Social media websites such as Facebook and Twitter are now being used to serve court documents, by Lawyers to discover and use evidence against their opponents in court cases, and to research the background of jurors.
However, as revealed in a recent US case, inquisitive Judges have started to poke around on social networking sites like Facebook to check parties out on their Facebook profiles, including looking at their Facebook photos.
Judges in the US have apparently been conducting private internet searches of their own initiative in litigation for nearly a decade, making factual determinations about issues based on information they locate on a range of websites. This escalating trend has given rise to concern amongst US lawyers, particularly where Judges are not disclosing their internet searches to parties involved in litigation.
Judges’ internet searches of a variety of webpages to confirm their hunches about parties appearing before them in Court has been the subject of legal challenge by US Lawyers, who assert that in conducting such searches, Judges are descending into the judicial arena and and becoming “uninvited advocates” or giving testimony as a witness.
Parties appearing before US Courts now appear to be fair game for Judges inclined to start digging for information about them online. Ms Purvis, a Plaintiff in the case of Purvis v Commissioner of Social Sec., 2011 WL 741234 (D.N.J., Feb. 23, 2011, discovered this personally, when a Judge heard her application for a review of a decision to deny her entitlements to benefits for her disability, bronchial asthma.
Although the Judge wasn’t involved in deciding the ultimate issue of her entitlements to benefits, sending the decision back to the original decison maker, she made some scathing remarks about the Plaintiff’s credibility after looking her up on Facebook and finding a picture which she believed to be of Purvis smoking.
The Judge expressed her suspicions about the validity of the Plaintiff’s medical claim based on the discovery of the profile picture, remarking that if the picture was accurate, the Plaintiff’s credibility was suspect.
At law, a Judge is not supposed to decide a case by going beyond evidence placed on the court record. The Code of Conduct for US Judges is silent on internet searches by Judges, but the American Bar Association’s Model Code of Judicial Conduct adopted by New York, contains commentary in Canon 3 to the effect that ‘A Judge must not independently investigate facts in a case and must consider only the evidence presented’.
The American Bar Association’s Model Code of Judicial Conduct also states that “a Judge shall not independently investigate facts in a case“, which extends to information available in all mediums including electronic access.
A Judge is not permitted to consider ex parte communications when deciding a case. Lawyers seek to admit evidence obtained from the internet or elsewhere to a court must conform with strict rules of evidence relating to authentication and hearsay, including rules relating to forensic evidence.
There is however a doctrine called the plain sight doctrine which some argue opens up the possibility a Judge can start looking at internet communicaions.
Judges can take judicial notice of a fact as matters of common knowledge and facts capable of verification under Federal Rules of Evidence. One example of common knowledge which a Judge is entitled to take judicial notice of without proof would be that the sun rises everyday.
However, under Federal rules of evidence the common knowledge has to be “capable of accurate determination by resort to sources whose accuracy can’t reasonably be questioned“. There is a big question mark over whether the internet is an acceptable provider of such facts of indisputable accuracy.
Yet in two recent cases, the United States v Bari and Gucci America Inc v Guess? Inc, both courts sanctioned a Judge taking judicial notice of ‘facts‘ a judge found on the internet. One of the problems in the Bari case was that the Government argued that the Court was not, in any event, bound by Federal rules of evidence in bail revocation proceedings. It was argued that this fact called for the application of a relaxed evidentiary standard of the rules of evidence in these kinds of proceedings.
The Government also argued that the Judge in the lower court was merely taking judicial notice of the fact that not all rain hats are alike, and that he was merely confirming his suspicion of his common knowledge via the internet.
The Government argued that whilst twenty years ago the Judges hunches would have gone unconfirmed as he would have had to travel to a department store to confirm his intuition, he need now only take a brief visit to Google to confirm his suspicions.
The Court seemed to be bending over backwards to sanction the conducting of such private internet searches by Judges. At first the Court disagreed that the Internet search was actually even a search, characterising it as more in the nature of a statement on a matter on ‘common knowledge’.
The logic goes something like this. Common sense leads one to suppose that there is not only one type of yellow rain hat, and the District Court’s independent Internet search served only to confirm this common sense supposition
The Court held:
“”As the cost of confirming one’s intuition decreases, we would expect to see more judges doing just that. More generally, with so much information at our fingertips (almost literally), we all likely confirm hunches with a brief visit to our favorite search engine that in the not-so-distant past would have gone unconfirmed. We will not consider it reversible error when a judge, during the course of a revocation hearing where only a relaxed form of Rule 201 applies, states that he confirmed his intuition on a “matter[ ] of common knowledge.”
