When is it Appropriate to Use the Internet?

In Rowe v. Gibson, 2015 No. 14-3316 (U.S.C.A.), the plaintiff, a prisoner, sued a prison and its staff in relation to medical treatment. The suit was dismissed, but reversed on appeal by the Seventh Circuit of the United States Court of Appeals.

The interesting point in the Court of Appeals’ decision was described by one of the justices as follows (at page 27):

…a disagreement about the outcome of this relatively simple case has morphed into a debate over the propriety of appellate courts supplementing the record with Internet research.

In a partly dissenting judgment, Justice Hamilton took umbrage at his colleagues’ use of the internet (at pages 39 and 40):

The ease of research on the internet has given new life to an old debate about the propriety of and limits to independent factual research by appellate courts.  The majority’s approach turns the court from a neutral decision-maker into an advocate for one side. The majority also offers no meaningful guidance as to how it expects other judges to carry out such factual research and what standards should apply when they do so. Under the majority’s approach, the factual record will never be truly closed. This invites endless expansion of the record and repetition in litigation as parties contend and decide that more and more information should have been considered.

Justice Posner, writing the majority judgment suggested that modern trial judges are not “like the English judges of yore” (at page 12):

In citing even highly reputable medical websites in support of our conclusion that summary judgment was premature we may be thought to be “going outside the record” in an improper sense. It may be said that judges should confine their role to choosing between the evidentiary presentations of the opposing parties, much like referees of athletic events. But judges and their law clerks often conduct research on cases, and it is not always research confined to pure issues of law, without disclosure to the parties. We are not like the English judges of yore, who under the rule of “orality” were not permitted to have law clerks or other staff, or libraries, or even to deliberate—at the end of the oral argument in an appeal the judges would state their views seriatim as to the proper outcome of the appeal.

Judge Richard A. Posner wrote the majority opinion, including an appendix responding to the dissent.

Circuit Judge Ilana Diamond Rovner issued a concurring opinion that begins, “A disagreement about the outcome of this relatively simple case has morphed into a debate over the propriety of appellate courts supplementing the record with Internet research.”  Circuit Judge David F. Hamilton issued an opinion concurring in part and dissenting in part. In dissenting, Judge Hamilton writes, “the reversal is unprecedented, clearly based on ‘evidence’ this appellate court has found by its own internet research.”

What is a bit fascinating about this appellate judge skirmish is that it is also going on in Canada, where a similar issue arose in R. v. C.D.H., 2015 ONCA 102.

In C.D.H. the accused was charged with a number of offences, including the offence of sexual assault. The trial judge entered an acquittal for sexual assault, but entered a conviction for the included offence of assault.

The Crown appealed from the acquittal, arguing that the trial judge had erred in conducting his own research on the website “Match.com” (the evidence at trial had been that the complainant and the respondent had met on Match.com and that during the alleged sexual assault encounter, the respondent had become angry and searched that website to see the complainant’s other contacts there).

On appeal, the Ontario Court of Appeal indicated “that the circumstances we have outlined gave rise to a reasonable apprehension of bias. The acquittals must be set aside and a new trial ordered.” The Court of Appeal held that the “conduct of the trial judge in conducting his own evidentiary research while the decision was under reserve – whether or not he had already written his reasons or he accessed any actual details about the complainant – and his comment to the officer about using the website information to ‘hang’ the complainant, created the appearance of bias.”

The Court of Appeal held that the trial judge’s conduct contravened the “basic principle that judges and jurors must make their judicial decisions based only on the evidence presented in court on the record.”

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