concurring.
In the extraordinary circumstances of this case, I concur in the majority’s conclusion that this court can, on appeal, properly take judicial notice of the scientific validity of the application of lidar technology at issue here. Accordingly, I join in that aspect of the majority’s reasoning — albeit not in its alternative rationale that the lidar-generated measurements present a “clear case” for admission as scientific evidence, State v. O’Key, 321 Or 285, 293, 899 P2d 663 (1995) — and concur in its disposition.
To begin with, what I am not joining: I have no idea what qualifies as a “clear case” for admissibility as scientific evidence. See generally 243 Or App at 318-20. O’Key employs that term without amplification or refinement, and no subsequent reported Oregon decision has applied that term, much less given it any content. Certainly — and respectfully — the majority here does not either. At most, it can be surmised that, in the majority’s understanding, a “clear case” is one in which the validity and reliability of some *325scientific technique/application is so indisputable that we know it when we see it.1
I am not so confident of my capacity individually — or of our capacity institutionally — to apply so amorphous a standard in a consistently principled fashion. Nor do I understand why, if a matter is so “clear,” it is not concurrently subject to judicial notice in accordance with well-worn principles governing judicial notice of nonadjudicative facts. Thus, this qualified concurrence.
That said, and to be sure, invocation of judicial notice in this case is hardly routine either. Indeed, it is exceptional. That is so not only because appellate judicial notice is, in any event, rare but also, and particularly, because this appears to be the first reported decision in which an Oregon appellate court has judicially noticed foundational facts establishing the admissibility under the Brown/O’Key construct of “scientific evidence.” See O’Key, 321 Or at 297-307; State v. Brown, 297 Or 404, 417, 687 P2d 751 (1984).
I concur in the extraordinary appellate invocation of judicial notice in this case because of the conjunction of three considerations:
First, although no Oregon appellate court has previously invoked judicial notice to sustain the admissibility of purported scientific evidence, in Brown itself (in which the court held that polygraph evidence was not admissible as scientific evidence) the Supreme Court unabashedly referred to, and extensively relied on, extrinsic evidence pertaining to foundational matters that had not been submitted to the trial court. See Brown, 297 Or at 420 n 7; see generally id. at 420-22, 424-38; see also O’Key, 321 Or at 293.
Second, as noted by the majority, before taking notice of the scientific validity of lidar devices in measuring distance, this court invited supplemental submissions by the *326parties specifically addressing the propriety of taking judicial notice in this context. See 243 Or App at 321.2 Although appellant’s counsel raised various abstract objections to the taking of judicial notice on appeal, those objections were predicated almost exclusively on the requisites of OEC 201(a), which, as the majority correctly emphasizes, apply only to the judicial notice of adjudicative facts — and not to nonadjudicative facts, e.g., those pertaining to the foundational admissibility of evidence.
Very significantly — indeed, for me, of dispositive significance — nothing in appellant’s supplemental submission disputes the substantive validity of lidar-generated measurements of distance. That is, appellant points to no reported decision from any other jurisdiction rejecting lidar technology as invalid or unreliable or to any extrinsic source substantiating some colorable debate in the scientific community in that regard. If there were, in fact, some meaningful dispute in the scientific or legal communities regarding the validity of lidar-generated evidence, it might well be that, regardless of the inapplicability of OEC 201(a) to nonadjudicative facts, considerations of due process would preclude appellate judicial notice. But there appears to be no such dispute.
Third, given the pervasive use of lidar technology in law enforcement efforts and the concomitant introduction of lidar-generated evidence in criminal prosecutions, prudential considerations militate strongly in favor of reaching and conclusively resolving the question of whether lidar-generated measurements of distance are admissible as scientific evidence. Those considerations are, at base, highly practical: To date, there has been no published Oregon appellate opinion conclusively addressing the general admissibility of such evidence. So long as that circumstance persists, in every case in which the prosecution attempts to introduce evidence of lidar-generated measurements, the state, upon *327proper objection, will be required to present a full foundational showing comporting with the Brown/O’Key construct. Unless, or until, a defendant who is convicted upon such evidence, following a full foundational showing, appeals and assigns error to the admission of the lidar-generated evidence, there will be no occasion to issue an appellate opinion settling the matter.3 Given those circumstances, it is better to do so now, rather than (if ever) later.
Ireadily acknowledge that the speed of light has been “clearly established and that, as an abstract matter, depending on the time elapsed, one should be able to determine the distance traveled by light in that interval. What is far from obvious (to me, at least) is that that abstract principle can be — and, indeed, has been— concretely reduced to, and applied by, technology that consistently yields accurate measurements.
In our letter, we directed that the parties “address whether the lidar evidence in this case comes within the category of scientific evidence whose validity can be established through this court’s judicial notice of the content of publicly available sources and materials not included in the record on appeal.”
Conversely, in any case in which the state neglected to make a foundational showing, a reversal would be based on the inadequacy of the state’s proffer — and would not resolve the general admissibility under Brown / O’Key of lidar-generated evidence.