Does anybody see how Hernandez (TCA 6/4/03) can be squared with TEX. R. EVID. 201(f) (judicial notice can be taken at any stage). Why should it be impossible for judicial notice to serve as the sole support for a trial court ruling on scientific reliability?

Where were those lovers of stare decisis when Emerson et. al was thrown overboard?

Its pretty simple, the appellate court is not the gatekeeper and they don't create the record. They review the trial judge's decision for abuse of discretion to see if there was clear and convincing evidence to support admission under Rule 705(c).

But, then we have all these conflicting statements, viz: "A party seeking to introduce evidence of a scientific principle need not always present . . . material to satisfy the Kelly test." "[J]udicial notice on appeal cannot serve as the sole source of support . . . concerning scientific reliability." "[Situations exist] where a technique, approach, or body of knowledge is so well-established that courts can safely take judicial notice of its validity on the basis of widely disseminated information and precedent." "[T]he proponent or opponent of specific scientific evidence [must hereafter] prepare a brief containing excerpts of testimony from other [gatekeeper] hearings, appropriate affidavits, cites to scientific materials and judicial cases" for use at future hearings. And my favorite: "[the trial judge] need not rely solely upon admissible evidence in conducting his 'gatekeeping' function." Cf. Rule 703: "If of a type reasonably relied upon by experts in the particular field . . . [none of] the facts or data need not be admissible in evidence."

My questions are these:

(1) Can a prior judicial precedent alone establish admissibility (e.g., you say "Judge the reliability of the underlying scientific principle was established in Emerson or Roberson" or whatever case, and that is the end of the inquiry?

(2) Is it enough to merely offer hearsay statements of persons (who may or may not be shown to be experts) that assert the reliability of the test or principle at issue, especially if the indication is such statements have been widely disseminated, or is this resorting to sources whose accuracy can reasonably be questioned?

(3)Will TDCAA provide us with the materials necessary to "prove up" the admissibility of the most common types of "scientific" evidence?

(4)Is there some reason the CCA did not apply the harmless error device to examine whether the trial judge's truncated admissibility hearing in Hernandez "did not result in the admission of unreliable evidence" as in Jackson, 17 S.W.3d at 672 (aside from the fact that they were not up to "an appellate scientific seminar" in this case)?

(5) Judicial notice is a wonderful thing, but isn't the threshold test- "a fact not subject to reasonable dispute"- in the eye of the beholder in this context, making it a pretty awkward means of satisfying Rule 104(a)?

Doesn't
Winfrey

conflict with Hernandez

I always thought that Hernandez was wrong but at least it was about the admission of evidence. Winfrey relies upon outside the record materials to establish that it was irrational for the jury to convict on the basis to dog scent evidence. Based upon the record before the jury, how can one say the jury's reliance on the dog evidence was irrational?

I think you've got a point, but I think they are getting away with it because the opinion relates a commission report to the testimony of the dog handler. Additionally, they seem to rely upon the science discussed in other cases, which I thought Hernandez contemplated. (But yes, it is kind of funny that they start the paragraph referring to "sister courts" and then reach a bunch of conclusions based upon treatises. I assumed, perhaps incorrectly, that they got that stuff from other opinions.)

Of coursse, I don't see why they got into the scientific reliability at all when the State conceded (according to the Court) that a dog scent alone is not enough to sustain a conviction. I mean, I see why they did it, but I don't know that it was necessary to resolve the case.

I also think that this case is a good example of how useless factual sufficiency review is. If a case it weak enough to be factually insufficient, it's probably legally insufficient.

Of course, this all may be an effectively theoretical discussion as I kind of translated the concurring opinion from "four of us want you to know we aren't passing on the issue of admissibility" to "dude, we're totally going to say this evidence is inadmissible once the four of us get a chance to grant PDR." But I'm known for being paranoid.

[This message was edited by David Newell on 09-28-10 at .]

It's not paranoia if they really are out to get you....