Justice Sotomayor’s perusal of a litigant’s website has received some attention. Of greater concern should be trial judges who gather case or party-related facts from extrajudicial sources.
For example, a federal judge, presiding over a case in which a zoo was accused of mistreating animals, researched anonymous online reviews of the zoo. In denying the zoo’s recusal motion, the judge held that “[t]here is no prohibition against a federal judge’s access to the Internet to obtain background information regarding the subject of a case before the Court.”
Remarkably, the judge created an “internet background research” exception to the general rule prohibiting a judge’s independent factual research in a case. To be sure, the judge did not condone obtaining background information from non-internet sources. He certainly would not consider securing background information by interviewing friends or surveying visitors as they left the zoo. The judge confined the “background research” exception to information gleaned from the Internet.
Why should a judge’s search for background information be limited to the internet? Certainly, anonymous internet reviews are less reliable than information obtained through other investigatory methods. Internet research, however, has two undeniable benefits over “boots on the ground” research–anonymity and not having to leave one’s easy chair.
Two strategies might help reduce the misuse of the internet by federal judges
First, the U.S. Judicial Conference should amend the judicial code for lower court federal judges to bar independent fact research. Most state judicial codes include such a prohibition. For some unexplained reason, the federal judicial code does not.
Second, the real danger created by independent research is that it allows judges to rely on information without giving the parties an opportunity to contest the relevancy or accuracy of the information. Requiring a judge who intends to gather case or party-specific information to notify the litigants and allow them to object to the judge’s plan, will minimize this danger. If no party objects or the judge overrules an objection, then the parties should be given another opportunity to challenge the information uncovered by the judge on relevancy and accuracy grounds. So, the judge hearing the case alleging the zoo’s mistreatment of animals would notify the parties that he intends to research online reviews of the zoo for “background information.” The parties could object or agree. If the judge reviews online critiques, the parties would be privy to the posts considered by the judge and permitted to contest the posts’ relevancy and accuracy and, if appropriate, present evidence concerning the partisan interests of the authors of the comments.
Federal Rule of Evidence 201(e), governing judicial notice, sets forth this procedure. But the procedure should apply whenever a judge seeks extrajudicial information whether the purpose is judicial notice, “background information,” or some other rationale for sidestepping the adversary process.