Independent 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.“

1. Deemed forfeited by the Minnesota Court of Appeals, despite having no opportunity to object during the hearing and the filing of a sworn declaration eight days after the hearing.

2. Exception to “bright-line rule” forbidding judicial independent 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.

3. Opinion specifically stated that defendant “did not object or respond” to the judge’s independent investigation or the results.