Thursday, March 22, 2012
Ind. Courts - "CAUTION: Now Entering Grey Area: Indiana Judges’ Use of Internet Information"
That is the title to an article by Gary Price, Lewis & Kappes, and Ellen Winternheimer, 2011 summer associate at Lewis & Kappes, that appeared in the August 2011 issue of Litigation Commentary and Review. A few quotes:
In the past decade, many Indiana Appellate judges have indicated openness to the use of the Internet in the courtroom. However, Indiana’s stance on off-the-record use of the Internet is still developing. Initially, Indiana Appellate judges were cautious and sporadic in their use in opinions of off-the-record information from the Internet. In little over a decade, the use of off-the-record Internet references in opinions by Indiana appellate judges has gradually expanded. Certainly this expanded use of sua sponte Internet searches warrants scrutiny and careful development that is consistent with the existing rules of evidence and appellate practice. * * *The interesting, highly-researched article traces the evolution of Indiana Court of Appeals' citation of websites.
The Indiana Code of Judicial Conduct reminds judges that they should not look to evidence or other information outside the record. * * *
Judicial use of the Internet to gather off-the-record information can present a problematic situation in which the judge bypasses the requirements of expert witness admissibility and takes away a party’s right to know the substance and grounds for expert witness testimony in order to challenge it. Particular care should be taken to ensure that the court does not rely on an expert opinion that was not vetted by the trial court and admitted into evidence. Otherwise, when a judicial opinion is issued, questions inevitably arise for the litigant: Was the information simply extra information to confirm or explain the opinion? Was this information critical to the final decision? Is it worth an appeal if I do not know either way?
Interestingly, the article looks at two 2006 COA opinions citing Wikipedia, an issue that was touched on just this week by the COA in Hardin v. Hardin (although in Hardin the Court commented in a footnote on the citation of Wikipedia in a brief).
Posted by Marcia Oddi on March 22, 2012 09:56 AM
Posted to Indiana Courts