wikipedia – Attorney Evan Brown

October 27, 2008 Litigation

No judicial notice for Wikipedia entry

Flores v. State, No. 2008 WL 4683960 (Tx. App. October 23, 2008)

Not surprisingly, a Texas appellate court has held that it should not take judicial notice of a Wikipedia article.

Defendant was tried and convicted for cocaine possession. He appealed his sentence, arguing the trial court improperly admitted two oral statements the defendant made while being interrogated. Defendant apparently objected to the method investigators used to interrogate him, because he asked the appellate court to take judicial notice of the Wikipedia entry for the John Reid technique.

Citing to a Wall Street Journal article from earlier this year, the court declined to treat Wikipedia as a “reliable website,” instead invoking the overworn observation that Wikipedia’s greatest strength (its open platform) is also its greatest weakness.

At least one other court has declined giving judicial notice to a Wikipedia entry. This past May, the defendant in the trademark case Cynergy Ergonomics, Inc. v. Ergonomic Partners, Inc., 2008 WL 2064967 (E.D. Mo. May 14, 2008) asked the court to take judicial notice of the Wikipedia article about DaVinci’s Vitruvian Man.

The Cynergy Ergonomics court looked to Fed. R. Evid. 201 which provides that a court may take judicial notice of a fact not in the record where it is “either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” While not expressly criticizing the reliability of Wikipedia, the court found that the entry did not meet the criteria for judicial notice.

Interrogation room photo courtesy Flickr user Vincent Tulio via this Creative Commons license. Vitruvian Man has been in the public domain for quite some time.

September 2, 2008 Evidence, Litigation, Miscellaneous

Slamming Wikipedia’s reliability not enough in immigration case

Badasa v. Mukasey, — F.3d —, 2008 WL 3981817 (8th Cir. Aug. 29, 2008)

Illegal alien Badasa sought asylum in the United States. To establish her identity, she submitted to the Immigration Judge a “laissez-passer” issued by the Ethiopian government. Opposing the application for asylum, the Department of Homeland Security submitted a number of items, including a Wikipedia article, to show that a laissez-passer is merely a document issued for a one-time purpose based on information provided by the applicant. The Immigration Judge was not convinced that the laissez-passer established Badasa’s identity, and denied the application for asylum.

Badasa appealed to the Board of Immigration Appeals, which agreed that asylum should be denied. It soundly criticized Wikipedia’s reliability to establish the meaning of the document at issue, but found there was enough other evidence to support the Immigration Judge’s conclusion that Badasa had failed to establish her identity. But the Board of Immigration Appeals failed to discuss this other evidence, therefore running afoul of the administrative law textbook case of SEC v. Chenery, 318 U.S. 80 (1943).

So the Eighth Circuit sent the case back to the Board of Immigration Appeals to make additional findings. The court observed that the Board of Immigration Appeals found that “Badasa was not prejudiced by the [Immigration Judge’s] reliance on Wikipedia, but [the Board of Immigration Appeals] made no independent determination that Badasa failed to establish her identity.” In short, the Board of Immigration Appeals had focused only on why the use of Wikipedia made the case less “solid,” and did not address the lack of solidity found in any of the other evidence connected with the laissez-passer used to establish identity.

February 18, 2008 Computer Crime

MySpace friend request results in criminal charges

People v. Fernino, — N.Y.S.2d —-, 2008 WL 382348 (N.Y.City Crim.Ct. February 13, 2008)

An order of protection, issued by a New York family court, required that defendant Fernino have no contact with a certain Delgrosso. After Fernino added Delgrosso as a “friend” on MySpace, she was charged with contempt of court for allegedly violating the order of protection.

Fernino moved to dismiss the criminal complaint against her, arguing that even if the allegations were true, the purported “contact” through “friending” Degrosso would not support a conviction on the charges. The court denied the motion to dismiss.

Finding that adding Delgrosso as a friend in the social networking context was prohibited “contact,” the court cited to People v. Kochanowski, 186 Misc.2d 441, 442 (App Term, 2nd Dept 2000) and People v. Johnson, 208 A.D.2d 1051 (3rd Dept 1994). In Kochanowski, the appellate court affirmed the harassment conviction of a defendant who participated in building a bogus Web site containing, among other things, alluring pictures of his ex-girlfriend. In Johnson, the court held that the defendant committed aggravated harassment by responding to a personal ad in the victim’s name, causing the person placing the ad to contact the victim.

In this case, the court observed that even though Delgrosso could have simply denied the friend request, it was still a form of contact. It found that the form of communication was no different from the defendant having a third party say to Delgrosso, “Your former friend wants to communicate with you. Are you interested?”

It should also be noted that the court cited approvingly to Wikipedia for a description of MySpace and to Alexa for information about MySpace’s popularity.

Mark Fass of the New York Law Journal has more on this case here. The MyCrimeSpace blog has its take on the case here. Also found on MyCrimeSpace is this article from last year about a poor chap in the UK who was found to have violated a restraining order for friending his ex-wife on Facebook.