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Taking Judicial Notice in the Internet Age

By William J. Cantrell, Litigation News Associate Editor – May 25, 2010

A recent decision by the Second Circuit raises questions about the propriety of trial court judges using the Internet to confirm their “hunches” when taking judicial notice.


In United States v. Bari [PDF], the Second Circuit Court of Appeals held it was not reversible error for the district court to consider information it confirmed through its own Internet search in deciding to revoke a defendant’s supervised release.


A Matter of Common Knowledge
The issue was raised in a criminal appeal by defendant, Anthony Bari, from the district court’s order revoking Bari’s term of supervised release after his conviction for bank robbery.


The revocation hearing concerned whether Bari had violated the terms of his supervised release by committing another bank robbery. The strongest piece of evidence at the hearing was bank surveillance footage showing that the robber wore a yellow rain hat. A similar yellow rain hat was found in the garage of the defendant’s landlord.


“It is just too much of a coincidence that the bank robber would be wearing the same hat that we find in [his landlord’s] garage,” the district court observed.


To emphasize the similarities between the hat found in the garage and the one worn by the robber, the court said “[o]ne can Google yellow rain hats and find lots of different yellow rain hats.” The district court judge also noted that he had done a Google search to confirm this observation.


The court then found that Bari had violated the terms of his supervised release by robbing a bank. It sentenced Bari to 36 months in prison.


Is the Judge Becoming a Witness?
Bari argued that the district court judge’s observations from an Internet search violated Federal Rule of Evidence 605, which prohibits a judge presiding over a trial from testifying in the trial as a witness.


On appeal, the Second Circuit disagreed. Instead, it found that the district court judge permissibly took judicial notice, under Federal Rule of Evidence 201, of the fact that there are many kinds of rain hats for sale. The appellant court noted that revocation hearings have used a relaxed form of Rule 201. It reasoned that “if a fact is of a kind that a judge may properly take judicial notice,” the judge is not improperly testifying by noting the fact.


“If, after all, a judge was improperly testifying at trial each time he took judicial notice of a fact, it would be effectively impermissible to take judicial notice of any fact,” the Second Circuit opined.


The district court’s Internet search “served only to confirm [a] common sense supposition,” the Second Circuit concluded.


“Twenty years ago, to confirm an intuition about the variety of rain hats, a trial judge may have needed to travel to a local department store to survey the rain hats on offer. Rather than expend that time, he likely would have relied on his common sense to take judicial notice of the fact that not all rain hats are alike,” the Second Circuit observed.


“Today, however, a judge need only take a few moments to confirm his intuition by conducting a basic Internet search,” the court said.


“[W]ith so much information at our fingertips (almost literally), we all likely confirm hunches with a brief visit to our favorite search engine that in the not-so-distant past would have gone unconfirmed,” the court said.


“As the cost of confirming one’s intuition decreases, we would expect to see more judges doing just that,” the court opined.


Impact of the Internet on Judicial Notice
Agreeing with the Second Circuit’s prediction of the increased role the Internet will have on judicial notice, Thomas Gilson, Phoenix, cochair of the ABA Section of Litigation’s Criminal Litigation Committee, opines that “as Gen-X and Gen-Y lawyers are appointed to the bench, it is inevitable that judges will be turning to the Internet as they ponder questions of judicial notice.”


“But which Internet sources are ‘accurate’ enough to support a judicially noticed fact? The website of the National Archives? Wikipedia? PerezHilton.com?” questions Gilson.


“In the Internet age, there are more unreliable sources of information than ever before,” he notes.


“For litigators though, there is still the threshold question: Under Rule 201, there are two types of information for judicial notice: those matters of common knowledge and those facts ‘capable of verification,’” says Daniel Schwartz, Hartford, CT, chair of the Social Media Subcommittee of the Section’s Technology for the Litigator Committee.


“What is unanswered is whether Google is a good enough source that it can verify certain facts. I don’t think we’re there yet,” Schwartz says.


Best Practices for Litigating Judicial Notice
When assessing whether taking judicial notice of a fact is appropriate, Gilson reminds litigators of Rule 201(e), which provides the parties an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter to be noticed.


“This reduces the risk that a court will judicially notice a fact based on an unreliable Internet source,” suggests Gilson.


“The reliability rules for taking judicial notice have not changed,” adds Dori Ann Hanswirth, New York, cochair of the Section’s Trial Practice Committee.


“Internet searches are a prime method for gathering information. We all have to learn how to verify that information. This is as true for students doing research projects as it is for attorneys and judges,” she says.


For instance, “[i]f Mr. Bari’s attorney had any reason to attack the accuracy or reliability of the information that the judge found, then he could have raised that issue,” says Hanswirth.


However, as a general proposition, there is no value “in complaining that someone found information on the Internet absent some persuasive evidence that the information itself is false or otherwise tainted,” she notes.


Keywords: Litigation, judicial notice, Internet, Second Circuit, United States v. Bari


 

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