Ingram: Companion site for Criminal Evidence, 11th Edition

Case Studies

Chapter 05: Judicial Notice

Overview —Based on: DeLong v. State, 310 Ga. App. 518, 2011 Ga. App. LEXIS 605 (2011).

Defendant DeLong challenged a judgment of the trial court, which convicted him of child molestation, violating the Georgia’s Controlled Substances Act by distributing a Schedule IV drug, Zolpidem, which was commonly known as Ambien, and influencing witnesses. The appellate court reviewed the case and determined that the convictions for drug distribution and influencing witnesses could not be sustained. The prosecution failed to prove that the Georgia statute regulated the drug, Ambien. There was no testimony or physical evidence presented by the prosecution that Ambien was the trade name for Zolpidem. Although the prosecution offered evidence that the defendant admitted to distributing Ambien and introduced testimony that “Ambien” was a Schedule IV controlled substance, the defendant contended that the government was required to identify “Ambien” as a trade name for Zolpidem through admissible evidence and that taking judicial notice that Ambien was a trade name for Zolpidem was not appropriate. In essence, defendant DeLong contended that the prosecution failed to prove that he violated the Controlled Substances Act because while Zolpidem was listed as a controlled substance, Ambien was not, and there was no testimony or physical evidence presented by the prosecutor at trial linking Ambien to Zolpidem.

Questions

Under circumstances in which a controlled substance has a trade name and a generic scientific name, is it appropriate to take judicial notice that the two names are for one drug, one of which is listed as a controlled substance?
Your Answer

Correct Answer

No. The fact that a generic scientific name may also indicate an identical formulation produced in a trade name drug is not considered an appropriate topic for the taking of judicial notice. In Georgia, courts have previously held that the trade name of a statutorily designated controlled substance is not the proper subject of judicial notice. The Georgia prosecutor could have easily avoided the reversal of this conviction by simply asking one more question of the investigator who identified “Ambien” as a Schedule IV Controlled Substance or by introducing physical evidence linking the trade name “Ambien” to its statutorily listed equivalent, Zolpidem.
Under the facts of this case, could it be argued that, since it is a well-known fact and beyond dispute that Zolpidem is the scientific/generic name for Ambien, the trial judge and the appellate judges should have taken judicial notice that the two names describe the same drug that is a controlled substance?
Your Answer

Correct Answer

Yes. Scientific facts that are readily verifiable or are beyond reasonable dispute can be the subject of judicial notice either at the trial court level or at any appellate level. Since there seems to be virtually no dispute that Ambien and Zolpidem are the same chemical composition, and resort to a standard reference work would have confirmed this undisputed fact, judicial notice could arguably be appropriate in this case, although the Georgia courts disagreed. See Chapter 5, Sections 5.4 and 5.7.