The Illinois Supreme Court has adopted a new Code of Judicial Conduct which will go into effect on January 1, 2023. The opinions listed here were published under the prior code, and are now subject to potential changes. The IJEC is currently in the process of reevaluating each of these opinions in light of the new Code of Judicial Conduct, and will be updating the opinions on a rolling basis.

2016-02 

Topic:              Judge’s sua sponte access, via computer, of the court’s own records in other cases as part of sentencing.

Digest:             A judge has the authority to sua sponte take judicial notice of adjudicative facts from the Court’s own records; doing so as part of sentencing is permitted and is not a judicial investigation in violation of Supreme Court Rule 63 if the Court follows appropriate procedural safeguards.

References:    Supreme Court Rule 62(A); Supreme Court Rule 63 (Committee Comments); Illinois Rules of Evidence, Rule 201.

Facts

The circuit in which the inquiring judge sits provides each judge with a computer on the bench and in chambers which allows the judge access to court records showing a defendant’s entire criminal case history within that county; this includes both open and closed cases, as well as juvenile cases.  It is the inquiring judge’s practice, as part of sentencing, to review criminal history as reflected in the court’s computerized records.  The Committee answers this question operating under the assumption that any of the records accessed by the judge could be accessed by both sides in the case using similar means.

Issue

1.  In sentencing a criminal defendant, is it ethically impermissible for a judge to view or verify a defendant’s criminal history via the Circuit Clerk’s records which are accessible by all judges via computer?
2.  Would reviewing the court’s record constitute an impermissible independent investigation even if disclosed to the parties?

Opinion

The Committee answers this question operating under the assumption that any of the records accessed by the judge could be accessed by both sides in the case using substantially similar means. The Committee discusses below the necessity for both sides, including pro se litigants, to have equal access to the records and an opportunity to be heard on objections to the judicial notice of records.

A judge reviewing court records outside of the case over which he or she is presiding can, under some circumstances, involve the permissible taking of judicial notice.[1]  Before addressing the ethical implications of that practice, the Committee believes it would be helpful to set out a basic summary of the law concerning a court’s ability to take judicial notice.

Judicial Notice.  The concept of judicial notice is “founded on the assumption that certain factual determinations are not subject to reasonable dispute and thus may be appropriately resolved other than by the production of evidence.”  Michael H. Graham, Graham’s Handbook of Illinois Evidence, §201.1 (2016 Edition).  Judicial notice extends particularly to “adjudicative facts.”  The Illinois Rules of Evidence state that a “judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”  Illinois Rules of Evidence, Rule 201(b).  Judicial notice does not extend to otherwise impermissible evidence, such as hearsay.  In re A.B., 308 Ill. App. 3d 227, 237, 719 N.E.2d 348, 357 (2d Dist. 1999).  Critical to the discussion here is that it is permissible for a Court to take judicial notice of its own records, including its records in another case.  People v. Davis, 65 Ill.2d 157, 357 N.E.2d 792 (1976). 

Procedural safeguards are required when judicial notice is taken.  The judge must make clear during the course of the proceeding, and not after the evidence is closed, what matters are being judicially noticed.  People v. Barham, 337 Ill. App. 3d 1121, 1129, 788 N.E.2d 297, 304 (5th Dist. 2003); see also People v. Smith, 176 Ill. 2d 217, 237-38, 680 N.E.2d 291, 304 (1997).  The parties are entitled, upon timely request, to an opportunity to be heard as to the propriety of taking judicial notice “and the tenor of the matter noticed.”  Illinois Rules of Evidence, Rule 201(e).  Absent prior notification, the request to be heard may be made after judicial notice has been taken.  Id.

With respect to a court taking judicial notice sua sponte, the Illinois Rules of Evidence specify that a court “may take judicial notice, whether requested or not.”  Illinois Rules of Evidence, Rule 201(c).  Cases which predate the Rules of Evidence suggest, however, that taking judicial notice sua sponte is something done in “rare instances.”  In re S.M., 2015 IL App (3d) 140687, ¶27.  Furthermore, the court should insure that taking judicial notice sua sponte does not amount to advocacy for either party.”  In re Marriage of Danko, 230 Ill. App. 3d 572, 577, 595 N.E.2d 129, 133 (1st Dist. 1992).

Consequently, taking judicial notice of records from another court file, in and of itself, is not improper provided the judge adheres to the procedural limitations discussed above.  The Committee views the issue as primarily one of legal procedure, and not one of judicial ethics.  It is important to be aware of these essential procedural requirements of judicial notice, however, because compliance with them is assumed for purposes of the discussion of the ethical issues discussed in the following section. 

