Legal Commentary

Second Circuit Finds No Reversible Error in District Court?s Use of Google

Yesterday, in United States v. Bari, 2010 WL 1006555 (2d Cir., March 27, 2010), the Second Circuit held that in the context of a supervised release revocation hearing, where relaxed rules of evidence apply, it was not reversible error for a judge to employ an Internet search to confirm a reasonable intuition on a matter of common knowledge.  Importantly, the Court did not hold that the opposite is true ? that facts gleaned from an Internet search may be treated as common knowledge (because if that?s the case, there?s life on Mars, intelligent design is a valid scientific theory, and Elvis is still alive . . .). 

Facts

Bari, a convicted bank robber, was charged with violating the terms of his supervised release by committing another bank robbery.  At a hearing on the violation, the district judge noted the strong circumstantial case against Bari ? ?too many coincidences? that supported his conclusion that Bari had indeed robbed another bank, including the yellow rain hat found in Bari?s landlord?s basement that looked awfully like the hat worn by the bank robber in surveillance video tapes.  He pointed out that there are ?lots of different yellow rain hats that one can buy,? something he confirmed with a simple Google search. 

On appeal, Bari argued that the court violated Fed.R.Evid. 605 ? which prohibits a judge from testifying as a witness at a trial ? ?by conducting its own Internet search and relying on the results of that search in making its decision to revoke Bari?s supervised release.?

Holding

First, the Court held that ?the Federal Rules of Evidence do not apply with their normal force in supervised release revocation proceedings . . . so long as [the judges?] findings are based on ?verifed facts? and ?accurate knowledge.??

Second, the Court held that the availability of many different types of yellow rain hats was a ?matter of common knowledge? of which the district court could take judicial notice under Fed.R.Evid. 201 - ?[t]he District Court?s independent Internet search served only to confirm this common sense supposition.?  The fact that the judge chose to confirm his intuition with an easy Internet search, rather than rely solely on his common sense, was thus incidental.  The dispositive issue was that the fact being confirmed was already one of common knowledge. 

Comment

The reason why the Google search was useful in this particular case ? confirming the district judge?s reasonable intuition, which on its own, passed muster under Fed.R.Evid. 201 ? is why courts should be suspicious of them in general.  Google is the perfect enabler of confirmation bias ? the tendency to notice data that supports our beliefs and ignore the data that doesn?t ? and since our intuitions are not always reasonable or accurate, reliance on Google searches as an investigatory tool should generally be met with skepticism.

Lawyers: David Hammer (defendant); AUSA Peter Skinner

Full post as published by New York Federal Criminal Practice on March 23, 2010 (boomark / email).