Concept

Online and Electronic Research

Deciding on the record: no independent investigation of facts

Online and Electronic Research

Rule 2.9(C) forbids a judge to investigate facts independently and confines the judge to the evidence presented and the facts that may properly be judicially noticed.¹ The rule names no tool and no place, and the accompanying comment makes that silence deliberate: the prohibition "extends to information available in all mediums, including electronic."² A judge who types a query into a search engine therefore stands where a judge stands who drives out to inspect a disputed property. In both cases the judge has gathered a fact that the parties never saw, cannot test, and have no chance to answer. The medium neither creates a violation nor excuses one.

The rule exists because an investigation that runs outside the adversarial process can lead the judge to rely on one-sided sources, to the detriment of her impartiality.³ The Internet sharpens that danger by making outside research effortless. A question that once required a trip to the scene now requires a few seconds at a keyboard, and a judge who sees an uneven contest may be tempted to hunt facts and right wrongs from the bench. That temptation operates at the expense of the procedural safeguards that evidentiary and ethical rules preserve.⁴

The medium cuts the other way as well. A judge may consider facts that are properly subject to judicial notice,⁵ and confirming such a fact on a screen is no more an investigation than confirming it in a printed almanac. Whether a judge may use a fact still depends on two questions: whether it came in as evidence presented, and whether it is properly noticeable. The device in the judge's hand never enters the analysis.

Rowe shows the temptation at work. The majority drew factual information from Internet sources, and the majority and the dissent both recognized that the information was not so generally known or readily determined as to be subject to judicial notice. Had Rule 2.9 applied, the investigation would seem problematic.⁶ Judge Posner, for his part, was loath to "fetishize adversary procedure in a pure eighteenth-century form," particularly where, as there, the adversaries lacked parity.⁷

Rowe has to be read for what it is. Rule 2.9 did not govern the court, so the case decides nothing about whether independent online research is ethical. Judge Posner's reluctance reflects a competing view of the judge's role when the contest is uneven, and it is not authority that online research complies with the rule. The case earns its place here because of the point on which both sides agreed: the material was not judicially noticeable.⁸ For exam purposes the lesson is simple. When the information is a disputed fact and cannot be judicially noticed, the judge may not find it personally, whatever the medium, the reputation of the source, or the sympathy of the cause.

An exam question built on this material usually hides the rule in an ordinary courtroom scene, and the way to read it is to ask who put the electronic material in front of the judge.

Hypothetical Illustration

In a bench trial over a traffic collision, the plaintiff's lawyer hands up a printout of a mapping-service satellite image of the intersection and offers it as an exhibit. The defense may object, the judge overrules the objection, and the image is received. When the judge later uses it to decide whether a witness at the corner could have seen the crash, the judge is weighing evidence presented.

In a second collision trial, the judge doubts that a witness could have seen the crash from where she says she stood. During the afternoon recess he opens a mapping service and studies satellite images of the intersection, which neither side offered. No one has seen the images, and no one can object to them or answer them. The judge has investigated independently. It makes no difference that the images came from a screen rather than from the street, or that they may be perfectly accurate.

Exam Analysis Steps

Because the medium never decides the outcome, an electronic-research problem is best run by tracing where the information came from and what kind of fact it is. The steps are these:

Identify the specific fact the judge relied on, and determine whether it reached the judge through an exhibit, testimony, or stipulation or through the judge's own search.
If a party offered it and the other side had the chance to object and respond, treat it as evidence presented and find no investigation problem.
If the judge found it personally, ask whether it is generally known or readily determined, so that it may properly be judicially noticed.
If the fact is open to reasonable dispute, conclude that the judge investigated independently, however reputable the website and however sympathetic the aim.

The third step usually decides the answer. An online lookup of a calendar date passes it, because no one could reasonably dispute the result. A website on a contested technical or medical question does not pass, because that is exactly the kind of question the parties are there to contest.

Online and Electronic Research

Endnotes9