This issue came up recently in the context of a defamation case against the Scranton Times, for its reporting about grand jury proceedings. Can the orders entered in those grand jury proceedings be used as evidence in the defamation case to show what had really taken place before the grand jury?
This is important for the plaintiff in the defamation case, because he alleges that the reporting was totally at variance with what happened before the grand jury. But keep in mind, the parties to the defamation case were not present before the grand jury proceedings at issue, nor were they parties to that action. (Previously, the parties had litigated whether the newspaper must reveal its source.)
The plaintiffs, Castellani and Corcoran maintained that the orders were admissible under Pennsylvania Rule of Evidence 201 regarding judicial notice of adjudicative facts. They also also maintained that a second article from The Scranton Times amounted to a second instance of defamation when it not only reported on the judges’ orders but repeated the alleged defamatory statements made in the first article and maintained it had a reliable source.
The newspaper, however, argued the orders were hearsay that came out of a proceeding to which the paper was not a party. The paper also maintained that the orders did not constitute indisputably accurate facts, as required for admission under Rule 201.
Lackawanna County Common Pleas Judge Robert A. Mazzoni ruled last year that there was scant authority available, but a review of cases involving judicial notice led him to find the bulk of the evidence was not admissible.
“Although courts are free to take judicial notice of the existence or filing of an order, courts should not be permitted to take judicial notice of the trust of hearsay statements in the decision,” Mazzoni said in a June 8, 2011, ruling. “Thus, facts adjudicated in another case, unless undisputed, generally fall outside the boundaries of Rule 201(b). These facts do not meet the test of indisputability, they are not the subject of common knowledge and are not derived from an unimpeachable source.”
We will have to wait and see how the appellate courts deal with this issue.
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