CAUTION: Now Entering Grey Area: Indiana Judges’ Use of Internet Information

3-25-2012 Indiana:

Judges in the age of the Internet can find themselves in a tough spot. With such a variety and volume of information now so easily accessible, judges may be tempted to look outside the record for clarification, guidance, or simply to satiate curiosity. The accessibility of information via the Internet has begun to clash with the notion that there is a “duty of faithfulness to the record.”[i]

As the legal community has adapted to a new world of information at-your-fingertips, judges’ attitudes towards off-the-record Internet grazing has ranged from outright rejection to complete acceptance. The California case of People v. Mar, a case concerning whether the trial court could compel a defendant in a criminal case to wear a stun belt during the trial, is an example of the dangers of internet use by judges.[ii] In Mar, the California Supreme Court wanted to examine the physical attributes and functions of a stun belt; however, the trial court record did not contain any facts about the characteristics of a stun belt.[iii] The Court’s majority took it upon itself to look outside the record, and consequently admitted as true, promotional literature, student commentary, and progressive magazine articles found on the Internet concerning characteristics of a stun belt.[iv] The dissent condemned the use of unofficial websites saying, “[a] high school student who turned in a research paper with a bibliography like that would be unlikely to get high marks for either the distinction or balance of the authorities cited.”[v]

The 7th Circuit Court of Appeals also has addressed the issue of internet use by judges. In United States v. Harris, the defendant allegedly used the code words “Eighteenth Street” to set the price for the drugs he intended to sell.[vi] The majority took judicial notice of public records that there was no Eighteenth Street in the city of the exchange.[vii] However, the dissenting judge attacked this conclusion based on her own online research wherein she found two conflicting views on whether there was an Eighteenth Street.[viii] The majority then criticized the dissenting judge’s use of information from outside the record saying, “the dissent has resorted to the unprecedented tactic of citing extrinsic materials gleaned from conflicting Internet websites, newspaper articles, and the negligent remarks of assistant United States attorneys sprinkled in the wholly separate pleadings of a wholly separate case than the one at hand.”[ix]

As seen in the above examples, in the relatively new age of the Internet, differing views of the propriety of judicial use of the Internet have already emerged. Some believe that Internet evidence has no place in the legal system based on the idea that “anyone with an Internet service provider and a quarter to call it can set up a Web page that looks as official as a 1040 form, without the quality control that used to come from editors, fact checkers and large publishing houses.”[x] Others believe that only certain websites are trustworthy, essentially evaluating the websites by the authority of the person or place from which they inherently originate. For example, it might be easy to trust the information posted on government websites because government agencies are presumed to be unbiased reporters[xi] with expertise in the purported area. However, there is a tendency to be more suspicious of information from news broadcasting agencies because it could be tainted by political or commercial agendas, or simply by bad journalism. Even less reliable are websites such as Wikipedia and Urban Dictionary, which can be edited by anyone from a third grader to a qualified professional.

In the past decade, many Indiana Appellate judges have indicated openness to the use of the Internet in the courtroom. However, Indiana’s stance on off-the-record use of the Internet is still developing. Initially, Indiana Appellate judges were cautious and sporadic in their use in opinions of off-the-record information from the Internet. In little over a decade, the use of off-the-record Internet references in opinions by Indiana appellate judges has gradually expanded. Certainly this expanded use of sua sponte Internet searches warrants scrutiny and careful development that is consistent with the existing rules of evidence and appellate practice.

..For the rest of this article: by Gary Price