Sunday, March 23, 2014
The Sixth Circuit Appellate Blog has an interesting piece on when it's acceptable for advocates and appellate judges to go beyond the appellate record to do internet research (or even live reenactments). I think that all such outside references present a problem, but the issues are different depending on whether the advocates or court is doing the extra-record research. When the parties make extra-record references, those references are subject to the adversarial process. As the Sixth Circuit Appellate Blog post notes, a motion to strike can be considered and pursued or waived depending on the importance of the content and egregiousness of the extra-record reference. When the court does its own research, whether that's internet research or live reenactments, the action is not subject to the adversarial process. A party's only recourse is to seek hearing en banc or Supreme Court cert, both exceedingly rare audiences to obtain.
As outside research becomes easier, particularly through the internet, the boundaries of such research should be carefully considered and enforced.