Thursday, December 12, 2013
As noted earlier on this blog, Andrew Ferguson and I have been exploring the judicial notice possibilities raised by the exponential increase in access to information through the Internet.
Our forthcoming piece points out the strong urge for judges, jurors and parties to clarify ambiguities and omissions in the record through resort to Internet sources (like Google Maps). We suggest that the curiosity be funneled through the judicial notice rule (FRE 201), and propose a series of factors that judges should consider in applying that rule to facts found via Internet sources.
Justice Breyer helpfully illustrated the phenomenon in oral argument earlier this month in United States v. Appel – a case that hinges on the location of a protestor vis a vis a military base when arrested.
Justice Breyer took a look at the (apparently) deficient record in the case on the point and went to “the Google maps” to find out what was really going on:
“JUSTICE BREYER: [T]he reason I'm asking this question is the record is not developed. I looked at the Google maps. It looked to me like this area is sort of a suburban house with a lawn in front of it, and you drive along the street, and you suspect that the street may belong to the city a little way up the lawn; but beyond that, it probably belongs to the homeowner.”
Now if only there was a mechanism for bringing information like that into the record . . . . .