Independent Judicial Investigations

The Minnesota Code of Judicial Conduct is clear and unambiguous:

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.

Comment 3 states:

The proscription against communications concerning a proceeding includes communications with lawyers, law teachers, and other persons who are not participants in the proceeding, except to the limited extent permitted by this Rule.

Comment 6 states:

The prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic.

On March 21, 2025 the Minnesota Board on Judicial Standards adopted Formal Advisory Opinion 2025-1 🔗, addressing judicial disqualification and independent investigation. This opinion reiterates that:

• “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.” (Minn. Code Jud. Conduct R. 2.9(C)).
• “[A] judge’s obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed.” (Rule 2.11 cmt. 2).
• The “extrajudicial-source doctrine … applies to knowledge the judge properly learns from court proceedings, not to knowledge the judge improperly learns from their own investigation into factual matters before the court.” (citing State v. Dorsey, 701 N.W.2d 238 (Minn. 2005)).

In State v. Duol, released on September 3, 2025, the Minnesota Supreme Court stated: “A district court judge’s deliberate independent investigation and consideration of extra-record facts … violates the petitioner’s constitutional right to an impartial judge. Such a violation is a structural error requiring automatic reversal under the Due Process Clause of the Minnesota Constitution.” The Supreme Court also stated: “We have recognized a “bright-line rule that judges may not engage in independent investigations of facts in evidence . . . .” Id. at 251; see also Lopez, 988 N.W.2d at 119 (reaffirming this principle). When a district court judge does so, they no longer act as a fair and impartial judge. We have never recognized an exception to this guardrail.“

Federal Reversal for Independent Judicial Investigation

In In re John A. Schrag (D. Or. 2011), the United States District Court reversed a bankruptcy court decision after the judge conducted an “independent investigation” outside the evidentiary record. Rather than relying on evidence presented by the parties, the judge contacted court staff, reviewed internal system logs, and relied on those findings to resolve a disputed factual issue.

The district court held that this conduct impermissibly introduced evidence into the proceeding, violated core principles of the adversarial system, and constituted clear error. Courts, the opinion emphasized, are not investigative bodies and may not supplement the record with facts obtained through their own inquiries. Reversal was required because the parties were denied the opportunity to test or challenge the evidence relied upon by the court.

“The prohibition on independent judicial investigation is one that has been, and must be, scrupulously followed.” — In re Schrag (D. Or. 2011)

1. In State v. Hill, the judge’s actions were not deemed to constitute an independent judicial investigation because there was no proof that the judge engaged in an independent investigation. However, the video evidence reviewed by the judge had not been introduced into evidence by either party when the judge viewed it.

2. In State v. Fields, the judge’s actions were not deemed to constitute an independent judicial investigation because the judge reviewed evidence that had already been presented by the parties, which consisted of an audio recording of an earlier proceeding before the same judge, in the same case. Justice-Denied agrees that the judge’s actions in this case do not constitute an independent judicial investigation.

3. State v. Jones was deemed an exception to the “bright-line rule” forbidding independent judicial investigation and the use of extra-record facts because the judge was required by law (Finnegan) to investigate the reason for the defendant’s absence from trial. The MN Supreme Court has granted a Petition for Review in this case.

4. In Stevenson v. Stevenson, no contemporaneous objection was made because the judge introduced his extra-record facts after taking the matter under advisement. However, a sworn declaration contradicting many of these facts was filed by Plaintiff Craig Stevenson eight days after the hearing. The contradictory facts in this declaration were ignored, and the judge relied on his own extra-record facts in his order.

5. In Stevenson v. Stevenson, the issue of independent judicial investigation was deemed forfeited by the MN Court of Appeals, despite having no opportunity to object during the hearing and the filing of a sworn declaration eight days after the hearing. According to Justice-Denied’s research using the Minnesota Law Library, this is the only time in appellate court history where the core issue of independent judicial investigation has been forfeited.

6. Stevenson v. Stevenson was viewed as an exception to the “bright-line rule” forbidding independent judicial investigation and the use of extra-record facts. “And how do those facts get into the record if they’re relevant to the decision on, you know, a motion that someone has brought?” Judge Tracy M. Smith, during oral argument.

7. State v. Knopik was deemed an exception to the “bright-line rule” forbidding independent judicial investigation and the use of extra-record facts because the judge shared the substance of an inadvertently received, unsolicited “chat” communication and allowed responses from the parties, which did not constitute an independent investigation.

8. The opinion in State v. Scudder specifically stated that the defendant “did not object or respond” to the judge’s independent investigation or the results. However, the lack of a contemporaneous objection or response did not prevent the Court of Appeals from reaching the merits of the independent judicial investigation issue.

9. Although raised for the first time during oral argument, and not briefed, this issue was not dismissed as forfeited, and was deemed an exception to the “bright-line rule” forbidding independent judicial investigation and the use of extra-record facts because Mr. Leonida requested that the district court judge investigate this information. However, a review of the oral argument reveals that this request was made to a different judge during a different hearing.

10. In State v. Foote, the MN Court of Appeals rejected the State’s argument that a structural error argument could be forfeited.

11. In State v. Blanshan, the MN Court of Appeals reversed and remanded for a new trial even though the district court inadvertently relied on evidence that was not introduced during trial.

TMS – Judge Tracy M. Smith served on this panel.