Stephen Marchese v. Allison Aebersold, 2016 SC 000644

Background

Marchese and Aebersold were former romantic partners; Aebersold sought an emergency protective order and a domestic violence order (DVO) days after their breakup, alleging stalking, threats, and controlling behavior.
At the DVO hearing both parties testified pro se; Aebersold described shoving (when drunk), persistent contact, threats to post explicit photos, and parking outside her home; Marchese admitted some contact and threatening to post photos but denied other allegations.
During a recess the trial judge asked for Marchese's Social Security number, later announced she had his SSN and "a record from other states," and asserted Marchese had an assault conviction from Virginia Beach without disclosing the source.
The judge relied on that undisclosed extrajudicial information, curtailed Marchese's opportunity to respond, announced the DVO, and directed Marchese to leave; the trial court docketed findings including a history of domestic violence.
The Court of Appeals acknowledged the extrajudicial research was error but affirmed the DVO as harmless; the Kentucky Supreme Court granted discretionary review.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the judge improperly consider extrajudicial evidence?	Aebersold relied on the judge's consideration as supporting the DVO.	Marchese argued the judge relied on undisclosed extrajudicial information and should have recused.	The judge's consultation of an undisclosed source gave her personal knowledge of disputed facts and required recusal; failure to do so was structural error.
Could the judge take judicial notice of an out-of-state conviction without disclosing source?	Aebersold tacitly accepted the judge's statement of conviction.	Marchese argued the conviction was not properly established for judicial notice under KRE 201 and related rules.	The court held the alleged Virginia conviction did not meet KRE 201 criteria and the judge abused discretion by treating it as judicially noticed without source or authentication.
Did admission of the undisclosed information violate hearsay rules?	Aebersold implicitly treated the judge's statement as admissible fact.	Marchese argued the judge relied on out-of-court statements to prove the truth of the conviction (classic hearsay) with no applicable exception.	The court found the judge's use of the unidentified out-of-court statement was hearsay and could not be sustained without source or an exception.
Did the procedures deny due process under KRE 201(e)?	Aebersold did not challenge the lack of procedural steps at trial.	Marchese argued he was denied the opportunity to be heard about the noticed fact as required by KRE 201(e) and due process.	The court held denying Marchese a meaningful chance to challenge the noticed fact violated KRE 201(e) and constitutional due process.

Key Cases Cited

Alred v. Commonwealth, 395 S.W.3d 417 (Ky. 2012) (judge must recuse when personal knowledge from extrajudicial sources creates disqualifying bias)
Liteky v. United States, 510 U.S. 540 (1994) (comments revealing opinions from extrajudicial sources can show bias requiring disqualification)
McCleery v. Commonwealth, 410 S.W.3d 597 (Ky. 2013) (structural error doctrine; certain errors preclude harmless-error review)
Finnell v. Commonwealth, 295 S.W.3d 829 (Ky. 2009) (authentic, official records required to prove convictions; unreliable online sources insufficient)
Meece v. Commonwealth, 348 S.W.3d 627 (Ky. 2011) (distinguishing judicial notice of the occurrence/timing of a public record from notice of the truth of its substantive findings)
Rogers v. Commonwealth, 366 S.W.3d 446 (Ky. 2012) (limitations on judicial notice of facts drawn from records)
Neder v. United States, 527 U.S. 1 (1999) (harmless error jurisprudence distinguishing structural errors)