Yesterday, I was working on a jury instruction, a portion of it read:
“You must decide the facts based on the evidence admitted in this trial. Do not do any research on your own or as a group. Do not use dictionaries, the Internet, or other reference materials. Do not investigate the case or conduct any experiments. Do not contact anyone to assist you, such as a family accountant, doctor, or lawyer. Do not visit or view the scene of any event involved in this case. If you happen to pass by the scene, do not stop or investigate. All jurors must see or hear the same evidence at the same time. You must not let bias, sympathy, prejudice, or public opinion influence your decision”
–the same standard expected of Judges.
A Hard Call
But do Judges and Jurors follow this age-old tenet of the adversarial legal system in reaching decisions? What factors, besides the evidence presented at trial, influence Judges’ decisions? Their upbringing? Religious Beliefs? Political ideology? Why did the late U.S. Supreme Court Justice Antonin Scalia vote against gay marriage, predictably, and Sonia Sotomayor in its favor, naturally?
The scholarly analysis of judging has historically revolved around this central question: How much of judicial decision-making depends on legal reasoning? Do Judges, after finding the relevant facts of the case, consult legal rules and then arrive at their decision? What if instead of using legal rules to decide their cases, Judges rather use those rules to justify their decisions and not to arrive at them? What if instead of using only statutory legal rules, Judges often rely on policy principles not found in law books?
And a question peculiar to twenty-first century: What if Judges reach decisions based on evidence they found on the internet?
As instituted, the adversarial legal system expects a Judge, in ruling on a case, to ignore everything he knows and rule solely on evidence presented before it. So, for example, a Judge whose wife’s Ph.D research two years prior found with 99% certainty that talcum powder does not cause ovarian cancer, is expected to ignore his wife’s doctoral thesis (which he’d have heard tens of times over dinner) when sitting on a case between Johnson & Johnson and women alleging talcum powder caused them cancer. Except the defense does its home work, the Judge may be impelled to give judgment to Plaintiffs, contrary to his belief, and possibly, the truth.
But can a Judge, in fact, will himself to ignore the truth he knows and give evidence against it? Consider another part of the jury instructions:
“The attorneys’ questions are not evidence. Only the witnesses’ answers are evidence. You should not think that something is true just because an attorney’s question suggested that it was true.
Each side had the right to object to evidence offered by the other side. If I sustained an objection to a question, you must ignore the question. If the witness did not answer, you must not guess what he or she might have said or why I sustained the objection. If the witness already answered, you must ignore the answer.”
By the letters in bold, the Judge is in fact telling the jury to “unhear” an answer given to a question an objection to which he sustained. Can a jury really disregard such evidence if they found it compelling?
Here’s a scenario: In a trial in which a man is facing trial for murder for stabbing the deceased to death with a knife, the defense counsel has information that the Prosecution’s “eye witness” was not in fact at the scene of the incidence at the exact moment the incident allegedly occurred. During a cross-examination the Defense counsel asks the Prosection Witness:
Counsel: “So where were you at 4:40pm on Sunday, June 28, 2015?” The time the incident occurred.
Witness: “I was in my car outside the deceased’s house”
Counsel: “Where in the deceased’s house did the incident take place?”
Witness: “In his living room.”
Counsel: “At 4:40pm on Sunday, June 28, 2015, when you were in your car, could you see the victim’s living room?”
Counsel: “You know the alleged incident took place at 4:40pm on June 28, 2015?”
Counsel: “Please answer “yes” or “No” to the next question. If you were in your car at 4:40pm on June 28, 2015 and the victim’s living room was not visible to you, it is safe to say that you did not witness the incident which allegedly took place in the victim’s living room?”
Witness: “I will say I witnessed the incident because…”
Counsel: “Answer Yes or No!”
Witness: “While sitting in the car, I saw the accused run out from the victim’s house with a bloodied knife.”
Counsel: “Objection, Your Honour! Strike the answer, the answer is not responsive to the question.”
Court: “Objection sustained. Court Reporter, strike the answer. Jury disregard the last testimony from the witness.”
Meanwhile the damage had been done.
