How courts use Wikipedia.

• Author: Gerken, Joseph L.

1. INTRODUCTION

   The research for the present article began innocently enough when a law student approached the reference desk and asked, "Can I cite Wikipedia in my moot court brief?" This author replied, confidently and authoritatively, "Of course not. Anybody can edit Wikipedia." Then, in an exercise of caution, the author did a search in the ALLSTATES and ALLFEDS databases of Westlaw. (1) To his surprise, he retrieved almost 200 opinions in which courts referred to Wikipedia. Since that reference encounter several years ago, the number of cases citing Wikipedia has doubled. (2)

   The sheer number of cases suggests that it is simply incorrect to say categorically that courts should not cite Wikipedia. Clearly, courts are finding Wikipedia to be an appropriate source in at least some contexts. However, the potential pitfalls of using Wikipedia are evident to anyone who has encountered erroneous or misleading information in a Wikipedia entry. The question then becomes whether there are times when the benefits of using Wikipedia can outweigh the risks of doing so.

   Much has already been written about Wikipedia, including at least one excellent article regarding courts use of the source. (3) But this author sought to focus on a particular aspect of the question: How use of Wikipedia comports with traditional methodology employed by courts for determining relevant facts. The research was straightforward. The author read and summarized every case that cited Wikipedia. Particular attention was paid to why each court cited Wikipedia and how the Wikipedia-supported information functions in the context of its decision.

   This review of cases citing Wikipedia shows that courts use information gleaned from that source in a variety of ways. The corresponding analysis focused on whether the use of Wikipedia might be categorized as innocuous or problematic. In particular, a court's use of Wikipedia to document a fact tangential to the case or related to its background was deemed innocuous, while use of Wikipedia was deemed problematic when it effectively became the deciding factor in the court's consideration of material factual issues in the case.

   Typically, there is no discussion in these opinions of the propriety of using Wikipedia. The court simply declares a fact and cites Wikipedia as its source. However, in a steadily growing number of cases, the court addresses the question of whether it is proper to cite Wikipedia. Indeed, in one decision a lower court's citation of Wikipedia was declared to be reversible error. In consequence, this article also includes a discussion of the cases that explicitly address the propriety of citing Wikipedia. Finally, this article proposes a set of considerations to guide future courts in deciding whether to cite Wikipedia in particular contexts.

3. INNOCUOUS USE OF WIKIPEDIA

   In many cases, the court's use of Wikipedia is unobjectionable. Indeed, there are times when a Wikipedia entry arguably enhances a court decision. The following segments discuss two such instances, namely (1) cases in which the Wikipedia citation supports a quip or a bit of trivia; and (2) cases in which Wikipedia serves to fill a gap in the evidentiary record.

   1. Quips

      Wikipedia has occasionally been used by judges to make a rhetorical point, or simply as support for a quip. Thus, in a case in which adequacy of notice was at issue, a dissenting justice questioned the majority's conclusion by observing that, "[a]s Sherlock Holmes might have said to Dr. Watson, 'It is elementary, my dear fellow,' that no meaningful public forum is provided citizens without meaningful notice," and cited the Wikipedia entry for Sherlock Holmes. (4) And in a case involving an alleged securities scam, the court, in its recitation of facts, noted that "[a]pparently ... P.T. Barnum was right when he quipped 'There's a sucker born every minute!', because the Defendants in a very short amount of time raised over $32 million from 31 investors." (5) The court then appended the following historical note, drawn from Wikipedia:

      The phrase, "there's a sucker born every minute" is most often credited to circus entrepreneur, P.T. Barnum. However, his biographer could never verify that he made that remark and many of Barnum's friends and contemporaries said it would have been unlike him to make such a proclamation. (6) One court used Wikipedia to support a sarcastic comment directed to the conduct of the lawyers before it, complaining that the plaintiffs repeatedly failed to provide pinpoint citations to documents in the 2500-page record, and then "put the length of the record in perspective" by quoting Wikipedia as authority for the fact that "Leo Tolstoy's War and Peace is 'typically over 1400 pages as a paperback.'" (7) Similarly, a court will occasionally use Wikipedia when inserting an interesting bit of trivia into an otherwise mundane opinion. Consider, for example, the reference to Wikipedia in Watson v. State, (8) which explains that "[t]he card game faro 'enjoyed great popularity during the ... 19th Century in the United States ... where it was practiced by "Faro dealers" such as the infamous Doc Holliday.'" (9) Along the same line is Judge Posner's noting in an opinion that the defendant "is a former trainer of the Polish boxer Andrew Golota--the world's most colorful boxer." (10)

