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The Fourth Circuit Sends A Cockfighting Case Back For Retrial Because of Wikipedia

Imagine you were going to a professional meeting. Maybe it’s a weeklong off-site skills training for work. Maybe it’s an odd kind of a conference in your hometown. You’ll be at some strange new location during the day, then go home at night.

1254520_teamwork__1.jpgAt the start of the exercise, people seem interested in you. They ask you a lot about yourself. But then, at some point, you’re given a seat and told to just sit, watch, and learn.

Next, the woman who is leading the training reads to you from a list of instructions that she had prepared in advance. You are not allowed to ask questions. Your fellow participants aren’t allowed to talk about the instructions.

Some stuff happens – a few people talk to you and they ask questions of other people who answer them. Maybe you read some documents.

After that stuff is done, the person who read to you at the start of the training reads to you again to tell you how to figure out what the people were talking to you about. She gives you a list of instructions, and tells you to go talk to the other participants, but you have to follow the rules she gave you.

Also, she may or may not give you a copy of those rules.

This is, in many ways, the experience of a juror in a federal criminal trial. Jurors are given instructions – which they are presumed to follow closely – only once, and often only orally.

In United States v. Lawson, decided recently by the Fourth Circuit, one of the jurors was eager to understand the elements of the crime he was supposed to figure out if someone was guilty of.

845381_my_fighting_cock_crows.jpgThe government alleged that a number of people, including Scott Lawson, were on trial for violating the animal fighting prohibition of the Animal Welfare Act, 7 U.S.C. § 2156(a). The defendants in this case were accused of cockfighting (or, rather, getting game fowl to fight – the defendants themselves weren’t actually fighting. That would have probably not been a federal crime).

The Animal Welfare Act prohibits “sponsoring” a cockfight.

One of the jurors, named Jury 177, after listening to the evidence, was curious. He wasn’t sure that he knew what “sponsoring” means.

He did what most folks these days do when they don’t know the meaning of a word. He went to Wikipedia and looked up “sponsoring.” The jury then found the folks accused of sponsoring cockfights guilty.

Six days after the jury returned the guilty verdict, one of the jurors told a court security officer than Juror 177 had been Googling for justice.

The district court appointed a lawyer for Juror 177, and had a hearing about what happened.

Even though Juror 177 was looking at a criminal contempt charge – and, indeed, was found guilty of contempt and sentenced to a fine and community service – Juror 177 testified that he had searched on the internet to learn what “sponsoring” means and shared what he found with his fellow jurors.

What Juror 177 didn’t realize, apparently, is that he was told by the district court judge that he wasn’t allowed to consult the internet as a part of his deliberations. The problem this doesn’t raise for the Fourth Circuit is that the way we instruct jurors is sort of bizarre as a kind of human interaction, and jurors don’t listen to jury instructions. [FN1]

No, instead the Fourth Circuit was troubled by the presence of Wikipedia.

Even though Googling to find the meaning of a word is incredibly common – even Judge Posner does it – the Fourth Circuit held that using Wikipedia was just too unreliable to allow this verdict to stand. [FN2]

As the Fourth Circuit said,

Given the open-access nature of Wikipedia, the danger in relying on a Wikipedia entry is obvious and real. As the “About Wikipedia” material aptly observes, “[a]llowing anyone to edit Wikipedia means that it is more easily vandalized or susceptible to unchecked information.” Id. Further, Wikipedia aptly recognizes that it “is written largely by amateurs.”Id.

We observe that we are not the first federal court to be troubled by Wikipedia’s lack of reliability. See Bing Shun Li v. Holder, 400 F. App’x 854, 857-58 (5th Cir. 2010) (expressing “disapproval of the [immigration judge’s] reliance on Wikipedia and [warning] against any improper reliance on it or similarly unreliable internet sources in the future”); Badasa v. Mukasey, 540 F.3d 909, 910-11 (8th Cir. 2008) (criticizing immigration judge’s use of Wikipedia and observing that an entry “could be in the middle of a large edit or it could have been recently vandalized”); Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 977 (C.D. Cal. 2010) (criticizing parties’ reliance on Wikipedia); Kole v. Astrue, No. CV 08- 0411, 2010 WL 1338092, at *7 n.3 (D. Idaho Mar. 31, 2010) (admonishing counsel from using Wikipedia as an authority, observing that “Wikipedia is not a reliable source at this level of discourse”); Baldanzi v. WFC Holdings Corp., No. 07-CV-9551, 2010 WL 125999, at *3 n.1 (S.D.N.Y. Jan. 13, 2010) (observing that Wikipedia “touts its own unreliability”); Campbell ex rel. Campbell v. Secretary of Health and Human Servs., 69 Fed. Cl. 775, 781 (Fed. Cl. 2006) (observing dangers inherent in relying on Wikipedia entry).

The case was remanded for a new trial.

So, to summarize: John McCain can use Wikipedia for his speeches. Judge Posner can use Google for his opinions. Jurors cannot use Wikipedia instead of following the jury instructions.

[FN1] – Juror 177 was found in contempt because the court’s directions went specifically to him; they weren’t of general applicability like in this case. Though this raises a question – how can failing to follow a jury instruction subject someone to contempt? Can a jury be held in contempt en mass when they nullify? Should the trial jury be held in contempt every time the court of appeals reverses for insufficient evidence when the jury convicted? Juror 177 was, presumably, trying in good faith to resolve a Doesn’t this seem a little crazy?

[FN2] – To be fair, there is a multi-part test that the court of appeals applied – the unreliability of Wikipedia only went to one part. Though the rest of it is pretty dry.

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