1. John

    I think Cole is right. Does that count as ex parte communication? My own understanding is that judges are supposed to decide solely on the record. Perhaps that doesn't apply here b/c of the remand.

  2. Sam

    Plain sight doctrine now to a large degree applies to internet communications… The judge may claim it's just like going to e-baum's world and clicking on idiotic stuff.

  3. SQFreak

    Did the Commissioner/DOJ present the Facebook picture as evidence, or did the judge find it on his/her own? I would think that the judge taking notice of this would be unethical ex parte "communications."

  4. well, for the person in question and for all users of social networks, the lesson is to guard their privacy. As for the justice system, why not use every means they can?

  5. I am not a US Attorney and not even a Practising Lawyer so forgive my ignorance if I misunderstand. I think it is an ex parte communication. US v Bari does say a Judge can do internet research, but is the internet always accurate and even if it is, which sites are going to be relied upon to support judicially noticed facts. Judges have disagreed over that. To allow judges to confirm their suspicions/suppositions/intuitions on matters of common knowledge seems like a perversion of the doctrine of notice just because its more practical and convenient. Judges might be tempted to confirm their hunches (on litigants' credibility where reviewing the legality of an administrative decision as in Purvis or in bail revocation proceedings) I think there was even some precedent suggesting Judges might be able to extend it beyond these cases.

  6. It is counter to the adversarial system, as its up to parties to make the forensic judgement as to what evidence to lead and oppose for their clients, not Judges. A Canadian Judge acted like a private investigator for a defendant insurance company in trying to sneakily get a plaintiff to cede her password (the key to her house) to him so he could snoop around and look at anything. I hope that was a one off

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