¶ 77. {dissenting). The majority opinion contains strong language heralding the constitutional right to a trial by jury. Yet, after *754setting forth its soaring language, the majority does an about face.
¶ 78. It explains that it matters not whether Smith actually knew that he had a right to have a jury determine the fact of drug quantity. And, it matters not whether that fact was found by a judge or jury. According to the majority, it is no big deal because although the judge erred by violating Smith's constitutional right to a trial by jury, the error is harmless.
¶ 79. I disagree with the majority's application of the harmless error doctrine here because it extends that doctrine beyond the limited circumstances in the cases it cites and further erodes the vitality of the constitutional right to a trial by jury. Instead, I would remand to the circuit court for a determination of whether Smith knowingly, voluntarily, and intelligently waived his right to a jury determination of all elements of the crime. Accordingly, although I agree with the majority's determination regarding the sufficiency of the evidence, I respectfully dissent.
I
¶ 80. The majority recognizes that Smith had a right to a jury determination of each and every fact that increases the penalty for a crime beyond the statutory maximum. Majority op., ¶¶ 50-51. It agrees with the parties that the circuit court erred by directing an answer to the question of the weight of the marijuana without securing Smith's knowing, intelligent, and voluntary waiver of a jury determination of that fact. Id., ¶¶ 53, 55. It acknowledges that it is "a far different thing for a defendant to stipulate to a fact than it is for him to waive his constitutional right to a jury determination of that fact." Id., ¶ 57.
*755¶ 81. Nevertheless, relying on State v. Harvey, 2002 WI 93, 254 Wis. 2d 442, 647 N.W.2d 189, and Neder v. United States, 527 U.S. 1 (1999), the majority asserts that "a harmless error analysis is required by our well-reasoned case law and that of the United States Supreme Court." Majority op., ¶ 58. Although the majority acknowledges that neither Harvey nor Neder involved a stipulation, it concludes that "their rationales nevertheless control the outcome here." Id., ¶ 62. It contends: "Simply put, a defendant who agrees to a fact cannot be heard to later complain that his trial was rendered fundamentally unfair when that fact was found, merely because the wrong neutral adjudicator found it." Id. ¶ 63.
¶ 82. The majority refrains from overruling State v. Livingston, 159 Wis. 2d 561, 464 N.W.2d 839 (1991), and State v. Hauk, 2002 WI App 226, 257 Wis. 2d 579, 652 N.W.2d 393, cases in which the court concluded that a harmless error analysis was inapplicable when the circuit court failed to secure the defendant's personal waiver of the right to a jury trial. Without further explanation, the majority concludes that "those cases involved different factual circumstances from those at issue here." Majority op., ¶ 62 n.19.
II
¶ 83. The right to a jury trial is enshrined in two places in the United States Constitution. U.S. Const, art. Ill, § 2 ("the Trial of all Crimes, except in Cases of Impeachment, shall be by Jury"); U.S. Const, amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury"). After the American Revolution, Alexander Hamilton wrote that "[t]he friends and adversaries of the plan of the [Constitutional] convention, if they *756agree in nothing else, concur at least in the value they set upon the trial by jury[.]" The Federalist No. 83, p. 426 (M. Beloff ed. 1987).
¶ 84. The majority opinion contains strong language heralding the right to a jury trial. It asserts that the right to a criminal jury trial is "fundamental," and that it can be waived only if the defendant has "sufficient awareness of the relevant circumstances and likely consequences." Id., ¶¶ 53-54. The majority proclaims that no valid waiver could occur if the defendant were unaware that he had a right to a jury determination of every elemental fact. Id., ¶ 54.
¶ 85. After setting forth this soaring language, however, the majority does an about face. It explains that it matters not whether Smith actually knew that he had a right to a jury determination of drug quantity because "an error does not affect the framework within which the trial proceeds . . . where an impartial adjudicator, i.e., a judge, finds a fact rather than an alternative impartial adjudicator, i.e., a jury." Id., ¶ 63. "Simply put," the majority asserts, "a defendant who agrees to a fact cannot be heard to later complain that his trial was rendered fundamentally unfair when that fact was found, merely because the wrong neutral adjudicator found it." Id. (emphasis added).
¶ 86. This explanation evinces a lack of appreciation of the reason underlying the right to a trial of one's peers. The identity of the fact finder is no trifling matter.
¶ 87. The point of the right to a jury trial is that the identity of the "neutral adjudicator" is important. Our system gives the guilt determination to a jury because, "absent voluntary waiver of the jury right, the Constitution does not trust judges to make determinations of criminal guilt." Neder, 527 U.S. at 32 (Scalia, J., *757dissenting) (emphasis omitted). Further, if the majority's explanation were extended to its logical conclusion, the harmless error doctrine could eviscerate the requirement that waivers of the constitutional right to a jury trial be knowing, voluntary, and intelligent.
