Jun 21, 2012

Extrinsic Research: Yes, Judges Do It Too

(cross posted at the Citizen Media Law Project)
Several posts on this blog have discussed the issue of jurors conducting "extrinstic" research by looking up facts online to supplement the evidence that is presented them in court. Courts nationwide are struggling to figure out how to deal with this, from posters in jury rooms to penalizing jurors for conducting such research.

What about "extrinstic" research by judges? This is when judges, in deciding a legal issue, conduct their own research (online or offline) and discover information not presented by the parties.

Such research presents the same dilemmas as research by jurors: such information is not subject to vetting by the adversary process that characterizes our legal system. Yet while such juror research is considered a grave problem, similar research by judges is largely overlooked.

A forthcoming article in the Virginia Law Review examines such "independent research" at the U.S. Supreme Court. And the author -- Allison Orr Larsen, Assistant Professor of Law at The College of William and Mary School of Law -- concludes that such research is more prevelant that usually thought. Examining Supreme Court decisions from 2000 through 2010, Larsen found that "56 percent of these cases contain at least one factual source discovered in house – meaning outside the record, not presented by the parties and even beyond the scope of the numerous amicus briefs filed." Larsen at 19.

Larsen found that justices cited such sources in both majority and dissenting opinions, Larsen at 20, and that such research is used to both support substantive legal rulings and also used rhetorically. Id. at 25. As for the sources themselves, she found them equally divided between "legal" and "non-legal" sources. Id. at 30.

Larsen goes on to discuss the problems with such independent judicial-fact finding, and the issues are similar to independent fact-finding by jurors: it is not subject to scrutiny by the attorneys on each side, and the advocates are not able to refute the information.

She goes on to suggest two, racially different solutions to this issue: either bar judges from doing their own research, or formalize such research by allowing judges to solicit information from the parties and from other interested parties and experts. "[B]oth," she writes, "are superior to the outdated procedural void that currently exists," where there are no common rules or practices regarding the question." Id. at 46.

One of Larsen's prescriptions may be right. The easy access to information that the internet and mobile computing provides to judges -- and jurors -- may require a re-thinking of the rules regarding evidence in trials.


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