Not Every Relevant Evidence is Admissible
Before a court can admit an evidence, it must not only be relevant; it must also be admissible. So an evidence may be relevant but nonetheless inadmissible. Consider the so-called fruit of the poisonous tree in criminal cases. Fruit of the poisonous tree is a legal metaphor in the United States used to describe evidence that is obtained illegally.The logic of the terminology is that if the source (the “tree”) of the evidence or evidence itself is tainted, then anything gained (the “fruit”) from it is tainted as well. Such evidence is not generally admissible in court. So if, for example, police enters a suspect’s home without a search warrant and finds a murder weapon, except the circumstances under which the police entered the house fall under certain exceptions, as compelling an evidence as the murder weapon is, the court will not admit the evidence when the suspect stands trial.
In theory, in the adversarial legal system, however relevant an evidence a Judge found outside the judicial process is, he must ignore the evidence and make a decision based on the evidence and argument presented before him in court. A Judge should never descend into the arena. This rule is necessary to ensure the impartiality of Judges. It also helps appellate courts who must hear appeals based only on arguments made in the lower court.
Going the Extra Mile
While the law has since been laid down that Judges must rely on evidence presented in court, and not on their own investigations, the prevalence of internet makes it hard to draw the line. Can a Judge, for example, google a medical terminology to better understand a medical malpractice case? If the basis of the action is that the doctor did not promptly respond to a “Code Blue” call, can a Judge sitting on the case research on the meaning of the term and the average respond time to determine if the particular doctor is liable?
Without doubt, evidence got off google can sometimes give Judges a better picture than the evidence presented at trial. Here’s an example from a case I came across sometime ago. A man was sued by his Homeowners Association for dues. The man thought his house didn’t have a lot in common with the other homeowners to warrant their insistence that he paid dues for the maintenance of the neighborhood. A Declarations of Covenants, Conditions and Restrictions (CC&R). CC&R’s usually provide for how much dues the homeowners in the association will pay, what they can or cannot keep on their front lawns, etc. The goal of the CC&R in the case, which the homeowner argued he wasn’t bound to comply with, was to maintain the general aesthetics of the neighborhood which translates into good value for the homes.
For that case, after I’d heard the facts, I used Google earth to look at the neighborhood virtually. Viewing the neighborhood, I could see how a Judge’s opinion, if he viewed the neighborhood virtually like I did, could depend on the images captured by Google: If the neighborhood looked well maintained and had common walls, a Judge would be more inclined to rule that the homeowner pays his dues so that others don’t get discouraged and leave the neighborhood to go to ruins. If on the other hand Google Earth shows the neighborhood to be a slum in an inner city, a Judge could care less about the residential subdivision seeing there is nothing left to preserve.
The possibility that an extraneous evidence may sway a Judge is the reason judges are discouraged from investigating cases on their own. That is, a Judge t check the Facebook page of a Plaintiff in a sexual harassment case to see if she partied a lot and had it coming.
However, some Judges give in to the temptation. While researching for this post, I saw this comment left by someone who had read on a post on the subject: “There’s an Administrative Law Judge in my area who does driver license appeals. i.e., people are attempting to get their driver licenses back after a drunk driving conviction. Anyway, at the hearing on the record this Judge looks up the appellant’s Facebook and MySpace accounts. He’ll find pictures of them drinking, hanging out with people drinking, and make comments about how they were so shit faced drunk last Saturday.”
A Lawyer’s Duty
A lawyer has a duty to represent his client competently. Social media has become a way of life. So a lawyer has an obligation to research and make online investigations, both of his client and opposing party. Just as a lawyer advises his client to cover up tattoos, wear shirt and tie and maintain a decent appearance in court, he should also advise his client to not leave incriminating evidence on Facebook and have a ready explanation for ones not within his power to control. If a Judge gives a decision based on what the Judge found on Google, this may also be a ground for a lawyer to appeal a decision that is adverse to his client’s interest.
Not only do lawyers have to worry about an opposing counsel stumbling upon adverse evidence on social media, lawyers should consider that the ultimate arbiter may well believe that Judges do make laws– even if with the help of Google.
P.S: So what’s your opinion? Should Judges be allowed to google evidence?
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