about HRE Rule 201(f), which states that “judicial notice may be taken at any stage of the proceeding[?]”
The rules of evidence apply to “all courts of the State of Hawai'i[.]” HRE Rule 1101(a). Doesn’t this include appellate courts? Isn’t an appeal a “stage of the proceeding?” The HSC never addresses this. Perhaps it is implicit, but maybe not. We will have to wait and see.