How Courts Use Wikipedia

I. 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. III. 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. A. 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. …