Federal Evidence Review

In supervised release revocation proceeding, judge “confirm[ed] hunches with a brief visit to [a] favorite search engine” because “in the not-so-distant past” such hunches “would have gone unconfirmed”; Second Circuit declines to find reversible error “when a judge, during the course of a revocation hearing where only a relaxed form of [FRE Judicial Notice] Rule 201 applies, states that he confirmed his intuition on a ‘matter[ ] of common knowledge.’” in United States v. Bari, 599 F.3d 176 (2d Cir. March 22, 2010) (No. 09-1074-CR)

The application of Internet information to court proceedings continues to emerge as an issue. Under what circumstances can a court consult the Internet and take judicial notice of information from the Internet. These issues were presented in a recent case involving review of a supervised release revocation proceeding.

FRE 201 provides a procedure for a court to take notice of “adjudicative” facts. See FRE 201(a). As explained by the Advisory Committee Note, adjudicative facts are “those to which the law is applied in the process of adjudication.” ACN (citation omitted). These are facts “concerning the immediate parties—who did what, where, when, how and with what motive or intent.” Id. In a recent case, the Second Circuit explained that while the FRE does not apply to proceedings like those for supervised release revocation, the evidence rules are still instructive for purposes of basing determinations in those actions on “verified facts” and “accurate knowledge.” The circuit noted that in applying sentencing law it was necessary for the court to use logic and often to act upon a hunch. In making these types of decisions, it was not necessary for the court to implement the rules of evidence, rather than to act upon logic.

In the case, defendant Bari had plead guilty to a count of bank robbery in 1995 and was sentenced to 188 months’ imprisonment. At the end of this incarceration, he commenced a five year term of supervised release. Shortly after completing his prison term, a supervised release revocation hearing was set after the Probation Office alleged new violations of law, including bank robbery and firearms offenses.

During his revocation hearing, the trial judge found him “not guilty of some of the violations alleged, but guilty of the bank robbery violation and a firearms violation. With respect to the bank robbery violation, the District Court based its finding that Bari had indeed violated the terms of his supervised release on the cumulative effect of multiple items of evidence.” This evidence included a voice identification of the defendant, similarities in height and weight between the defendant and the perpetrator, as confirmed by bank security camera footage. There were also “similarities between Bari’s car” and a car at the bank on the day of the robbery as well as the defendant’s “suspicious conduct at the bank or in the vicinity of the bank.” Bari, 599 F.3d at 177.

Among the most persuasive pieces of evidence, concluded the judge, was “evidence that the bank’s surveillance footage showed that the robber wore a yellow rain hat and that a yellow rain hat was found in the garage of Bari’s landlord.” According the judge: “It is just too much of a coincidence that the bank robber would be wearing the same hat that we find in [his landlord’s] garage.” As described by the judge: “‘there are clearly lots of yellow hats out there,’ and that ‘[o]ne can Google yellow rain hats and find lots of different yellow rain hats.’ Earlier in the proceeding, he had also stated that ‘[w]e did a Google search, and you can find yellow hats, yellow rain hats like this. But there are also lots of different rain hats, many different kinds of rain hats that one could buy.’” From all the evidence, including the similarity of hats worn, the judge concluded there were “too many coincidences.” As a result he concluded “by a preponderance of the evidence and plus some” that the prosecution had established that the defendant had violated his supervised release terms by robbing the victim bank. Bari, 599 F.3d at 178 (citations to record omitted). On appeal, the defendant contended that the judge’s independent Internet search on Google concerning the diversity of yellow rain hats violated the FRE.

The Second Circuit readily dismissed this ground, noting:

“As a general matter … the Federal Rules of Evidence, except those governing privileges, do not apply in supervised release revocation proceedings. It is well settled that the Federal Rules of Evidence do not apply in full in probation revocation proceedings.”

Bari, 599 F.3d at 179 (citing United States v. Aspinall, 389 F.3d 332, 344 (2d Cir. 2004) (concluding that the Federal Rules of Evidence, except those governing privileges, do not apply at probation revocation proceedings). To give further emphasis to this point, the circuit also noted that “several of our sister Circuits have also concluded that the Federal Rules of Evidence do not apply at supervised release revocation hearings Bari, 599 F.3d at 179 n.3 (citing United States v . Lloyd, 566 F.3d 341, 343 (3d Cir. 2009) ; United States v. Black Bear, 542 F.3d 249, 255 (8th Cir.2008) ; United States v. Verduzco, 330 F.3d 1182, 1185 (9th Cir. 2003); United States v. Armstrong, 187 F.3d 392, 394 (4th Cir. 1999)).

Although the FRE did not apply in the defendant’s case, this did not mean the rules were of no effect:

“the Rules nevertheless provide some useful guidelines to ensure that any findings made by a district court at such hearings are based on ‘verified facts’ and ‘accurate knowledge.’ …We emphasize that the evidentiary constraints in such proceedings should be loosened, although not altogether absent. Furthermore, in relaxing those constraints, we consider ‘verified facts’ and ‘accurate knowledge’ to be the touchstones of our inquiry. Put differently, district courts need not comply with the Federal Rules of Evidence during supervised release revocation proceedings, so long as their findings are based on ‘verified facts’ and ‘accurate knowledge.’”

Bari, 599 F.3d at 179 (citing Morrissey v. Brewer, 408 U.S. 471, 489 (1972) (constitutionality of “flexible” evidentiary guidelines in parole revocation proceedings before state parole boards); United States v. Aspinall, 389 F.3d 332, 344 (2d Cir. 2004) (“in revocation proceedings the normal evidentiary constrictions should be relaxed.”)).

Having identified the limited scope of the FRE, the circuit then addressed whether the judge’s Internet research would qualify under the relaxed evidentiary standard. The circuit first disagreed that the Internet search was actually a search. Rather the court’s observation on unlikely coincidence that both the perpetrator and the defendant had the same type of yellow hat was more of “a statement on a ‘matter[ ] of common knowledge.’ Common sense leads one to suppose that there is not only one type of yellow rain hat for sale. Instead, one would imagine that there are many types of yellow rain hats, with one sufficient to suit nearly any taste in brim-width or shade. The District Court’s independent Internet search served only to confirm this common sense supposition.” Bari, 599 F.3d at 180 (citation omitted).

The circuit found that there was no reversible error for the judge to use an Internet search. The judge was only doing it “to confirm a reasonable intuition of a matter of common knowledge.” As explained by the circuit:

“As broadband speeds increase and Internet search engines improve, the cost of confirming one’s intuitions decreases. 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.

“As the cost of confirming one’s intuition decreases, we would expect to see more judges doing just that. More generally, with 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. We will not consider it reversible error when a judge, during the course of a revocation hearing where only a relaxed form of Rule 201 applies, states that he confirmed his intuition on a ‘matter[ ] of common knowledge.’”

Bari, 599 F.3d at 181 (citation omitted).

Bari is a narrow decision. It does not suggest that use of an Internet search engine is an acceptable option under the FRE. Rather, it stands for the proposition that if the parties do not object, a court may apply judgment and logic. What Bari did not address is whether, had the defendant preserved an objection to the admission of the Internet evidence, the court could have acted upon hunches.