The information age has placed so much knowledge at our fingertips that it is often easy to simply accept what one finds online as true without any further inquiry. Perhaps if this was being done to confirm the week-end’s sports results, or the latest gossip surrounding Hollywood celebrities I would be less troubled then when courts begin to do the same thing. For better or worse as more and more courts and attorneys are turning to the Internet for fast, free information the notion of judicial notice is beginning to bend to embrace this new reality.
Traditionally, judges have been free to accept at face value certain pieces of information without further proffers of proof. This is known as taking judicial notice and is allowed under the rules of evidence in most if not all jurisdictions. For example the Federal Rules of Evidence 201(b) states that:
(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:
(1) is generally known within the trial court’s territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
While this rule allowed courts to rely upon such traditional sources of information as the Oxford English Dictionary it is now being used (perhaps unintentionally) to give authority to various web based sources. Early in the information age web sites that were cited for the type of facts that were “not subject to reasonable dispute” were government web sites such as the Federal Reserve Board and the United States Naval Observatory. More recently courts have begun to allow for the citation of just about any web site with little or no real fact checking.
Some courts are resisting the notion that just because it can easily be found online it deserves judicial notice. The court in Flores v. Texas specifically declined to extend judicial notice to information found on Wikipedia. While the Flores court is to be applauded it appears to be on the losing end of this game. More recently the Eastern District of New York in the case of United States v. Sessa took judicial notice of distance by use of Google Maps claiming that “[c]ourts commonly use internet mapping tools to take judicial notice of distance and geography.” (see page 65 of the opinion).
The use of online sources as the basis for judicial notice will surely grow over time. I am not suggesting that we stop this growing practice, only that the courts take caution in what they decide is “not subject to reasonable dispute” because too often material from the Internet is posted with little to no editorial oversight. The information age has certainly made information easier to find, the challenge now is to make sure the courts maintain high standards as they decide what deserves judicial notice and what deserves to be relegated to the gossip pages.
- Post by Michael Whiteman, Associate Dean for Law Library Services & Information Technology