Ill
¶ 88. Contrary to the majority, I do not believe that we are compelled by Harvey and Neder to apply a harmless error analysis in this case. The majority's application of the harmless error doctrine here extends that doctrine beyond the limited circumstances in those cases and further erodes the vitality of the constitutional right to a trial by jury.1
¶ 89. In Harvey, the defendant was charged with selling narcotics within 1,000 feet of a city park. 254 Wis. 2d 442, ¶ 2. One of the elements of the charged offense was that the park in question, Penn Park, was a state, county, city, village, or town park. The circuit court took judicial notice of the fact that Penn Park was a city park, and it directed the jury to accept that fact as true. Id., ¶ 3. On review, this court applied a harmless error analysis, reasoning that "[t]he elemental fact on which the jury was improperly instructed is undisputed and indisputable: Penn Park is a city park, and no one says otherwise." Id., ¶ 48.
*758¶ 90. In Neder, the defendant was charged with tax fraud when he failed to report nearly $5 million in income which was obtained from a fraudulent real estate scheme. 527 U.S. at 6. The elements of the statute were that Neder made false statements to the IRS and that the false statements were material. The jury found that Neder knowingly and falsely reported his income, and the district court determined that Neder's false statement was material. Id.
¶ 91. In both Harvey and Neder, the facts that were taken from the jury without a valid waiver were not only undisputed; the nature of the facts at issue in Harvey and Neder made them indisputable.
¶ 92. In Harvey, the court took judicial notice of the fact that Penn Park was a city park. A court may take judicial notice of a fact only if it is "not subject to reasonable dispute." See Wis. Stat. § 902.01(2) ("Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute ....") A fact may be indisputable if it is "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Wis. Stat. § 902.01(2)(b).2
¶ 93. The kind of fact at issue in Neder was likewise indisputable because there can be no reasonable dispute that the failure to report $5 million in income is "material" to a charge of tax fraud. The tax fraud statute prohibited the filing of any return that the taxpayer "[did] not believe to be true and correct as to every material matter," 527 U.S. at 16, and "material *759matter" was construed to mean any information necessary for a determination of tax liability.
¶ 94. The fact of materiality was not a fact that was susceptible to formal proof, but rather, it was implicit in the finding that Neder had falsified his income. Once the jury found that Neder falsely reported his total income, the fact of materiality followed, ipso facto, from the fact the jury did find.
¶ 95. By contrast, the elemental fact at issue in this case, the weight of the marijuana, is not the kind of fact that can be determined by judicial notice. Further, it does not follow, ipso facto, from any of the facts that the jury did find. Instead, this elemental fact is the type of fact that is often disputed by defendants and could have been disputed in this case by Smith. Although Smith opted not to dispute this fact, his stipulation does not transform the nature of the fact from one that can be subject to reasonable dispute into one that is indisputable.
¶ 96. The majority contends that the distinction I make between undisputed facts and indisputable facts is unworkable. Majority op., ¶¶ 72-73. However, contrary to the majority, this distinction can be found aplenty, especially in regard to judicial notice jurisprudence. The long history and substantive case law interpreting and applying the rule of judicial notice reveal that this distinction has been employed by courts for many years. See e.g., Edmund M. Morgan, Judicial Notice, 57 Harvard L. Rev. 269 (1944).
¶ 97. Because the majority fails to understand the important distinction between a fact that is undisputed and a fact that is indisputable, see majority op., ¶ 71, it forges a new inroad on the right to a trial by jury. It permits a judge to find a fact in the jury's stead without first securing a knowing, voluntary, and intelligent *760waiver of the right to a jury determination — even though the facts found by the judge could be subject to dispute.3
¶ 98. Rather than further eroding the right to trial by jury, the majority should take this opportunity to limit the erosion of the jury trial right. As Blackstone explained, "though begun in trifles, the precedent may gradually increase and spread to the utter disuse of juries in questions of the most momentous concern." William Blackstone, 4 Commentaries *350. The majority should pay heed to the warning issued by Blackstone and repeated by Justice Scalia: "However convenient intrusions on the jury right may appear at first," it should be remembered "that delays and little inconveniences in the forms of justice are the price that all free nations must pay for their liberty in more substantial matters." Neder, 527 U.S. at 40-41 (Scalia, J., dissenting) (quoting Blackstone, supra).
¶ 99. I would not expand the harmless error doctrine beyond the limited circumstances at issue in Harvey and Neder.4 Under Harvey and Neder, a harmless error analysis can be employed in circumstances *761where a trial court erroneously found a single indisputable element of the crime without obtaining the defendant's personal waiver.
