Law.com, When Judges Google:

The 2nd U.S. Circuit Court of Appeals was recently faced with an unusual appeal in which a criminal defendant raised an intriguing question about the limits on what perspectives a judge can properly bring to bear on the bench. In United States v Bari, No. 09 1074-cr, 2010 WL 1006555 (2d Cir. Mar. 22, 2010), the 2nd Circuit considered whether then-District Judge Denny Chin (now on the 2nd Circuit bench) erred in a supervised release revocation hearing in considering information confirmed by the court's own Internet searching. In other words, can a judge confirm his own hunches by Googling?

Let's look at the facts. Judge Chin had been confronted with a defendant who had allegedly violated his term of supervised release (essentially probation) following a 36 month jail term for bank robbery. The revocation hearing was based on a new bank robbery. While there were questions raised about the identification of Bari, Judge Chin made a number of factual findings based on the evidence present to him. Most relevant to the appeal, though, was Judge Chin's finding that the strongest piece of evidence was that the robber (whom he concluded was Bari) wore a yellow rain hat.

The bank's surveillance footage showed that the robber wore a yellow rain hat. A yellow rain hat of the same type was found in the garage of Bari's landlord. Judge Chin found it "too much of a coincidence" that it wasn't Bari's hat, given the similarity between the hats. But here's the rub — Judge Chin reasoned "there are clearly lots of yellow hats out there," and "[o]ne can Google yellow rain hats and find lots of different yellow rain hats." Earlier in the hearing, Judge Chin acknowledged that his chambers had done a Google search and found "yellow hats, yellow rain hats, yellow rain hats like this. But there are lots of different rain hats, many different kinds of rain hats that one could buy." U.S. v. Bari, 2010 WL 1006555, at *1.

So what's the big deal? Judge Chin's use of Google confirmed his intuition that not all yellow rain hats are the same, and the one observed in the video footage was the same as the one in Bari's landlord's garage. But Bari sought to controvert Judge Chin's finding for his having gone dehors the record to improperly rely on facts not in evidence in deciding to revoke Bari's supervised release. When you put it that way, maybe it sounds objectionable. But is that really what happened?

Well, what if the results of Judge Chin's search showed instead that yellow rain hats only came in one model, based either on a visit to his favorite search engine, or else by having taken a walk the length of Fifth Avenue on a rainy day in New York and observed only one type. Is there any difference between the two — a Google search, a walk down Fifth Avenue two months before the hearing, or perhaps a paper he wrote many years ago on the social significance of yellow rain hats? Do we want judges as hermits who come to the pristine laboratory of a courtroom unencumbered by why they can — or did — learn in the real world?

The 2nd Circuit affirmed Bari's revocation by concluding that the court's comments were akin to taking judicial notice of a fact. The Court cleanly compartmentalized the evidentiary basis by which a court can take judicial notice of facts into two categories: "matters of common knowledge" and "facts capable of verification." U.S. v. Bari, 2010 WL 1006555 at *3 (citing Federal Rule of Evidence 201). Perhaps given the palpably obvious failing of the second category in these circumstances, the Court concluded that Judge Chin did not err by using an Internet search "to confirm a reasonable intuition on a matter of common knowledge." The court also notably "relaxed the evidentiary constraints" in this instance because that the Federal Rules of Evidence need not apply with normal force in a supervised released revocation proceeding.