Therefore the court concluded it was not an error of law for a Judge to conduct an Internet search to confirm a reasonable intuition on a matter of common knowledge.
After the Bari case, the prediction is that the role of the internet will have an increasing impact on judicial notice. As younger generations of lawyers are appointed to the Judiciary, it is predictable that Judges will turn to the internet when they are considering questions of judicial notice.
But there is no clarity as to which internet sources will be perceived as accurate enough to support a judicially noticed fact. A survey of the last ten years of litigation in the US reveals that it is a matter upon which Judges have disagreed.
When one considers the likes of Facebook, MySpace and Twitter it becomes immediately apparent, due to a variety of practices engaged in by participants, that there are less than credible sources of information
From 2002 Judges in the US have been taking a visit to google to confirm their intuitions to resolve factual issues by citing web sources from a wide variety of sites.
For isntance, it is reported that a Judge searched the internet to controvert a Prosecutor’s assertion that a Defendant drug dealer’s reference to “eighteenth street” in the city was actually code for a demand for an $1800 debt. After the Prosecutor supported the assertion that there was no eighteenth street in the city, (accepted by the majority of Judges), a dissenting Judge searched internet map sources and located an Internet map provider called MapBlast, which listed an eighteenth street.
Judges have used Google to locate information on alcoholism to make decisions about whether a father in a custody dispute was an alcoholic, and relied on articles on a commercial pet website regarding the practise of the docking of dog’s tails. Given what is at stake for parties in litigation, can we assume that Google is a reliable enough source that it can verify facts before a court?
As stated above in the case of US v Bari No. 09-1074 (2d Cir March 22, 2010) appeal was mounted over a Judge’s undisclosed use of Google to confirm their suspicions about certain factual matters before him. The Judge made a finding on the identification of the defendant, which was in contention, as the offender in a robbery case which had relevance to his parole revocation. It was discovered that the Judge made a finding that the defendant was involved in the robbery based on a factual finding he arrived at after searching yellow rain hats across google images.
We can’t naively assume Judges won’t indulget their curiousity as to litigants just as the Federal Court Judge in the Purvis case did.
We have to trust that Judges are aware of and have a good understanding of the culture and practices which participants partake in in the rarified atmosphere of Twitter. These tactics include impersonation, constructing fake profiles and identities, posting false comments, engaging in rumour, innuendo and uploading photoshopped pictures.
Hopefully Judges will evaluate evidenced procured from the internet cautiously, in step with a contemporary understanding of the culture of Web 2.0.
Otherwise there is a danger that Judges may not recognise the unfamiliar terrain in which they find themselves on social media platforms in which it is easy to make unreliable assumptions are take things out of context.
At least where Judges are prepared to disclose their searches and how they have impacted upon their factual findings, (which hasn’t always occurred in the US), parties will be aware of and have the opportunity to contest or scrutinise the relevancy or accuracy of online materials a Judge has relied upon to determine a decisive factual issue in a matter.
Where Judges are starting to wander onto social networking sites, mischievous parties anticipating litigation may see an opportunity to pre-emptively post information online about their adversaries to portray them in an undesirable light if it means being able to hijack a case,
We have entered an era where judicial impressions of Facebook profiles appear to count.
With witnessed the role that social media played in the Dickileaks saga across a series of high profile controversies. The internet became saturated with hate speech, photoshopped pictures, trolls infesting the space and villifying a 17 year old teenage girl in ways which would have been difficult to have imagined.
Constable Luke Donaghue, who faced 14 charges before a Magistrate, had his case dismissed without any reasons being offered by the Magistrate. We are left to speculate as to what the reasons were for this, however what we do know is that viral emails were doing the rounds at the Department of Justice, the Police Service, legal and stockbroking firms and the Transport Accident Commission. It would be naive to believe that a Magistrate who even in their leisure time logged onto the internet would be completely quarantined from the massive number of scandalous images and offensive commentary that appeared on the internet.
Unless Judges in the US are unique we are left to assume that all judicial figures may have an inclination to check out Facebook profiles of us on the sly and form opinions of us. Let us be thankful that if we ever appear before a court that we aren’t that controversial that we run the risk of a Magistrate of looking at profile which is probably fake and drawing all kinds of inferences about us.