      The Wikipedia entry cited in each of these decisions has absolutely no bearing on the core issues in the case. Wikipedia is utilized to inject humor or an interesting bit of trivia into an otherwise prosaic discussion. Given that no material facts are implicated, this use of Wikipedia seems quite innocuous. Indeed, inveterate readers of court decisions no doubt would welcome more instances of Wikipedia-supported humor.

   2. Gap Fillers

      Courts have occasionally resorted to Wikipedia to fill gaps in the record attributable to the procedural posture of the case.

      1. Using Wikipedia to Enhance Understanding of the Record in Pro Se Civil Rights Cases

         Because many pro se complaints are drafted by prison inmates who do not have a high school--much less a law school--education, they are seldom models of pleading. Even when such a complaint survives the court's sua sponte review and is later subject to a motion to dismiss, the court is often left with a spotty record. Hence the need to fill gaps in the factual narrative. Courts have turned to Wikipedia to provide information that might have been supplied by the parties in a case with a more complete, professionally prepared record.

         1. Medical Terms

            In reciting the facts underlying an Eighth Amendment claim in Crespo v. Laws-Smith, (11) for example, the court noted that the defendant "repeatedly contract[ed] MRSA," (12) and in a footnote citing Wikipedia, court explained that

            Methicillin-resistant Staphylococcus aureus (MRSA) is a specific strain of the Staphylococcus aureus bacterium that has developed antibiotic resistance to all penicillins, including methicillin and other ... antibiotics. (13) And in reciting the history of the pro se plaintiff's post-surgical care in Merinar v. Grannis, (14) the court noted that a neurological exam had disclosed "positive Tinel s sign on both wrists" (15) and went on to explain:

            According to the internet encyclopedia, Wikipedia,

            Tinel's sign is a way to detect irritated nerves. It is performed by lightly banging (percussing) over the nerve to elicit a sensation of tingling or "pins and needles" in the distribution of the nerve. (16) This explanation helps the reader understand the neurologist's diagnosis and recommendations, and thus the court's finding that Merinar should be permitted to proceed with his claim. One can appreciate that the court would not be inclined to call for an evidentiary hearing simply to confirm a commonly accepted definition of a medical term.

            We can perhaps conclude that when confronted with a pro se complaint, the court's turning to Wikipedia to define an essential medical term in the complaint seems reasonable, particularly when the definition is not subject to dispute.

         2. Religious Practices

            Pro se complaints asserting First Amendment freedom of religion claims do not always include detailed information regarding relevant religious rites or traditions. Courts reviewing such complaints have, for example, noted that "Jumu'ah" is "a congregational salat (prayer) that Muslims hold every Friday, just after noon"; (17) that "Wudu" is "the act of washing parts of the body using clean water, performed by Muslims as part of the preparation for ritual worship"; (18) and that a "Kufi" is "a short rounded cap, traditionally worn by persons of African descent to show pride in their heritage and [M]uslim religion." (19)

      2. Using Wikipedia to Enhance Understanding of Police Investigations in Suppression Hearings

         Wikipedia has also been used as a gap filler in suppression hearings that review police investigations. Such investigations are often triggered by radio dispatches or other terse messages containing only basic information whose function is to alert officers to an imminent situation. When a suppression hearing is held to review the police investigation, the participants--attorneys, judge, police witnesses--are understandably focused on details that go to the dispositive issue, including whether police had probable cause to conduct a search. And of course they all use and understand the same jargon. It is only when a judge determines that the opinion deciding such a case merits publication that the description of otherwise tangential facts may require additional explanation.

         At the suppression hearing in U.S. v. Riley (20) the officers testified that they had responded to a "radio dispatch [that] indicated that a reckless driver in a red Monte Carlo was ... doing donuts." (21) In a footnote, citing Wikipedia, the court noted in its opinion that

         a doughnut or a donut is a maneuver performed while driving a vehicle. Performing this maneuver entails rotating the...