Tuesday, January 23, 2018

Sleuthing Addressed Again

I recently noted issues with the independent investigation by a judge in The Sleuthing Judge. I have also previously written about the prevalence of appellate decisions citing such dubious sources as Wikipedia. That has become somewhat common. There are even experts advising attorneys on how to reference Wikipedia in appellate briefs. 

The Texas Supreme Court blog refers to Wikipedia favorably as "the largest single compendium of human knowledge ever assembled." Wikipedia is also accepted as a definitive authority by the Florida First District Court of Appeal, see Truje-Perez v. Arry's Roofing. Despite the awe of Wikipedia's size, the fact remains it is a compendium of thoughts and conclusions (opinions, perhaps instead of facts?) of a great many individuals, submitting and editing on their own, largely without standards, verification, or professional oversight. It may be large, but its authoritative nature is open to debate, despite it being relied upon by judges. 

The American Bar Association, a voluntary organization in which some 410,000 lawyers, law students, and others are purportedly members (note that I am citing Wikipedia for that membership size), recently entered the debate of judicial sleuthing with May judges search the internet for facts? ABA ethics opinion sees problems

The ABA concludes that it is appropriate for judges to conduct legal research, exploring legal theories and precedent, which was "not cited by the parties." Similarly, the Florida First District Court has held that the trial judge has an obligation to perform independent legal research, even when the parties to the case make unsubstantiated arguments and provide no precedent or authority in support of their arguments. In the Court's view, it is the trial judge, not the parties, that has the obligation to research and homogenize the potential legal authorities that could potentially support either party's arguments. 

However, the ABA ethics opinion concluded that a court "finding adjudicative facts” about a "case online is generally prohibited by the ABA Model Code of Judicial Conduct." See ABA Formal Opinion 478. The opinion draws a distinction and expresses "an exception" for judges to do such fact-finding or sleuthing online regarding "facts that are subject to judicial notice" under an applicable evidentiary rule or code "because they are generally known and not subject to reasonable dispute."

That phraseology seems similar to Florida's Evidence Code and rules, Section 90.202(11), which says a "court may take judicial notice of the following matters":

(11) Facts that are not subject to dispute because they are generally known within the territorial jurisdiction of the court.

The ABA contends that "judges’ decisions must be based on evidence presented on the record or in open court." That conclusion is consistent with the legal concept of confrontation. Confrontation leads us to have evidence presented in an open hearing. Witness testimony can be subjected to the test of cross-examination, and a finder of fact can assess credibility and reach unbiased and impartial conclusions about what has happened, when, and where. As importantly, the "so what" questions can be addressed (what are the results, the damages that are needed to rectify the situation). It does not happen in back rooms or alleys, it happens in the sunshine, on the record, and everyone involved has the opportunity to speak to the issues and questions. 

The ABA contends that "judges should not combine the role of advocate, witness and judge," citing Model Rule 2.9(C) of the Model Code of Judicial Conduct. The Model Code, as the name suggests is a template or recommendation of this voluntary organization. Each state decides what its own Code of judicial Conduct will say, sometimes adopting the recommendations of the Model, and sometimes not. This was previously discussed in The Code of Judicial Conduct and Scouting.

The Model Code section 2.9(C) has not been adopted in Florida. It states:

A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.

That appears to be a fairly clear statement that would apply to any "judge," not just a trial judge. Perhaps that language is broad enough to preclude an appellate judge from investigating Wikipedia (or Wikipedia-like) information on the internet, information that has not been debated in an open hearing and subjected to the prohibitions and restrictions on evidence. This would suggest that appellate judges should stick to the evidence in the record. 

The Model provides hypothetical situations, as well as some broad guidelines. The ABA contends that if additional information is needed to decide a case, then it "must be provided by the parties or the lawyers, or must be subject to judicial notice." And that if anything case-specific is needed, to "corroborate facts, discredit facts, or fill a factual gap in the record," then "it is improper for the judge to do the research." If the judge is seeking "background" about the parties or the subject of the case, then that data gathering and consideration "must be subject to the adversary process." 

If these are not true, then one could perhaps validly question what the purpose is of trial. Lawyers and parties work hard to prepare and present their case for adjudication. They will make strategic decisions about what evidence to adduce, what questions to ask, and what sleeping dogs to leave sleeping. When the judge begins independently sleuthing, researching and questioning, s/he is overriding those strategic decisions, focusing the case upon what the judge feels is important rather than upon what the parties have decided to bring forward for adjudication.

The parties' decisions and choices should be respected. It may be that the nature and quantity of evidence the parties have chosen is not enough to prevail. That is lamentable. But, that decision was the party's choice. When the judge seeks to explore different or further evidence, the judge slips the confines of adjudicator and becomes instead an advocate (and as the decision-maker, a powerful advocate indeed). With that adoption of the advocate role, the impartial and unbiased adjudicator role is abandoned, in whole or in part. 

The ABA suggests a second narrow exception to the broad sleuthing prohibition. It suggests that the judge may appropriately look "for general or educational information needed for a better understanding of a subject." However, that need for information or knowledge must be "unrelated to a pending or impending case." In other words, there is nothing wrong with a judge expanding knowledge, learning, reading, and growing. But not in pursuit of determining a particular case. 

The Model Code seems to support my earlier discussion of the inappropriateness of judicial sleuthing. However, a particular state code may or may not adopt this specific Model Code provision (2.9(C)). Is the absence of that provision from a specific state Code, such as the Florida Code of Judicial Conduct, demonstrative of a belief that such sleuthing is permitted? Or, is the absence of this clear prohibition instead evidence that state officials believe existing Code provisions already suggest or dictate the same non-sleuthing outcome?

It seems important to remember the overarching statement of Canon 3 of The Florida Code:
A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently
And, Canon 2 of The Florida Code:
A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge's Activities
Similarly, Canon 1 of the Model Code states:
A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

Do these provisions direct one to the same conclusion of sleuthing that Section 2.9(C) of the Model Code? 

Is it possible to be a sleuthing judge, researching issues not raised or presented, and remain impartial? Are the suggestions of the Model Code of general assistance in this regard, or is the presence or absence of an adopted version of Model Rule 2.9(C) critical to the analysis? And, should the analysis be different for an appellate court than for a trial judge? Is it appropriate for appellate judges to unilaterally supplement the record (fill in missing information) with Wikipedia facts to substantiate its decision? If it is only appropriate when facts are not subject to dispute, then what benefit does Wikipedia provide anyway. If the fact is that well known, then why is it necessary to cite any source or authority?

The American judicial system must be respected. The people need to both understand what judges do and be comfortable in following their conclusions. That outcome is encouraged when judges stick to the role of adjudicator, when judges and courts let the parties try their case, and when dubious sources like Wikipedia are avoided. Academics and educators distrust it, and may even penalize a student for using it. And, despite that appellate courts proudly use it in support of their conclusions. 

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