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City of Milwaukee v. Bell7/11/2000
n 902.01 reads:
Judicial notice of adjudicative facts. (1) Scope. This section governs only judicial notice of adjudicative facts.
(2) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (a) generally known within the territorial jurisdiction of the trial court or (b) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
(3) When Discretionary. A judge or court may take judicial notice, whether requested or not.
(4) When Mandatory. A judge or court shall take judicial notice if requested by a party and supplied with the necessary information.
(5) Opportunity To Be Heard. 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.
(6) Time of Taking Notice. Judicial notice may be taken at any stage of the proceeding.
(7) Instructing Jury. The judge shall instruct the jury to accept as established any facts judicially noticed.
Despite the language found in § 902.01(4), which suggests that the trial court is obligated to take judicial notice if a party requests and supplies the trial court with the necessary underpinnings to prove the fact to be judicially noticed, case law has long held that a trial court has discretion to decide whether to take judicial notice of a fact. See, e.g., Fringer v. Venema, 26 Wis. 2d 366, 372, 132 N.W.2d 565 (1965) (" he trial court may in its discretion take judicial notice of facts of `verifiable certainty' either upon its own motion or upon request of a party to the action."). Moreover, this view is consistent with other holdings because "`judicial notice' is simply a process whereby one party is relieved of the burden of producing evidence to prove a certain fact." State v. Watson, 227 Wis. 2d 167, 208, 595 N.W.2d 403 (1999). Since the trial court has discretion to admit or deny evidence, Pophal v. Siverhus, 168 Wis. 2d 533, 546, 484 N.W.2d 555 (Ct. App. 1992) (" he admission of evidence is generally within the discretion of the trial court."), it logically follows that the trial court has discretion in the admission of judicially noticed facts. Here, the trial court determined that neither evidence of Bell's acquittal nor evidence of his conviction in the municipal court would be admitted into evidence or told to the jury. Given that the trial in the circuit court was a trial de novo, the trial court's decision was both reasonable and a proper exercise of discretion.
. Next, this court addresses Bell's second and fourth arguments. He contends that the trial court erred in denying his motion to prohibit the City from eliciting testimony concerning his impairment at the time of his arrest. He also argues that the trial court erred in allowing the City to elicit testimony concerning his failure to satisfactorily perform the field sobriety tests. With respect to Bell's motion seeking to prohibit the City from advancing any evidence that he was impaired, Bell argues that since he was found "not guilty" of the operating while intoxicated charge, issue preclusion barred the City from submitting evidence of his impairment. The trial court found that issue preclusion did not apply. This court agrees.
. "Issue preclusion requires the actual litigation of an issue which is necessary to the outcome of the first action." May v. Tri-County Trails Comm'n, 220 Wis. 2d 729, 733, 583 N.W.2d 878 (Ct. App. 1998). The determination of whether issue preclusion (also kn
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