Public Defense

The court?s most recent per curiam addresses a district court?s use of the resultgs of an Internet search, in part, to find that the defendant violated his supervised release.

On release from a long bank robbery sentence, Bari faced a supervised release violation for robbing another bank. The district court found him guilty after a two-day hearing. The court cited: a bank employee?s identification of Bari?s voice; the similarity between Bari?s height, weight and posture to those described by witnesses to the robbery; Bari?s suspicious conduct at or near the bank around the time of the robbery; the similarity between Bari?s car and one seen near the bank just after the robbery, and; the similarity between the yellow rain hat worn by the robber - as depicted in a surveillance video - and one found in Bari?s landlord?s garage. As to this last point, the district judge noted that there were lots of different kinds of yellow rain hats - a fact he confirmed with a Google search - and that the similarity persuaded him that Bari was the bank robber.

On appeal, Bari argued that the Internet search violated Evidence Rule 605, which prevents a judge from testifying as a witness, and Rule 201, which deals with judicial notice. The circuit affirmed. It first considered whether the Federal Rules of Evidence apply at a supervised release revocation hearing at all. Noting that it had already resolved this question for probation revocations, the court held that the rules of evidence, except those governing privileges, do not apply ?with their normal force in supervised release revocation hearings.? They do, however, provide ?some useful guidelines? that will help ensure that the district court?s findings are based on ?verified facts? and ?accurate knowledge.? The evidentiary constraints at such hearings ?should be loosened, although not altogether absent.?

In a footnote, the court disposed of the Rule 605 claim, noting that the rule does not apply in the context of judicial notice. If a judge improperly testified whenever he took judicial notice of a fact, ?it would be effectively impermissible to take judicial notice of any fact.?

Moreover, the district court did not err in conducting an independent Internet search ?to confirm its intuition that there are many types of yellow rain hats for sale.? Rule 201 permits a judge to take judicial notice of a fact that is ?not subject to reasonable dispute? that is either ?generally known? or ?capable of accurate and ready determination? through accurate sources. Here, the fact at issue was indeed one of ?common knowledge,? since common sense would lead one to suppose that there are many types of yellow rain hats. The Google search here served only to confirm this.

The court closed by noting the utility of the Internet in answering this type of question. Instead of going to a department store to survey the rain hats for sale, a judge need take only a few moments to ?confirm his intuition by conducting a basic Internet search.? And, ?[a]s the cost of confirming one?s intuition decreases, we would expect to see more judges doing just that.? Thus, at a revocation hearing, where only a ?relaxed form? of Rule 201 applies, a judge is free to use a search engine to confirm his intuition on a matter of common knowledge.

Full post as published by Second Circuit Blog on March 27, 2010 (boomark / email).