There is an interesting case of judicial ethics out of North Carolina where District Court Judge B. Carlton Terry Jr. was given a public reprimand for becoming “friends” on Facebook with the attorney for the defendant, Charles A. Shieck, in a child custody disputes. Terry was also reprimanded for not just posting statements about the case but googling the plaintiff in the case (and referencing what he had found).
The reprimand by the North Carolina Judicial Standards Commission is clearly well-based in befriending a litigant’s lawyer and posting comments about the case. What is more interesting is the google search. Terry found the business website of the plaintiff and cited a poem found on the site. Terry insists that he believed the poem reflected favorably toward the plaintiff and gave him “hope for the kids.”
Many courts view the public record as subject to judicial notice. The confines of judicial notice have been left highly ambiguous. The federal rule FRE 201(b)) states:
(a) Scope of rule.–This rule governs only judicial notice of adjudicative facts.
(b) Kinds of facts.–A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
(c) When discretionary.–A court may take judicial notice, whether requested or not.
(d) When mandatory.–A court shall take judicial notice if requested by a party and supplied with the necessary information.
(e) Opportunity to be heard.–A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
(f) Time of taking notice.–Judicial notice may be taken at any stage of the proceeding.
(g) Instructing jury.–In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.
A judge is not allowed to conduct his own investigation and is supposed to allow the adversarial process produce the record for any trial or verdict. Does this ruling mean that a judge cannot go to a website of a company to confirm that it is an international conglomerate or locations of factories? Clearly, the best solution is to raise any deficit in evidence with the attorneys and ask for supplemental motions practice.
Terry disqualified himself from the case Oct. 14, 2008, and his order was vacated, beginning a new trial Oct. 22, 2008.
For the reprimand, click here.
For the full story, click here.