When Judges Investigate on Their Own

Introduction

Two Minnesota appeals asked the same basic question: what happens when a judge relies on facts gathered outside the record? State v. Scudder resulted in reversal even without a contemporaneous objection; Stevenson v. Stevenson treated a comparable claim as forfeited. The contrast shows that the same rule was applied in opposite ways.

Judges cannot act as their own investigators. They cannot perform Google searches, consult outside sources, or gather disputed facts that were never introduced into evidence. When they do, they step outside the neutral role assigned to the court.

The Scudder Case: No Objection, Still Reversal

In State v. Scudder (2022), the defendant challenged a restitution award after pleading guilty to theft. During the restitution hearing, the district court judge openly admitted that she had gone online and checked Kohl’s website to determine the value of earrings—facts never introduced by the prosecution. The judge shared these findings at the end of the hearing, after the parties had already argued their positions. Notably:

• Scudder did not object when the judge revealed this extra-record research.
• Scudder did not respond to the judge’s findings.
• The judge used those self-sourced facts anyway to justify restitution.

On appeal, the Court of Appeals did not penalize Scudder for failing to object in the moment. Instead, it recognized that judicial independence was compromised. Citing State v. Dorsey, the court held this was a structural error—so serious that it required automatic reversal, without any showing of prejudice. The decision was sent back for a new hearing. (Scudder, at 6–8.)

The Stevenson Case: The Same Conduct, But “Forfeited”

Fast forward to Stevenson v. Stevenson (2025). In this civil defamation and Intentional Infliction of Emotional Distress (IIED) case, the plaintiffs moved to recuse Otter Tail County Judge Kevin Miller after discovering that his law clerk, James Morrison, had undisclosed ties to the defense counsel’s family. During the recusal hearing, Judge Miller revealed—again, at the very end of the hearing—that he had performed his own investigation into Morrison’s past employment. He then used those facts to discredit the plaintiffs’ evidence, framing the conflict as minimal or nonexistent. Just as in Scudder:

• No objection was made in the moment because the judge disclosed his self-sourced facts only after argument had closed. (See Doc. 544, at 24-26.)
• The judge still used those extra-record findings to decide the motion.

But here, the Minnesota Court of Appeals took a different stance. Instead of treating this as structural error, it ruled that the plaintiffs had “forfeited” the issue by not objecting when Judge Miller disclosed the results of his investigation. The court cited Thiele v. Stich to claim that unraised issues cannot be considered on appeal. (Stevenson, at 11–12.)

The Inconsistency: Why Scudder Got Relief and Stevenson Did Not

This contrast exposes a troubling inconsistency:

• In Scudder, the lack of objection did not matter. Judicial impartiality was paramount, and the judge’s independent investigation required reversal.
• In Stevenson, the lack of contemporaneous objection was treated as fatal—even though the judge’s independent investigation involved a law clerk’s conflict of interest, which directly implicated due process.

The principle should be uniform: judges must never investigate facts on their own. If they do, the error is structural, not subject to forfeiture. But in Stevenson, the Court of Appeals sidestepped this principle, suggesting that litigants must object in real time—even when that’s practically impossible because the judge drops those findings at the very end of the hearing.

Scudder and Stevenson: The Same Conduct, Different Rules

The problem is bigger than two cases. If Minnesota appellate courts enforce the rule in one case (Scudder) but excuse it in another (Stevenson), the message to litigants is chilling: your right to an impartial judge depends not on principle, but on timing, politics, or personalities. This undermines trust in the courts. Justice cannot depend on whether a party is quick enough to interrupt a judge in the moment—especially when the judge is revealing facts outside the record at the very end of a hearing, leaving no meaningful chance to object immediately. The Minnesota Court of Appeals had it right in Scudder: independent judicial investigations are structural errors requiring reversal. By refusing to apply that same principle in Stevenson, the court created a double standard that weakens judicial accountability and erodes public confidence.

Scudder v. Stevenson: A Tale of Two Standards

✨ Takeaway: In Scudder, the Minnesota Court of Appeals recognized that judicial independence is too important to hinge on whether a party objects in real time, or objects at all. But in Stevenson, the court reversed course, treating forfeiture as more important than due process—even when the judge revealed extra-record facts at the end of the hearing, leaving no chance for a contemporaneous objection, and even when a written response was officially filed just days later.

✨ Bottom line: If one litigant’s rights deserve reversal when a judge consults Kohl’s website, then another litigant’s rights deserve the same protection when a judge digs up facts about his own law clerk. Anything less is unequal justice.

Related Analysis

• See the statewide pattern in Independent Investigations—By the Numbers.
• Follow the resulting oversight complaint in When the Judges Investigate Themselves.

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