When Judges Go Off-Record

When Judges Go Off-Record

Minnesota law is clear: judges decide cases on the record the parties create, not on facts they find themselves or “selected facts” they prefer. For years, the Minnesota Court of Appeals has treated a judge’s independent investigation or reliance on extra-record facts as structural error—the sort of defect that automatically requires reversal because it compromises the basic right to an impartial decision-maker. Below is a partial summary of recent Minnesota Court of Appeals decisions addressing independent investigation, extra-record facts, or “selected facts.” Per our convention, judges who also served on the July 28, 2025 Stevenson v. Stevenson appeal panel are bolded and highlighted in yellow.

Case Summaries (chronological):

⚖️ State v. Weidenbach, A16-1166 (May 1, 2017)

• • Panel: Johnson (Presiding Judge), Schellhas, Bjorkman.
  • Conduct at issue: At sentencing, the judge conducted an independent investigation by accessing the co-defendant’s file (including the PSI and a DHS Functional Behavioral Assessment) and relied on those extra-record materials to label Weidenbach the principal actor and deny relief.
  • Objection/forfeiture: Defense flagged the concern on the record; the Court of Appeals held this violated Judicial Conduct Rule 2.9(C) and undermined impartiality, reversing without any prejudice analysis (consistent with Dorsey/Schlienz).
  • Result: Reversed and remanded for resentencing.

⚖️ In re Welfare of A.J.G., A18-1854 (July 8, 2019)

• • Panel: Schellhas (Presiding Judge), Jesson, Tracy M. Smith.
  • Conduct at issue: Judge independently checked the juvenile’s probation history—facts not introduced by the parties—and confronted him with it after closing arguments.
  • Objection/forfeiture: Treated as structural error; no prejudice analysis, and lack of objection did not bar relief.
  • Result: Reversed and remanded for a new trial.

⚖️ State v. Leckner, A19-1007 (June 15, 2020)

• • Panel: Tracy M. Smith (Presiding Judge), Johnson, Cochran.
  • Conduct at issue: Judge continued sentencing to conduct an independent, case-specific investigation—visiting Stillwater prison and then relying on what he personally “saw” to deny a dispositional departure.
  • Objection/forfeiture: Treated under Dorsey’s bright-line rule; independent fact-gathering by the judge at sentencing deprived appellant of an impartial decision-maker.
  • Result: Reversed and remanded for resentencing before a different judge.

⚖️ State v. Leonida, A20-1059 (August 30, 2021)

• • Panel: Larkin (Presiding Judge), Hooten, Tracy M. Smith
  • Conduct at issue: At sentencing, the district court judge independently reviewed another county’s criminal file—including the complaint and presentence investigation from a pending Dakota County case—and relied on that off-record review when denying a downward durational departure.
  • Objection/forfeiture: Although the court reaffirmed Dorsey’s bright-line rule prohibiting independent judicial fact-gathering, it emphasized that the defendant had earlier suggested reliance on the other PSI and did not object when the judge disclosed reviewing the separate file.
  • Result: Affirmed. The Court of Appeals characterized the circumstances as “unique” and held that a reasonable observer would not question the judge’s impartiality despite acknowledged reliance on extra-record information.

⚖️ State v. McCorquodale, A21-0047 (November 22, 2021)

• • Panel: Jennifer L. Frisch (Presiding Judge), Johnson, Bryan.
  • Conduct at issue: Judge relied on personal knowledge—referencing people “well known to the court”—to corroborate guilt, i.e., extra-record facts.
  • Objection/forfeiture: Treated as structural error warranting new trial even without a trial objection.
  • Result: Reversed and remanded for a new trial.

⚖️ State v. Scudder, A21-1081 (May 16, 2022)

• • Panel: Johnson (Presiding Judge), Cochran, Rodenberg.
  • Conduct at issue: Judge performed a Google search on jewelry prices and announced the results in court at a restitution hearing—outside the record.
  • Objection/forfeiture: Court treated it as structural error; did not require an objection or apply plain-error balancing. (Opinion specifically stated that defendant “did not object or respond” to the judge’s independent investigation or the results.)
  • Result: Reversed and remanded for a new restitution hearing.

⚖️ Progressive Insurance v. Abel, A21-1267 (June 13, 2022)

• • Panel: Randall J. Slieter (Presiding Judge), Bratvold, Klaphake.
  • Conduct at issue: On summary judgment, the district court relied on selected facts—ignoring favorable evidence, drawing inferences against the non-movant, and rejecting an explanatory affidavit—contrary to Skarsten’s admonition that a court must not rely on “selected facts” to justify a conclusion.
  • Objection/forfeiture: Addressed as legal error in the summary-judgment framework (view the record in the light most favorable to the non-movant).
  • Result: Affirmed in part, reversed in part, and remanded.

⚖️ State v. Knopik, A22-0766 (Jan. 17, 2023)

• • Panel: Tracy M. Smith (Presiding Judge), Worke, Wheelock.
  • Conduct at issue: During a video sentencing hearing, the judge received an unsolicited “chat,” immediately disclosed it on the record (Rule 2.9(B)), invited responses, asked the PSI agent present at the hearing for clarifications, and relied on the defendant’s own admissions—not on facts found outside the record.
  • Objection/forfeiture: No contemporaneous objection, yet the court reached the merits and held this was not an improper independent investigation under Rule 2.9(C).
  • Result: Affirmed (no structural-error violation because there was no extra-record fact-finding by the judge).

