Fact Finding and Law Making in the Digital Age

It was almost midnight on Friday and Officer Alex Eckstein was on routine patrol. He saw a vehicle speeding at 38 miles per hour in a 30 miles-per-hour zone. Officer Eckstein also saw the vehicle weaving in its lane, including touching the center line. Officer Eckstein activated his emergency lights and pulled the vehicle over. While speaking with the driver, Officer Eckstein detected the odor of an alcoholic beverage. The driver denied having anything to drink that evening and also refused to cooperate with questioning. Officer Eckstein called for backup and a second officer who arrived on the scene also detected the odor of alcohol. The driver continued to refuse to cooperate or to get out of her vehicle for field sobriety tests.

Eventually the officers forcibly removed the driver from her vehicle and arrested her for driving while impaired and careless driving. Because the driver had refused field sobriety tests, the Minnesota Commissioner of Public Safety revoked her driving privileges. The Dakota County District Court sustained the revocation after finding that the officers had probable cause to believe the driver was impaired by alcohol. The driver appealed and, in considering the appeal, the Minnesota Court of Appeals turned in part of the video of the incident.

Any law student is familiar with the theoretical distinction between facts and law, although the line between factual findings and legal conclusions is not always clear, even for experienced litigators — and some judges. The distinction matters a lot in appellate work because, under the almost universal appellate standard of review, factual findings are only disturbed if they are clearly erroneous while legal determinations are reviewed de novo, meaning they’re given no deference. And sometimes there are mixed questions of law and fact. This complicated interplay can mean the difference between victory and defeat for an appellant.

Appellate work in the digital age makes that interplay even more complicated. These days it is not uncommon to find relevant videos and other digital evidence in the record. In addition, the Internet puts a vast catalog of information at the fingertips of appellate judges. The extent to which judges can and should use these tools to shape their understanding of the record is currently being debated all around the country. See, e.g., Edward K. Cheng, Independent Judicial Research in the Daubert Age, 56 Duke L.J. 1263 (2007); Alli Orr Larsen, Confronting Supreme Court Fact Finding, 98 Va. L. Rev. 1255 (2012); David H. Tennant & Laurie M. Seal, Judicial Ethics and the Internet: May Judges Search the Internet in Evaluating and Deciding a Case?, 16 Prof. Law. 2 (2005); Elizabeth G. Thornburg, The Lure of the Internet and the Limits of Judicial Fact Research, 38 Litig.41 (Summer/Fall 2012). But whatever the merits of doing so, it is a fact judges are looking at this digital record. Appellate litigators need to be aware of this new terrain.

In State v. Chavarria-Cruz, the defendant was convicted of second-degree murder based in part on a videotaped confession. 784 N.W.2d 355 (2010). The Minnesota Supreme Court considered the question of whether the defendant had invoked his constitutional right to counsel before he confessed; if he had, then police should have stopped interviewing the defendant until counsel was present.  The district court held a hearing on the confession, and based on the testimony of the interviewing officer, found that there had been no request for a lawyer. While the official transcript of the interview read that the defendant had said, “I think I need a lawyer,” the appellate court viewed the video and determined the defendant had actually said something closer to “get me a lawyer.” Id. at 359–60. Based on the Supreme Court’s independent review of this video evidence, and the “powerful evidentiary value of [the defendant’s] confession,” the court held that the error of admitting the defendant’s confession entitled the defendant to a new trial. Id. at 365.  So much for deference to the factual findings of the district court.

In State v. Wilson, the Minnesota Supreme Court considered whether the trial court erred by preventing a defendant from presenting a voluntary-intoxication defense. 830 N.W.2d 849 (Minn. 2013). In that case, there was a surveillance video of the entire incident. The Supreme Court concluded there was “overwhelming evidence” that the defendant acted with the requisite intent — and therefore that it was beyond a reasonable doubt that the omission of the voluntary-intoxication defense did not significantly affect the verdict. In reaching this conclusion, the court independently viewed the surveillance video and noted that “[t]he video shows that, at the time of the [incident], [the defendant] was walking and moving in a coordinated manner without observable physical signs of intoxication.” Id. at 858.

Video evidence is not the only form of newly available digital evidence. In N.Y.C. Medical & Neurodiagnostic, P.C. v. Republic West Insurance Co., the Civil Court of the City of New York was faced with determining whether it had personal jurisdiction over the defendant. The court turned to the Internet, where it learned that the defendant was licensed to do business in the state, that the defendant operated in 49 states, including New York, and that the defendant had multiple facilities in each county at issue. 774 N.Y.S.2d 916, 919–20 (N.Y. Civ. Ct. 2004). The trial court was reversed on appeal for conducting its own fact finding, but a dissent would have affirmed the trial court’s use of the Internet to take judicial notice of certain facts, at least those from government websites. NYC Med. & Neurodiagnostic, P.C. v. Republic W. Ins. Co., 798 N.Y.S.2d 309, 314–15 (N.Y. App. Term 2004) (Pesce, P.J., dissenting).

As more appellate judges use search tools to help inform their appellate considerations, it is not at all clear that judicial use of the Internet will be grounds for reversal. For instance, the 7th Circuit has noted that “a quick search of the Internet would have resolved this issue” for a party and the court used the Internet to confirm the location of a bank branch because “[w]e may take judicial notice of matters of public record.” Laborers’ Pension Fund v. Blackmore Sewer Constr., Inc., 298 F.3d 600, 607 (7th Cir. Ill. 2002) (citing www.harrisbank.com/personal/loc_ill.html; www3.fdic.gov/idasp//main.asp). Minnesota appellate courts have likewise used the Internet for their own limited fact investigations. See, e.g., State v. Peck, 773 N.W.2d 768, 775 n.3 (Minn. 2009) (Anderson, P.J., dissenting) (“A quick and rudimentary Internet search suggests that bong water is commonly altered using fruity flavors in an effort to mask the chemical flavor common to methamphetamine.”); City of Otsego v. New River Hosp. Dist., No. A09-1999, 2010 Minn. App. Unpub. LEXIS 851, at *23 (Minn. Ct. App. Aug. 24, 2010) (Johnson, J., concurring) (“Based on a casual search of the Internet, it appears that there are at least five hospital districts in Minnesota in addition to the New River Medical Center … .”).

The lesson here is that litigators need to be aware that appellate courts can and will look at digital evidence in the record to make up their own minds about what the evidence does and does not indicate. One way to view this is that the digital evidence itself is the “fact” in the record, and appellate courts can use that fact to support their legal conclusions. In addition, courts will also turn to the Internet to take notice of information — so be aware of what is publicly available to a court when crafting and presenting your arguments.

And what happened to the allegedly impaired driver at the beginning of the article? While the district court had relied only on testimony concerning the odor of alcohol, the Court of Appeals included a video of the incident among “other facts in the record” supporting its decision, and stated that “the video satisfies us that there is additional and substantial evidence suggesting impaired driving. The video shows [the driver’s] vehicle continuously weaving within its lane … .” Shimota v. Comm’r of Pub. Safety,No. A14-0618, 2015 Minn. App. Unpub. LEXIS 415, at *10 n.1 (Minn. Ct. App. May 4, 2015). Appellants beware: if it’s on video, it’s in the record.

Reprinted with permission of Minnesota Lawyer ©2015