Wikipedia in the Courtroom

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Wikipedia in the Courtroom

Is Wikipedia a reference in the courtroom?

In “The Citation of Wikipedia in American Judicial Opinions” , LEE F. PEOPLES, from Oklahoma City University School of Law (LSN Law & Society: The Legal Profession Vol. 3 No. 30, 10/14/2008) says that Wikipedia has been cited almost 300 times in American judicial opinions as of September, 2008. Courts cite Wikipedia for a wide range of purposes. Some citations are merely mundane references to everyday facts well known by the general public. In other opinions Wikipedia is cited as a basis for the court’s reasoning or to support a conclusion about an adjudicative fact at issue in the case. In a notable recent case, Badasa, v. Mukasey, 2008 WL 3981817 (8th. Cir. 2008), The Eighth Circuit remanded a Board of Immigration Appeals decision because it upheld a lower court’s finding based on information obtained from Wikipedia.

The article examined citations to Wikipedia in American judicial opinions. The impact of references to Wikipedia in judicial opinions on law of evidence, judicial ethics, the judicial role in the common law adversarial system, the de-legalization of American law, and the future of stare decisis will be explored. Best practices for the citation of Wikis in judicial opinions will be discussed.

In the article “Bergen judge reversed for allowing Wikipedia entry as evidence” (by Jerry DeMarco), published in the North Jersey Crime Examiner, a Bergen County judge mistakenly let a collection company lawyer cover a gap in evidence against a credit-card holder by using a Wikipedia page, a state appeals court has ruled. “Such a malleable source of information is inherently unreliable and clearly not one whose accuracy cannot reasonably be questioned,” they added.

Citation Value

Most judges probably would never cite to a Wikipedia article in a court document, and they would not even reference Wikipedia to a Lawyer who provided them with a research assignment at work. But some judges may use Wikipedia for initially learning about background material, at least the references at the bottom of each article.

One of the classic argument against Wikipedia was held by the United States Court of Claims in Campbell ex rel. Campbell v. Secretary of Health and Human Services, 69 Fed. Cl. 775 (2006).

“A review of the Wikipedia website reveals a pervasive and, for our purposes, disturbing series of disclaimers, among them, that: (i) any given Wikipedia article “may be, at any given moment, in a bad state: for example it could be in the middle of a large edit or it could have been recently vandalized;” (ii) Wikipedia articles are “also subject to remarkable oversights and omissions;” (iii) “Wikipedia articles (or series of related articles) are liable to be incomplete in ways that would be less usual in a more tightly controlled reference work;” (iv) “[a]nother problem with a lot of content on Wikipedia is that many contributors do not cite their sources, something that makes it hard for the reader to judge the credibility of what is written;” and (v) “many articles commence their lives as partisan drafts” and may be “caught up in a heavily unbalanced viewpoint.” at 781-782.”

Note: Britannica and other references’ disclaimer seems to disclaim even more than Wikipedia’s does.

RAGHAV SHARMA, from the National Law University, Jodhpur, in a short article titled “Wikipedian Justice” ,
highlights the increasing reliance by Indian courts on Wikipedia. The Supreme Court seems to have accepted Wikipedia as a reliable source of information. The article discusses how far such judicial reliance is warranted on Wikipedia.

Wikipedia has been cited in numerous court opinions, but several decisions have expressed concern about this trend. See, e.g., United States v. Lawson.

Citing Wikipedia and other Consensus Websites may be appropriate, according to the article “Wikipedia in Court: When and How Citing Wikipedia and Other Consensus Websites is Appropriate” (by HANNAH B. MURRAY, in SSRN).

JASON C. MILLER, Government of the United States of America – United States Court of Appeals for the Sixth Circuit
Practitioners and courts are relying more and more on Wikipedia, a free online encyclopedia that anyone can edit. Hundreds of court opinions, including at least one from every federal circuit court, and thousands of law review articles cite Wikipedia. Some opinions have relied on Wikipedia for technical information, although others only turned to the consensus website for background information on minor points.

This practice has generated controversy, with newspapers, professors, practitioners, and judges weighing in. Wikipedia in Court examines the controversy and the history of Wikipedia in court opinions before proposing a framework to determine when it is appropriate and inappropriate to rely on Wikipedia for authority in legal writing. Given the inconsistency in the legal community’s use of Wikipedia, courts and practitioners will benefit from this framework.

