On Friday 15 February 2008, Stephen Bain wrote:
<shameless plug> I also blogged about a similar
subject last year
</shameless plug>:
To continue the shameless I just posted how often court citations are
misunderstood :).
[[
http://reagle.org/joseph/blog/culture/wikipedia/judicial-notice
2008 Feb 15 | Reference works and judicial notice
The import of the use of reference works in court cases is frequently
misunderstood, and in this case Wikipedia is no different. Wikipedia
has been used as a source across culture (e.g., in cartoons, on TV), by
governments -- for different reasons -- and a lot of attention is given
to examples of Wikipedia as a court source. Seemingly, if a court cites
a reference work it connotes authority and legitimacy upon the source.
However, the legal meaning is quite different: the principle of
judicial notice applies to information introduced into the court record
that is so commonplace that it cannot be refuted. It is not a case of
authoritative or expert evidence being recognized, as it is often
misunderstood to be, but closer to a recognition of popular notability.
Britannica was quite famous for its misleading and sentimental
advertisements in the 1950s and 60s including an exaggerated claim
about the courts, as Harvey Einbinder discusses:
The educational director of the Britannica supplied a good
illustration of these dubious claims when he asserted in an
advertisement in the Library Journal (November 1, 1954): "It is so
universally accepted as an authority that courts of law admits
ENCYCLOPAEDIA BRITANNICA as evidence."... However, it is an
elementary legal principle that judicial notice can only be taken of
scientific facts or matters that are generally or universally known,
and which therefore can be found and encyclopedias, dictionaries or
other reference works. These facts must be matters of common
knowledge -- and not questions where a difference of opinion exists.
Thus the scientific treatise is and encyclopedias may be consulted
by judges, but they are not evidence. One reason for this rule is
that they cannot be placed under oath and cross-examined. Another is
that citations in one book may be contradicted by other books
unknown to the court. (Einbinder 1964:314-315)
So, first, Wikipedia is not the first reference work to be used, or
misunderstood, in this way. Second, the interesting thing that is
happening here is the degree to which a reference work's selections are
an appropriate proxy for judicial notability, and a reliance upon
Wikipedia perhaps indicates a more up to date, but also much more
expansive, scope: print encyclopedias rarely ever exceeded a hundred
thousand articles, the English Wikipedia has millions.
]]