In reaching its conclusion, however, the Committee feels that the particular judge’s competence to navigate the computerized court records is essential.  As noted above, only facts which are “not subject to reasonable dispute” are the proper subject of judicial notice.  The judge must be confident that his or her review will lead to accurate information.  For example, indexes of computerized court records are likely to contain individuals with the same name; is the inquiring judge capable of finding the appropriate records and accurately matching them to the party in question?  Judges must be aware of their own skills and, more importantly, their limitations, and they must be especially sensitive to the procedural requirement that the parties be given the opportunity to comment on the propriety of taking judicial notice of the records at issue.  If the judge is taking notice of and relying on juvenile records, he or she must be aware that the parties will likely not have the same ability to access those records.  Giving the parties meaningful input on records accessed by the judge instanter may at times necessitate continuances to allow the parties time to investigate.  These are matters which the judge must weigh in determining the ultimate utility of the practice at issue.

Ethical limitations on judicial investigation.  The caption to Supreme Court Rule 63 states, “A Judge Should Perform the Duties of Judicial Office Impartially and Diligently.”  The Rule does not elaborate on the parameters of this duty in a way which would be helpful here, but the Committee Comments to the Rule state that a “judge must not independently investigate facts in a case and must consider only the evidence presented.  The question narrows to whether a judge sua sponte taking judicial notice would run afoul of the prohibition against conducting an independent investigation.

While the comments to Rule 63 would, taken literally, prevent a judge from ever taking judicial notice sua sponte, it is unreasonable to anticipate that the Illinois Supreme Court would interpret Rule 63 in such an absolute manner.  The Supreme Court has, in the past, commented that the rule against independent judicial investigation is “exclusive of certain matters of which the court may take judicial notice.”  People v. Smith, 176 Ill. 2d 217, 237-38, 680 N.E.2d 291, 304 (1997), quoting People v. Rivers, 410 Ill. 410, 416, 102 N.E.2d 303, 306 (1951).  The Committee is confident that the explicit provisions of Rule of Evidence 2.01 concerning the taking of judicial notice “whether requested or not” would prevail over the comments to Rule 63.

While the foregoing suggests that there is not any per se ethical impediment to a judge taking judicial notice, even on a sua sponte basis, the final aspect of the question presented here is whether a judge could permissibly do so regularly and as a matter of standard practice in sentencing.  It must not be overlooked that, in this very same context, courts routinely conduct presentence investigations (PSIs) prior to sentencing, but the investigator is the Court’s agent - the probation department arm of the court.  730 ILCS 110/15.  Indeed, in felony cases, a PSI is usually required.  730 ILCS 5/5-3-1.  The purpose is to give the sentencing judge all necessary information concerning the defendant before sentence is imposed, including the defendant's criminal history.  People v. Youngbey, 82 Ill. 2d 556, 564, 413 N.E.2d 416, 420-21 (1980).

Consequently, in the context of sentencing, it is unquestionably appropriate for the judicial branch to undertake an investigation which includes investigation of a defendant’s criminal history.  Reliance on a presentence report or similar information from the Court’s probation department is the preferable course.  See Bradley v. Dist. of Columbia, 107 A.3d 586, 600 (D.C. Ct. App. 2015).  There are, however, practical impediments to having a PSI available to the sentencing judge in many non-felony cases.  Review of a court’s own records can help fill that gap by providing the sentencing judge with confirmation of a defendant’s criminal history in that jurisdiction. 

As is true with so many elements of modern life, technology sometimes makes it possible for one individual to accomplish what in the past might have required a team effort.  The Committee feels that it would ignore the utility of computerized court records to conclude that a judge engages in impermissible investigation by utilizing technology to access information which ideally should be known at the time of sentencing, but which would otherwise be unavailable.  It is difficult to discern a rationale which would find it impermissible for a judge to directly undertake an investigation which he or she could have the court’s agent – the probation department – undertake on its behalf.  The caveat here, once again, is that the judge must be capable of performing the record search competently.

In reaching this conclusion, the Committee cautions that the practice described here is an exercise in judicial notice, so all of the attendant procedural safeguards, such as notice and an opportunity to object, must be honored.  These procedural requirements are “critical, because even court records may contain inaccurate or incomplete information. And accurate records can be misinterpreted or misunderstood.”  Bradley, 107 A.3d at 600.  Furthermore, the Committee recommends that, if this is to be a regular procedure, the judge utilizing it should make effort to ensure that those appearing before him or her, including pro se litigants, are aware of it.  This might be accomplished by adoption of a standing order or local rule, issuance of a notice to the local bar, or other suitable means. 

Conclusion

A judge may, under the authority of judicial notice, review criminal history contained in the Court’s computerized records as part of sentencing, as long as the established procedural safeguards for taking judicial notice are adhered to.