Judges and the Internet - Fact Finding

By John DiMotto

In several posts, I have discussed the issue of jurors and the internet and how "juror misconduct" involving the use of internet information during a trial will negatively impact the integrity of their verdict. Today, I would like to address the potential problems that can arise if judges seek information via the internet to assist them in their fact finding capacity.

Regardless of whether it is a jury trial where the jurors decide the facts of the case or a court trial where the judge decides the facts, judges make factual findings in all types of proceedings. For example, as a condition precedent to the introduction of expert testimony judges have to decide whether the proposed expert has sufficient qualifications. depending on the circumstances of the case, it may be tempting for a judge to do a google search on the proposed expert to see what information is available on the internet. However, a judge may not do so without notifying the lawyers of his/her intention to access internet information. The reason is that this is extraneous information not in the record.

For a judge to obtain internet information without giving the lawyers a chance to respond to may result in a legal ruling which has a dramatic effect on the trial. If the information is erroneous or faulty it negatively impacts the integrity of the proceedings. We tell jurors not to do any independent investigation of the facts. This same principle holds true for judges.

One of the most important decisions that a juror and a judge must make during a trial is a determination as to the credibility of witnesses. If a witness is not worthy of belief, the weight to be given that witness's testimony will be reduced or even non existent. When judges are fact finders they want to make the right decision regarding how to decide the credibility of each witness. A judge may want to do a CCAP (a court record search) search of an individual to see if he/she has had other cases and the outcome of those cases. For example, in a domestic violence injunction case,a judge may want to put the names of the petitioner and the respondent into CCAP to obtain a "history" of court action between the parties. If a judge were to discover that the petitioner has brought five or six previous cases which were all dismissed that could have a huge impact on how the judge might view the credibility or lack thereof the the petitioner. While it might be helpful information it is inadmissible absent notification of the judge's intention and assent by the parties to the judge doing the search.

Judges are like jurors. They want to do the right thing. They want as much information as possible in order to accomplish that goal. However, judges have the same constraints as jurors when it comes to seeking information outside the record. It should not be done.