State v. William R. Peterson, 222 Wis. 2d 449, 588 N.W.2d 84 (Ct. App. 1998)
For Peterson: Donna L. Hintze, SPD, Madison Appellate
A trial court sitting as fact-finder6 may derive inferences from the testimony and take judicial notice of a fact that is not subject to reasonable dispute,7 but it may not establish as an adjudicative fact that which is known to the judge as an individual. Hoeft v. Friedli, 164 Wis.2d 178, 189, 473 N.W.2d 604, 607-08 (Ct. App. 1991). In Hoeft the trial judge knew, from personal experience, that the author of a particular letter in evidence had a sense of humor. Based on that personal knowledge, the court discounted the letter’s evidentiary value. We held this was an erroneous exercise of discretion because the author’s “sense of humor was neither part of the evidence nor a fact generally known.” Id. at 189-90, 473 N.W.2d at 608. Similarly, here the trial judge’s opinion of what one can see on the river at night is neither part of the record nor a generally known fact suitable for judicial notice. As we stated in Hoeft, “[w]e recognize that the trial judge’s opinion was guided by good faith reliance upon his past experience and personal knowledge.” Id. at 189, 473 N.W.2d at 608. However, the trial judge may not rely on his own experience on the river at night to determine whether the videotape was an accurate portrayal of the demonstration. We conclude that the court erroneously exercised its discretion in doing so.