Judge’s Internet Search to Confirm Hunch Is OK

It’s not error for a federal judge to use Google to confirm his hunch that there are different types of yellow rain hats when conducting a revocation of supervised release hearing.

A judge said he did a Google search and found yellow rain hats like the defendant wore. “But there are also lots of different rain hats, many different kinds of rain hats that one could buy,” he said, finding it was more than just coincidence that a yellow rain hat on a bank robber was nearly identical to the yellow rain hat found in the garage of the landlord of the defendant. Considering the hat along with other circumstantial evidence, the judge found the defendant guilty and revoked his supervised release. The defendant appealed the use of the Google search by the judge.

The appellate court found that the court’s “independent Internet search served only to confirm” his “common sense supposition” that there is not only one type of yellow rain hat for sale.” The Internet merely decreases the “costs of confirming one’s intuitions,” the court wrote. “Twenty years ago, to confirm an intuition about the variety of rain hats, a trial judge may have needed to travel to a local department store to survey the rain hats on offer. Rather than expend that time, he likely would have relied on his common sense to take judicial notice of the fact that not all rain hats are alike. Today, however, a judge need only take a few moments to confirm his intuition by conducting a basic Internet search.”

The appellate court said it expects more judges will use the Internet in the future. “[W]ith so much information at our fingertips (almost literally), we all likely confirm hunches with a brief visit to our favorite search engine that in the not-so-distant past would have gone unconfirmed.” Such a search by a judge is not reversible error, the court said.

United States of America v. Anthony Bari, Second Cir. No. 09-1074-cr, issued March 22, 2010.