Prof. Jon M. Garon @ the Chase Law & Informatics Institute blog recently posted about the evolution of courts’ use of judicial notice now that society is accustomed to finding any information on the Internet. In short, judicial notice is when I court accepts some factual assertion as true and Garon is clearly worried that courts are using it too liberally and not critically assessing the source of the information. Garon cites the Federal Rules of Evidence as a typical standard used for judicial notice:
(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:
- (1) is generally known within the trial court’s territorial jurisdiction; or
- (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
(Fed. Rule of Evid. 201(b))
This made me reflect on my perceptions of the idea of judicial notice when I was first introduced to it in law school (approx. 1997) compared to today. I have to admit that it seemed like a sensible and rather boring concept back then but after 10 years working in an information industry I can not think of many examples that I would say meet (2) above. While Garon is worried that the information age has made us less critical of the source of information, I think it has made me more critical.
This debate ties together two of my recent posts. One on the idea that consumers’ reliance on information retrieval tools has made them less critical of the source of the information and another where I thought lawyers may not be always be able to ethically assume the reliability of information from legal research services. Although I view data critically, I am not sure if this view is necessarily common or whether it is shaped by my particular work experience. I would sum up my view as a belief that all data of a significant size contains errors and, therefore, should be taken with a grain of salt. In the example of a lawyer’s ethical responsibility, I think this means not focusing on whether errors exist but on what processes exist to prevent or correct them. In the context of judicial notice, I think this means allowing room to argue that no matter how reliable a particular source is — errors happen. So, if the location of an address is judicially noticed by relying on Google Maps in 99 prior cases, don’t preclude the argument that Google Maps is wrong in the 100th case.
