Judges can “Google” too

By Legal Eagle

The Second Circuit of the Court of Appeals in the US has handed down a decision concluding that it’s permissible for a judge to use Google to confirm a hunch in some circumstances (United States v Bari).

The defendant was one Anthony Bari who was released on terms from prison after committing a bank robbery. However, the District Court revoked the terms of his supervised release, finding that he had committed a second bank robbery in breach of the terms of his release, and Bari was sentenced to thirty-six months’ imprisonment.

The case came before Judge Denny Chin (whom we’ve met before on this blog, most recently here and also as the judge in the Madoff case here). Judge Chin was convinced that it was likely Bari committed the robbery for a number of reasons:

  • A bank employee had identified Bari’s voice as the voice of the robber because of its distinctive nature;
  • The robber had a similar weight, height and posture to Bari;
  • Bari’s car was similar to one which drove away from the bank shortly after the robbery;
  • Bari had been behaving in a suspicious manner around the vicinity of the bank in the days before the robbery;
  • Bari had a stolen numberplate in his car; and
  • There was evidence to show that Bari was in the vicinity of the bank on the day of the robbery itself.

But the precise issue in this case concerned a yellow rain hat worn by the robber. At page 4 of the Court of Appeals judgment, the court said:

Most relevant to this appeal, Judge Chin considered evidence that the bank’s surveillance footage showed that the robber wore a yellow rain hat and that a yellow rain hat was found in the garage of Bari’s landlord. He stated as follows:

In addition, and I think this is the strongest piece of evidence frankly, we have the yellow hat. I am convinced from looking at the surveillance video [from the bank] of September 9 that [the hat found in the garage] is the same type of hat as appears in the video. It may not be precisely the actual hat, but it is the same type of hat. 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. …

Judge Chin then noted several similarities between the hat found in the landlord’s garage and the hat worn by the robber. To emphasize the similarity between the hats, he stated that “there are clearly lots of yellow hats out there,” and that “[o]ne can Google yellow rain hats and find lots of different yellow rain hats.” …Earlier in the proceeding, he had also stated that “[w]e did a Google search, and you can find yellow hats, yellow rain hats like  this. But there are also lots of different rain hats, many different kinds of rain hats that one could buy.”

Therefore Judge Chin found that the government had proven that Bari violated his release terms.

The Court of Appeals found that, contrary to Bari’s submissions, the Federal Rules of Evidence did not apply in full in revocation of release hearings. Normal evidentiary constrictions were more relaxed. Courts did not need to comply with the Federal Rules of Evidence as long as their findings were based on verified facts and accurate knowledge.

The question was then whether a Google search was appropriate under these relaxed constrictions. The Court found that under Rule 201 of the Federal Rules of Evidence, “[a] court may take judicial notice, whether requested or not” of a fact that is “not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”

The Court of Appeals found that it was commonsense to suppose that there would be more than one kind of yellow rain hat available. The Court concluded:

As broadband speeds increase and Internet search engines improve, the cost of confirming one’s intuitions decreases. 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. Today, however, a judge need only take a few moments to confirm his intuition by conducting a basic Internet search. See Reno v. ACLU, 521 U.S. 844, 853 (1997) (“The Web is … comparable … to both a vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services.”).

As the cost of confirming one’s intuition decreases, we would expect to see more judges doing just that. More generally, with 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. We will not consider it reversible error when a judge, during the course of a revocation hearing where only a relaxed form of Rule 201 applies, states that he confirmed his intuition on a “matter[ ] of common knowledge.”

So Bari’s revocation of release and further sentence stood.

Obviously this is a revocation of release proceeding to which special rules apply, as the Court of Appeals noted. But it is interesting to see that common law courts are moving more towards judges making their own inquiries (more similar to a civilian law judge, who has an inquisitorial role). (I’ve discussed the pros and cons of the inquisitorial system and the common law here).

Perhaps the two systems may be moving towards one another? The change may be wrought by the fact that information is so readily available on the Internet – you don’t need to get counsel to go fetch it for you.

9 Comments

  1. Tim
    Posted March 23, 2010 at 3:22 pm | Permalink

    Thanks for this.

    I believe that in the United States, where I reside, in both the state court systems, and in the federal jurisdiction, we have in some respects been moving toward a continental system and away from judge-made common-law. The reason I say this is because more and more, our law is governed by statutes. I practiced law for nine years and have worked for judges for five, and in both civil and criminal law, courts look to statutes to decide the issues before them. As well they should, in my view. Where a legislature has acted, on a particular issue, its judgment should be enforced by courts, because, again in my view, legislatures make law, while courts enforce it. Of course there are areas where common-law, as opposed to statutes, still prevail. Civil law of services and real estate, constitutional law, and others. But in nearly every other area, statutes control. Of course, the interpretation of the statutes is done through the common-law method of precedent.

  2. John H.
    Posted March 23, 2010 at 7:56 pm | Permalink

    Ok fess up, who told judges that the internet exists?!

  3. Posted March 23, 2010 at 10:48 pm | Permalink

    A scary thought, John H. I have visions of members of the bench being diverted by Facebook…

  4. Posted March 24, 2010 at 12:32 pm | Permalink

    I had a case involving some rural land where the easiest way for the judge to get an idea of the lie of the land would have been for us to do a kind of google earth swoop over it in court.

    The judge said that we couldn’t because google earth wasn’t evidence and I think he was sort of right.

    In retrospect, perhaps a witness could have been asked to take the judge through a view on google earth or else I myself could have taken the judge to it in open court as a kind of aide memoire. It would certainly have been helpful because the judge hadn’t much of an idea about the place and quite frankly I don’t see if it is much different from looking at a map or clicking on travelmate to find out where, say, Bossley Park is, though that was far from a critical issue in that particular case.

  5. Posted March 25, 2010 at 8:26 pm | Permalink

    The difficulty with using a whiteboard is that it will be impossible, even if only used as an aide memoire for the purpose of submissions, to incorporate it into the transcript.

    You can have a view even in civil cases, but costs and time and trouble mostly preclude it.

  6. professori_au
    Posted March 28, 2010 at 7:06 pm | Permalink

    Hi All.
    I have not posted for some time as I have been busy on issues relating to the failure of our child Protection system to do the job. But may be another post later. However to the matter at hand.

    I recognise the difficulty for some people to visualise sites/actions etc., and I accept judges would be no different. A useful device used by members of a group I was involved in some action against a company and a government agency was the use of a Power Point presentation. The judge required copies to be provided to all parties to the action and this was easily done.

    It proved very useful in clarifying some points and issues so that it assisted the judge to deliver an informed decision as well as a legal decision. Perhaps this method may be a useful tool in other courts and subsequently reduce time trying to visualise something froma verbal description.

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