Wikipedia in the Courtroom in Europe

Is Wikipedia a reference in the courtroom?

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controlled reference work;” (iv) “[a]nother problem with a lot of content on Wikipedia is that many contributors do not cite their sources, something that makes it hard for the reader to judge the credibility of what is written;” and (v) “many articles commence their lives as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.

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.