Reliable or Unreliable?

Wikipedia has been mentioned in several judgments. In its paper “The Citation of Wikipedia in American Judicial Opinions”, Lee F. Peples (Oklahoma City University School of Law) wrote that before September 2008 Wikipedia had been cited almost 300 times in American cases.

“Some citations are merely mundane references to everyday facts well known by the general public. In other opinions, Wikipedia is cited as a basis for the court’s reasoning or to support a conclusion about an adjudicative fact at issue in the case. In a notable recent case, Badasa v. Mukasey, 2008 WL 3981817 (8th Cir. 2008), The Eighth Circuit remanded a Board of Immigration Appeals decision because it upheld a lower court’s finding based on information obtained from Wikipedia.”

But the Courts usually find Wikipedia as unreliable. For example, in State v. Flores, a decision by the Texas Court of Appeals for the 14th District (October 23, 2008), the court refused to take judicial notice of a Wikipedia article about the “John Reid interrogation technique.” The court described in footnote 3 that Wikipedia articles are inherently unreliable because they are often edited anonymously. The court opinion was that the democratic approach of Wikipedia is “its greatest strength and its greatest weakness.”

Another example is Zoltek Corp. v. U.S., 85 Fed. Cl. 409 (2009). In this case, when a party submitted a Wikipedia article as evidence of a fact (a fact of life, not of law), the Court said (get ready for it) “…the reliability and probative value of such an exhibit is extraordinarily low…”at 414 (FN 6).

Citation of Wikipedia

In the United States, according to a search by the Wall Street Journal Law Blog, Federal appeals courts have cited Wikipedia about 95 times in the last five years. In the Chicago-based 7th U.S. Circuit Court of Appeals, for example, judges referred to Wikipedia entries on the movie Blazing Saddles and on an ailment known as an anal fissure. The San Francisco-based 9th U.S. Circuit Court of Appeals, on the other hand, relied on a Wikipedia summary about Elvis Presley.

The Law Blog tallied the number of Wikipedia cites by federal appeals courts since 2007, when a New York Times article noted court references to the open-access encyclopedia. The Times article noted that federal appeals courts had cited Wikipedia only 13 times in the prior three years.

The Law Blog found that the Chicago-based 7th U.S. Circuit Court of Appeals cited Wikipedia 36 times, more than any other federal appeals court. Next was the San Francisco-based 9th U.S. Circuit Court of Appeals, which cited Wikipedia 17 times.

Wikipedia is not like a Dictionary

In U.S. v Gilbert (U.S. Fourth Circuit Court of Appeals), the court had concerns on the reliability of a Wikipedia definition. In this case (April 2012), a juror made unauthorized use of Wikipedia to educate himself on the elements of the crime.

The court stated that the existence of outside information (including online research of legal issues) that was not part of the court record carried a rebuttable presumption of prejudice for the defendant.

The use of dictionaries has been held non-prejudicial, once the presumption was rebutted.

Patents: not longer a source of information

Until August 2006, examiners at the U.S. Patent & Trademark Office (PTO) had used Wikipedia’s articles as background (and not as the basis for deciding on an applicationt) to help determine a patent application’s validity. According to the U.S. Patents Commisioner, John Doll: “The problem with Wikipedia is that it’s constantly changing.”

Other Sources

The Sixth Circuit cited Urban Dictionary in 2007, and the Nevada Supreme Court did so in 2009. Twitter is also cited as a source in some cases.

See Also

  • 50 most visited country pages in Wikipedia in may 2012
  • 100 Top country pages in Wikipedia in may 2012
  • Top law pages in Wikipedia in may 2012 by importance
  • Most referenced articles in Wikipedia about broad legal issues
  • Wikipedia and copyrights
  • U.S. Digests
  • 250 Top law pages in Wikipedia in may 2012

Further Reading

Lee Peoples, “The Citation of Wikipedia in American Judicial Opinions.” (SSRN). This paper examines citations to Wikipedia in American cases, and explore the impact of references to Wikipedia in judicial opinions on law of evidence, judicial ethics, the judicial role in the common law adversarial system, the de-legalization of American law, and the future of stare decisis.