⚖️ State v. Bowlby, A25-0086 (June 30, 2025)

• • Panel: Reyes (Presiding Judge), Cochran, Schmidt.
  • Conduct at issue: District court reframed issues and relied on proximity/route “findings” about the airport and Johnson’s Portside that were outside the record; court also noted impartiality concerns.
  • Objection/forfeiture: Addressed on appeal; analyzed as legal error with impartiality concerns.
  • Result: Reversed and remanded.
  • Additional note: Opinion issued 28 days before Stevenson.

⚖️ State v. Oxendine, A24-1402 (July 14, 2025)

• • Panel: Schmidt (Presiding Judge), Bond, John Smith.
  • Conduct at issue: Judge who had issued the DANCO later relied on extra-record knowledge from that earlier case to find knowledge/violation—creating “emergent bias.”
  • Objection/forfeiture: Treated as structural error due to emergent bias.
  • Result: Affirmed in part; reversed in part; remanded for a new trial on the affected count(s).
  • Additional note: Opinion issued 14 days before Stevenson.

⚖️ Stevenson v. Stevenson, A25-0186 (July 28, 2025)

• • Panel: Randall J. Slieter (Presiding Judge), Jennifer L. Frisch (Chief Judge), Tracy M. Smith.
  • Conduct at issue: Otter Tail County District Court Judge Kevin Miller performed an independent investigation about his law clerk’s employment timeline, recited extra-record facts from his investigation at the very end of the disqualification hearing, relied on those extra-record facts in his order, while ignoring appellants’ contrary record submissions.
  • Objection/forfeiture: Panel did not treat the conduct as structural error; found no appearance of impropriety and declined to disqualify. Panel also ruled that, contrary to Scudder, because appellants did not contemporaneously object, the independent investigation issue was forfeited.
  • Result: Affirmed; motion denied.
  • Additional note: Although the issue was briefed and specifically raised during oral argument, the panel did not analyze Skarsten v. Dairyland or the “selected facts” doctrine in the opinion (no discussion of Skarsten appears).
  • Why Knopik matters here: Judge Tracy M. Smith (Presiding Judge in Knopik and panel member in Stevenson) has already explained in Knopik what isn’t an independent investigation (disclosure + in-hearing clarification + party admissions). Stevenson did the opposite: it treated a judge’s off-record fact-finding as forfeited and “unique,” instead of analyzing it as the 2.9(C) problem Minnesota law condemns.

What the Pattern Shows

A consistent rule—structural error.
Across a long line of cases—Weidenbach, A.J.G., Leckner, McCorquodale, Bowlby, Scudder, and Oxendine—the Minnesota Court of Appeals has treated judicial fact-finding outside the adversarial record as structural error. In those cases, reversal followed automatically: no prejudice analysis, no harmless-error balancing, and no requirement that a party object contemporaneously.

Knopik’s clarification, not a retreat.
Knopik did not weaken that rule. It clarified that when a judge discloses an unsolicited communication on the record, allows both parties to respond, and relies on party admissions, the conduct does not amount to an independent investigation under Rule 2.9(C). By contrast, Stevenson involved a judge locating, reciting, and relying on extra-record facts—conduct squarely within what Rule 2.9(C) forbids.

Contextual exceptions emerge.
In State v. Leonida, the Court of Appeals acknowledged the same bright-line prohibition on independent judicial fact-finding but nonetheless affirmed, emphasizing implied consent, lack of objection, and overlap with presentence materials. Leonida thus foreshadowed the contextual rationales that later reappeared in Stevenson: the rule is recited, but enforcement turns on how the surrounding circumstances are framed.

A separate—but related—summary-judgment doctrine.
The independent-investigation rule and the summary-judgment “selected facts” rule arise from different doctrines—one rooted in due process and structural error, the other in proper record development under Skarsten. But both serve the same core function: preventing judges from exceeding the adversarial record. In Abel, the court reaffirmed Skarsten’s command that judges may not prop up conclusions by selectively citing favorable facts while ignoring contrary evidence at summary judgment.

Stevenson as an outlier.
Despite mirroring the core defect present in the structural-error cases—a judge injecting extra-record facts through independent investigation—the Stevenson panel declined to apply the structural-error framework and did not engage with Skarsten, even though both issues were squarely raised. This departure creates a sharp doctrinal tension with the court’s own recent decisions.

The inconsistency is not abstract.
Every member of the Stevenson v. Stevenson panel has, in other cases, enforced the very safeguards they declined to apply here. Judge Tracy M. Smith joined reversals in A.J.G. and Leckner when judges went off-record. Judge Frisch presided over McCorquodale, reversing after a judge corroborated guilt using personal, extra-record knowledge. And Judge Slieter, as Presiding Judge in Abel, enforced Skarsten’s prohibition on selected facts—yet did not apply the same principle in Stevenson’s June 16, 2023 summary-judgment appeal (A23-1209), despite disputed material facts and selective fact reliance.

What this leaves behind is not doctrinal uncertainty, but doctrinal inconsistency—where the governing rules remain unchanged, yet their application depends less on the nature of the judicial error than on how an appellate panel chooses to characterize the context in which it occurred.

Why This Matters

Courts command trust only when they stay in their lane: parties create the factual record; judges decide the case from that record. The moment a judge substitutes personal research, private knowledge, or preferred “selected facts” for the adversarial record, the proceeding is no longer the fair tribunal the Constitution guarantees. Minnesota’s appellate courts have recognized this again and again—reversing as structural error—which is why Stevenson stands out and demands scrutiny. If Minnesota is going to have one rule for everyone, then cases like Weidenbach, A.J.G., Leckner, McCorquodale, Abel, Knopik, Bowlby, Scudder, and Oxendine cannot mean one thing for some litigants and something else for others. Justice requires consistency—and accountability when that consistency falters.

For additional background and AI-assisted analysis of independent judicial investigations, visit our Independent Investigations page.