The Core Prohibition

No Independent Fact Investigation

The Core Prohibition

A judge may decide the facts of a case from two places only: the evidence the parties present and facts that may properly be judicially noticed. Rule 2.9(C) of the Model Code of Judicial Conduct packs both limits into one sentence: "[a] judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed."¹ The first half bars the judge from gathering facts alone. The second half names the only inputs left. Judicial notice, the second input, reaches only facts that are generally known or readily determined; the next section takes up its limits.²

The prohibition targets ex parte investigation, meaning information a judge obtains independently of the parties about a pending or impending case.³ In an adversarial system the parties find the proof, offer it, and argue about what it shows, and the judge decides whether that showing is enough. A judge who goes hunting for proof takes over the litigants' job and stops being a neutral decisionmaker.

Investigation that runs outside the adversarial process can lead the judge to rely on one-sided sources of information, to the detriment of her impartiality.⁴ Evidence a party offers is open to the other side, which can object, cross-examine, and rebut. Information the judge gathers alone passes through none of those checks, and a party cannot answer what it does not know the judge saw. The prohibition therefore attaches to the judge's own fact-gathering, not to any particular kind of fact.

The commentary uses Rowe to show how tempting such investigation can be. The majority there drew factual information from Internet sources, and both the majority and the dissent recognized that the information was not so generally known or readily determined as to be judicially noticeable. Had Rule 2.9 applied, the investigation would seem problematic. Rowe illustrates the temptation the Internet creates for judges to hunt facts and right wrongs at the expense of the procedural safeguards of the adversarial process.⁵

One question controls most exam problems on this rule: how did the fact reach the judge? If the parties put it before the court, or it is properly noticed, the judge may use it. If the judge went and got it, the judge may not.

The same line separates a judge who gathers facts privately from one who invites the parties to supply them.

The rule looks to the source of the information, not to its accuracy or the judge's motive. The weekend visitor may have read the fence line exactly right, and the family friend may have described the parent honestly, yet each judge has violated the rule. Accuracy is the very thing the adversarial process exists to test, and an offstage fact has never faced that test. A sincere wish to get the case right does not help either, because the judge who investigates still relies on information no party could contest. The rule asks one thing: did the judge limit the decision to the evidence presented and properly noticed facts?