Cases

Here is what the Court of Federal Claims had to say about the subject in Campbell ex rel. Campbell v. Sec’y of Health & Human Services, 02-554 V, 2006 WL 445928 (Fed. Cl. Feb. 14, 2006): A review of the Wikipedia website reveals a pervasive and, for our purposes, disturbing series of disclaimers, among them, that: (i) any given Wikipedia article “may be, at any given moment, in a bad state: for example it could be in the middle of a large edit or it could have been recently vandalized;” (ii) Wikipedia articles are “also subject to remarkable oversights and omissions;” (iii) “Wikipedia articles (or series of related articles) are liable to be incomplete in ways that would be less usual in a more tightly controlled reference work;” (iv) “[a]nother problem with a lot of content on Wikipedia is that many contributors do not cite their sources, something that makes it hard for the reader to judge the credibility of what is written;” and (v) “many articles commence their lives as partisan drafts” and may be “caught up in a heavily unbalanced viewpoint.”

You can also look at Bing Shun Li v. Holder, 400 Fed. App’x 854 (5th Cir. 2010) andCrispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010) to get other courts’ similar views on citing to Wikipedia.
Despite the fact that many courts view this practice negatively, it is still frequently done. According to Courting Wikipedia, 44-APR JTLATRIAL 62, from 2005 to 2008, there were over 100 published opinions that cited to Wikipedia. There is also a whole host of law review articles that have been written about how to use Wikipedia for research and how it can be a useful tool, many of which can be found using the search I described above. So, maybe the tide is slowly changing when it comes to Wikipedia in the courtroom.

Research Tool

The article “Embracing Wikipedia as a research tool for law: to Wikipedia or not to Wikipedia?” (Eola Barnett & Roslyn Baer, The Law Teacher Journal, 2011, Volume 45, Pages 194-213) said “Useful aspects of Wikipedia should be embraced as a research tool. Arguments are based upon a consideration of Wikipedia’s purpose; policies and controlling mechanisms; commentator views on and academic use of Wikipedia as a teaching and learning tool; the fact that empirical research has found students will use Wikipedia. The results of a survey on the research preferences of a range of students engaged in various levels of legal study, from senior secondary school to second year law students, are presented and recommendations regarding educating students in the appropriate use of Wikipedia for research are made.”

The article describes an anonymous survey among 101 Australian students (30 senior secondary high school students enrolled in legal studies, and 71 law degree students in their first and second year at the University of Southern Queensland) about their use and perceptions of Wikipedia.[7] Their results indicate “that the majority (78%) of all students surveyed are currently using Wikipedia for some form of legal (30%) or other research (37%) or as a source of general information (11%).” One of the 101 students admitted to have vandalized Wikipedia articles, while two said they corrected errors in Wikipedia. The use of Wikipedia for legal research among the first-year university students was much lower than among the high-school students, which the authors conjecture is “a result of legal research skills training and warnings against its use, and perhaps even a result of cultural adaptation. Seventy-eight percent of the first year law students surveyed acknowledged that Wikipedia can be unreliable and/or inaccurate.” However, Wikipedia usage for legal or other research increased again for the second year university students, which the authors surmise could have to do with the students becoming “a little more streetwise within the university context and [finding] the convenience of Wikipedia appealing.”

Apart from the poll results, the paper contains a small literature survey about “Wikipedia as a teaching and learning resource”, observing that “the use of wikis in legal education is in its infancy. Several of the case studies in the literature reported positive outcomes,” and qualitative results from an “informal preliminary investigation into academic perceptions of Wikipedia as a research source in law” (“All the academics consulted considered Wikipedia an unreliable source for legal information … Some acknowledged a role for Wikipedia as a source for legal or incidental background information” with qualifications about accuracy and reliability). Still, “the authors argue that using Wikipedia as a tertiary source for assimilating broad overview information, for both legal and incidental research, to define and identify keywords for further research, and as a link to other resources, is acceptable when the issues surrounding the discerning use of any secondary source, peer reviewed or not, are fully understood”, and that “Academics can and should contribute to Wikipedia either directly, through the contribution of research, or indirectly, through the mentoring of student contributions which can be incorporated into course content and assessments.” Among other conclusions, the authors suggest “encouraging universities to develop policies consistent with academic contribution to Wikipedia”.

Notes

References and Further Reading

About the Author/s and Reviewer/s

Author: international

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