• by Wendy Davis , Staff Writer @wendyndavis, March 22, 2010

Jurors are causing mistrials by conducting their own Web research, but it's apparently OK for judges to base their rulings on material they find online.

In a ruling issued today, the Second Circuit Court of Appeals said that judges can use search engines to help them render decisions. "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," the court wrote in the case.

The ruling stemmed from a proceeding against Anthony Bari, who was released from prison in May of 2008 after spending 13 years incarcerated for bank robbery. In September of 2008, Bari became a suspect in a new bank robbery.

Rather than bring a new criminal case against him, the government sought to revoke his release on the theory that he had committed a new bank robbery. The strongest evidence against him was that the perpetrator of the September robbery was videotaped wearing a yellow rain hat similar to one found in the garage of Bari's landlord.

At his release revocation hearing, U.S. District Court Judge Denny Chin said that it was "just too much of a coincidence" that the bank robber would wear what appeared to be the same type of hat that was found in Bari's landlord's garage. To support his point that the similarity wasn't coincidental, Chin said his chambers conducted a Google search for yellow rain hats and found many different types.

Chin then revoked Bari's release and sentenced him to 36 months. Bari appealed, arguing that Chin shouldn't have relied on Google search results to draw conclusions about the hat.

Today, the Second Circuit ruled against Bari, saying that there's no reason to prevent a judge from using Google "to confirm an intuition."

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

On some level, the appellate decision realistically takes into account the fact that search engines have changed the way everyone -- including judges -- accesses information.

But, it's also problematic. Judges are supposed to base their decisions on evidence that's been presented in court -- where lawyers can challenge it -- and not on Web searches they conduct in chambers. Consider, results pages can change from one day to the next -- or even one hour to the next. The results also can vary significantly depending on what search terms are used. This afternoon, the top result on Google for "yellow rain hat" was a link marked "shopping" that took visitors to the site SafetyCentral.com. The top result for "yellow rain hats" was a Reuters story about the ruling.