Ethics

Opinion warns against judges doing online research on facts related to cases

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The committee offers another hypothetical that involves researching facts about a litigant. In the scenario, a judge needs the litigation history of a party. So the judge searches the court’s computer files to identify the party’s pending and closed cases, as well as the facts of each case. The committee’s analysis begins by reciting the generally accepted rule that a judge may take judicial notice of a court’s paper and computerized files.

Indeed, many states have added provisions to their codes of judicial conduct that grant judges the authority to consider court files. For example, Rule 2.9(C) of the Montana Code of Judicial Conduct provides that a judge may consider online court records at bail and sentencing hearings. Opinion 478 cautions, however, that judges must (1) maintain technological competence to navigate computerized records; (2) exercise care to ensure that the judicially noticed records pertain to the same party currently before the judge; (3) not take judicial notice of sealed court records; and (4) advise the parties of the court’s intention to judicially notice court records.

A final scenario is offered to remind judges that they may not sidestep Rule 2.9(C) by assigning law clerks, interns or other nonjudicial court employees the task of performing the prohibited internet research. Rule 2.9(D) places a duty on judges to make reasonable efforts to ensure that employees under the judge’s supervision and control do not violate Rule 2.9(C).

AN IMPORTANT OPINION

With more than 3.5 billion Google searches every day, browsing the internet for “facts” has become routine. But internet searches cannot become routine for judicial officers. A judge’s role in an adversary system should be limited to considering facts produced by litigants and, generally, should not include judges producing and then considering their own facts. Moreover, whenever a judge independently notices a fact, that fact will necessarily help or hurt a party and therefore potentially create an appearance of judicial partiality.

Opinion 478 reminds judges and lawyers that judicial notice is a narrow doctrine, and that failure to follow the constrictions of the doctrine harms the adversary system and adversely impacts the appearance of judicial impartiality. Equally important, the opinion tells judges that before taking judicial notice of an adjudicatory fact, they must advise the parties of their intention and provide an opportunity for the parties to respond.


Raymond J. McKoski is a retired Illinois Circuit Court judge and the author of Judges in Street Clothes: Acting Ethically Off-the-Bench.

This article was published in the February 2018 ABA Journal magazine with the title “Reining in Jurist Investigations: Opinion warns against judges doing research on facts related to cases.”

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