Dimitry Tsimberg, Esq.

Should Judges Be Allowed to Google?

In the United States and abroad, judges are turning to internet search engines (such as Google) to look up information about companies embroiled in litigation, and to check and challenge facts and statistics presented by attorneys in court. Dozens of judges have penned opinions describing Google and other search engines as a valuable and crucial source of knowledge.

But is allowing judges to "Google" for information about a case they are deciding appropriate? Isn't it troubling if a judge is taking facts that are reported in a public medium as proof of matters in a case? Aren't facts supposed to be proved or disproved in the courtroom under the rules of evidence?

Indeed, in a bitter dissent in the case of People v. Mar (2002) 28 Cal. 4th 1201, California Supreme Court Justice Janice Brown blasted her colleagues for relying on Google when deciding that stun belts should not have been used in a trial. The majority opinion cited newspaper and magazine articles, as well as pieces written by law students, that reported accidental activations of the React stun belt.

"We could have waited for a case that raised these questions on an adequate record," Brown wrote. "Instead, the majority, rushing to judgment after conducting an embarrassing Google.com search for information outside the record, has tied the hands of the legislature, to the likely peril of judges, bailiffs and ordinary citizens called upon to do their civic duty."

Consider these other U.S. and foreign cases involving "googling."

1. After conducting a Web search, an Australian federal court denied a visa request from an unidentified man from Sri Lanka. The court said the man's claim to be a famous filmmaker worried about persecution at home was "exaggerated," after a query turned up a blank. "His name does not appear when put into a search engine such as Google," one member of the government tribunal wrote. "I would have expected--if he indeed has the notoriety and is as well-known as he claims--that his name would have appeared at least in some context." Oh really, why on google? What about the evidence this man submitted in support of his petition? What difference does it make if he was famous or not? The issue is persecution, right?

2. A New York federal judge said a Google search had helped him decide that "24 Hour Fitness" should not receive an injunction against a competitor that owned 24hourfitness.com. The judge said a search for "fitness industry" on the Internet revealed more than 1.6 million hits, mainly linking to sites related to physical training and conditioning. Is this an appropriate way to define the issue (or google search for that matter)?

3. Google and other search engines helped a Maryland federal judge to reach the opposite conclusion. The court granted an injunction against a critic of mortgage lender Fairbanks Capital who had set up his own anti-Fairbanks Web site. But when the company's trademarked phrase was used in a keyword search in the Google search engine, approximately 349 matches were listed, the judge found. "The (critical) Web site is the first Web site listed. The Fairbanks Web site is not listed in the first 10 results on Google," the judge said. So, why is the gripe site (and not Google) responsible for placement? Whose fault is it that the gripe site is more popular?

Is It Legal?

Rule 201 of the Federal Rules of Evidence says trial judges may take "judicial notice" of only facts "not subject to reasonable dispute" and either "generally known" in the community or "capable of accurate and ready determination." Similarly, California Evidence Code section 452 circumscribes the matters which can be judicially noticed, and precludes evidence of alleged facts and propositions where the matter is not capable of "immediate and accurate determination by resort to sources of reasonably indisputable accuracy."

One law professor commented: "The evidentiary requirements are very important. If a judge goes off in his chambers and does a Google search and issues an opinion, the parties have not had a chance to argue about what 40,000 hits means. That's an important safeguard."

But are the evidentiary requirements safeguards at all? I can imagine more than one judge justifying a Google search as "accurate and immediate determination of generally known facts." Thus, the evidentiary rules are too vague and easily malleable, and as the law and practice now stand, judges are not precluded from using Google. Should parties be placed in the position of defending themselves not only against their legal adversaries in court, but also against Google's (at times questionable) search results?

This post is for educational and information purposes only. It is not legal advice on any particular case, and merely a general opinion of one California lawyer. You should not rely on it without consulting a competent attorney in your area about your specific case and facts. It is not intended to, and shall not, create an attorney-client relationship. So, be happy you got some free info and use your grey matter!

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