IV
¶ 100. Here, Smith personally stipulated to the facts necessary to prove the weight of the marijuana. However, he did not personally waive his right to a jury determination of this fact. As the majority contends, a knowing waiver of a jury determination of an element must be personal and must be on the record. I would remand this case to the circuit court for a determination of whether Smith knowingly, voluntarily, and intelligently waived the right to a jury determination of the weight of the marijuana.
¶ 101. At first glance, this remedy appears to be at odds with Livingston and Hauk, cases the majority asserts it need not overrule. In Livingston, the circuit court conducted a bench trial without securing the defendant's personal, on-the-record jury waiver. Livingston, 159 Wis. 2d at 565. Relying on the language of Wis. Stat. § 972.02(1),5 this court concluded that it could not conduct a harmless error inquiry and that it would be inappropriate to remand for an assessment of whether Livingston knowingly, intelligently, and voluntarily waived the right to a jury trial. Id. at 573. Rather, *762the Livingston court asserted, the only remedy under the statute was a new trial. Id,.; see also Hauk, 257 Wis. 2d 579, ¶ 37.
¶ 102. The court's rationale in Livingston was based on a difference between constitutional guarantee of a jury trial and the language of Wis. Stat. § 972.02(1), which provides a procedure for waiving that right. Here, the majority's analysis casts doubt on Livingston's continued vitality. Although it contends in a footnote that Livingston need not be overruled, it undercuts the holding of that case by concluding that a violation of the statutory procedure does not necessarily require a new trial. Majority op., ¶ 62 n.19. If Livingston's interpretation of Wis. Stat. § 972.02(1) is no longer good law, a remand for an evidentiary hearing is an available remedy.
¶ 103. In this case, we cannot determine from the record whether Smith knowingly, voluntarily, and intelligently waived his right to a jury determination of the stipulated elements. Id., ¶ 57. There are certain parallels between this situation and the situation at issue in a Bangert case, where we cannot tell from the record whether the defendant knowingly, voluntarily, and intelligently waived the right to a jury determination of guilt when entering a guilty plea. See State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986). If the court cannot determine from a plea colloquy whether the defendant knowingly, intelligently, and voluntarily waived the right to a jury determination of guilt, it is appropriate to remand for a postconviction evidentiary hearing. See id.
¶ 104. Under this circumstance, I would remand for a postconviction evidentiary hearing. At the hearing, the circuit court would assess whether Smith knowingly, voluntarily, and intelligently waived his right to a jury determination of all elements of the crime.
*763¶ 105. For the reasons set forth above, I respectfully dissent.
¶ 106. I am authorized to state that CHIEF JUSTICE SHIRLEY S. ABRAHAMSON joins this dissent.Additionally, I note that the test for harmless error has been stated in at least two ways by this court. In State v. Vanmanivong, 2003 WI 41, ¶ 35, 261 Wis. 2d 202, 661 N.W.2d 76, the court stated the test as follows: "whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." By contrast, in State v. Tucker, 2003 WI 12, ¶ 26, 259 Wis. 2d 484, 657 N.W.2d 374, the court stated the following test: "an error is harmless if it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error."
The fact that Penn Park was a city park could be verified by consulting publications of the City of Madison Parks Division. State v. Harvey, 2002 WI 93, ¶ 48 n.13, 254 Wis. 2d 442, 647 N.W.2d 189.
f According to the majority, my analysis implies that there would be a harmful error if Smith entered a knowing, intelligent, and voluntary waiver of his right to a jury determination of the weight of the marijuana. Majority op., ¶ 72. To the contrary, had Smith validly waived this right, there would be no error at all, and his conviction would stand.
As an additional limitation, I note that the Harvey and Neder cases both involve a situation where the trial court erred by removing just one element from the jury's consideration. The Neder Court explained: "We have often applied harmless-error analysis to cases involving improper instructions on a single element of the offense." Neder v. United States, 527 U.S. 1, 9 (1999). In his dissent to the Neder decision, Justice Scalia wrote that under the Court's reasoning, "We know that all elements cannot be taken from the jury, and that one can." He asked, *761"How many is too many!?]" Without some limitation on the number of elements that can be taken from the jury, the harmless error doctrine could nullify the jury trial right. Id. at 33 (Scalia, J. dissenting).
"Except as otherwise provided in this chapter, criminal cases shall be tried by a jury ... unless the defendant waives a jury in writing or by statement in open court or under s. 967.08(2)(b), on the record, with the approval of the court and the consent of the state." Wis. Stat. § 972.02(1).