Page 30 - Delaware Lawyer - Summer 2019

WINNING ESSAY | The Bruce M. Stargatt Legal Ethics Writing Competition Randall J. Teti
Should Judges Google Their Cases?
Clarifying the parameters of independent internet investigation under the Delaware Judges’ Code of Judicial Conduct
Our adversarial legal system requires that “judges’ decisions be based upon evidence presented on the record or in open court, and available to all parties.” 1 However, the potential for independent judicial investigation beyond the boundaries of properly admitted evidence continually increases with the devel- opment of search engines and electronic social media, providing the court with immediate access to an unprecedented amount of information that may or may not be accurate. Although the Delaware Judges’ Code of Judicial Conduct (DCJC) does not contain a direct prohibition of independent internet investiga- tion, the Delaware Supreme Court has noted that this “well- established principle is assiduously adhered to by members of the Delaware judiciary.”2 Indeed, Delaware’s procedural and decisional law reflects the time-honored principle that the Court must serve as a neutral and detached party, basing its decisions upon properly admitted facts as opposed to information that has not been tested by the adversarial process.3
Nevertheless, the DCJC are “rules of reason” 4 that are to be applied realistically 5 “so as not to impinge on the essential inde- pendence of judges in making judicial decisions.” 6 As one Dela- ware Court has noted, “to propose that a judge, when faced with an evidentiary issue, cannot leave the bench, explore and research the issue and then take the bench to make a ruling is frivolous.”7 How, then, may the Bench and Bar work towards defining a balance in the internet age between realistic, independent and informed judicial decision-making and the potentially unethical consideration of facts that have not been admitted into evidence? The answer lies in the American Bar Association (ABA) Model Code of Judicial Conduct, the interpretations set forth by the ABA’s Standing Committee on Ethics and Professional Respon- sibility, and the Delaware Rules of Evidence (D.R.E.).
DCJC Rule 2.9 regarding ex parte communications provides that “[a] judge, except as authorized by law, should neither initi- ate nor consider ex parte or other communications concerning a pending or impending proceeding.” 8 Although the DCJC is based upon the text of the Model Code, its rules have not been updated to reflect the most recent amendments to their Model Code counterparts.9 Among these recent amendments, Model Code Rule 2.9(C) now provides: “A judge shall not investigate facts in a matter independently, and shall consider only the evi- dence presented and any facts that may properly be judicially noticed.” 10 The corresponding comment to Model Code Rule 2.9(C) clarifies that the “prohibition against a judge investigat- ing the facts in a matter extends to information available in all mediums, including electronic.” 11 An analysis of Rule 2.9(C) shows that the ABA has not only provided “significant clari- fication of the independent investigation proscription in the
internet age,” 12 but has also expressly incorporated the law of ju- dicial notice into the Rule’s prohibition.13 In doing so, the Model Code allows for some measure of independent judicial research pursuant to a discernible procedural and evidentiary standard.
D.R.E. 201, which is substantially similar to its federal coun- terpart,14 may provide an appropriate standard for Delaware judges to consider facts derived from an independent investiga- tion. D.R.E. 201(b) permits judicial notice of adjudicative facts that are “not subject to reasonable dispute” because the facts are “(1) generally known within the trial court’s territorial jurisdic- tion; or (2) can be accurately and readily determine from sources whose accuracy cannot reasonably be questioned.” Moreover, D.R.E. 201(e) allows a party the opportunity to be heard re- garding the propriety of judicial notice and the nature of the fact to be noticed upon a timely request. The party making such a request is entitled to be heard, regardless of whether the court has already taken notice of the disputed fact.15 By incorporating the procedural and evidentiary standards of D.R.E. 201 into the text of the DCJC, our jurisdiction would take a significant step towards updating the DCJC to account for the immediate avail- ability of a vast amount of information directly from the bench.
Additionally, the ABA’s Standing Committee on Ethics and Professional Responsibility has issued guidelines and consider- ations regarding the investigation of information related to par- ticipants or facts in a court proceeding.16 These guidelines may serve as a helpful tool to assist Delaware’s judiciary in navigat- ing the ethical parameters of independent internet research. The Standing Committee provides the following considerations:
1. Is additional information necessary to decide the case? If so, this type of information generally must be provided by counsel or the parties, or must be subject to proper judicial notice.
2. Is the purpose of the judge’s inquiry to corroborate facts, discredit facts or fill a factual gap in the record? If the facts are adjudicative, it is improper for the judge to do so.
3. Is the judge seeking general or educational information that is useful to provide the judge with a better understanding of a subject unrelated to a pending or impending case? If so, the inquiry is appropriate. Judges may use the internet as they would other educational sources, like judicial seminars and books.
4. Is the judge seeking background information about a party or about the subject matter of a pending or impending case? If so, the information may represent adjudicative facts or legislative facts, depending on the circumstances. The key inquiry here is whether the information to be gathered is of factual consequence in determining the case. If it is, it must be subject to testing through the adversary process.17
28 DELAWARE LAWYER SUMMER 2019