Tuesday, March 30, 2010

Even judges Google

The Second Circuit recently ruled that a federal district judge who used Google to research his hunch about an issue raised in a criminal trial did not violate the federal rules of evidence.  The defendant in the case was suspected of robbing a bank while on parole.  A surveillance video showed the suspect wearing a yellow rain hat similar to the one recovered from the defendant's landlord's garage.  The judge took the liberty of running a Google search to see whether such a hat was commonly available.  The defendant claimed that the judge's use of Google violated "Rule 605 of the Federal Rules of Evidence, which states that 'the judge presiding at the trial may not testify in that trial as a witness,' by conducting the Internet search and relying on the outcome to make his ruling."

On appeal, the Second Circuit vindicated the trial judge's impromptu factual investigation by concluding that:

[The Judge's] use of the Web was merely the electronic equivalent of what a judge in an earlier era would have done: gone to a local department store to confirm in person the "common-sense" belief that a variety of yellow rain hats, like that worn by a bank robber, can be purchased.

As 'broadband speeds increase and Internet search engines improve,' judicial use of computers is only likely to increase, the court said.

'As the cost of confirming one's intuition decreases, we would expect to see more judges doing just that,' the court held. '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.'

The government had argued that the Judge's use of Google in this circumstance was permissible under Fed R. Evid. 201 which allows courts to "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."

You can read the Second Circuit's per curiam opinion here and more commentary from law.com here.

I am the scholarship dude.

(jbl)

http://lawprofessors.typepad.com/legalwriting/2010/03/even-judges-google.html

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