What may a judge do after receiving third-party Facebook posts about a defendant after sentencing?
Apply this to your situation
This page answers the general question as of 2021. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.
Plain-English summary
After sentencing a defendant, a judge received a third party’s Facebook message about allegedly negative posts by the defendant. The judge asked whether to give the material to counsel or the court file and whether to discuss it with corrections officials.
The Commission said the judge should not review or consider posts about a pending or impending case supplied by a third party. Similar ex parte communications should go immediately to the prosecutor and defense attorney to investigate and take any action they consider appropriate. The judge should not contact Corrections because the judge cannot investigate whether the defendant made the posts, and such contact could appear to seek an effect on parole.
In practice
The opinion assigns investigation of the third-party material to the prosecutor and defense counsel, while barring the judge from independently checking the posts or alerting Corrections.
Common questions
Q: May the judge investigate the Facebook posts?
A: No. The Commission says the judge should not review or consider them or independently investigate whether the defendant posted them.
Q: What should happen to the message?
A: The Commission says similar ex parte communications should be referred immediately to both prosecutor and defense counsel.
Q: May the judge alert Corrections?
A: No. The Commission rejected that contact on the stated facts.
Background and rules framework
Rules 1.2 and 1.3 address public confidence and misuse of judicial office. Rule 2.9(A)-(C) restricts ex parte communications and independent factual investigation, including electronic information under Comment 6.
Citations and references
West Virginia Code of Judicial Conduct:
- Rule 1.2 and Comments 1-3, 5, public confidence and appearance of impropriety.
- Rule 1.3 and Comment 1, misuse of judicial prestige.
- Rule 2.9(A)-(C) and Comments 1 and 6, ex parte communications and independent investigation.
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2021-02, redacted
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.
JUDICIAL INVESTIGATION COMMISSION
City Center East - Suite 1200 A
4700 MacCorkle Ave., SE
Charleston, West Virginia 25304
(304) 558-0169 • FAX (304) 558-0831
January 21, 202 I
Re: JIC Advisory Opinion 2021-02
Dear Judge
Your recent request for an advisory opinion was reviewed by the Judicial Investigation Commission. The factual scenario giving rise to your request is as follows:
You sentenced a defendant in a criminal case to the penitentiaiy. A few days later, you received a message on Facebook from a third party alerting you to various posts allegedly made by the defendant after the hearing. The posts did not contain any threats, but the author made negative comments about and/or engaged in the name ca lling of the victim, the victim's relative who spoke at the sentencing hearing and/or you. TI1is is not the first time this has happened. You want to know if you are permitted to: (1) send the information you received to counsel and place a copy in the court file; and (2) discuss this issue with the Commissioner of the Division of Conections and Rehabilitation ("Con-ections").
To address your questions, the Commission has reviewed 1.2, 1.3 and 2.9 of the Code of Judicial Conduct which provide:
Rule 1.2 Confidence in the Judiciary
A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary and shall avoid in1propriety and the appearance of impropriety
Rule 1.3 A voiding Abuse of the Prestige of Judicial Office
A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others or allow others to do so.
JIC Adviso,y Opinion 202 1-02
January 21, 2021
Page 2 of3
Rule 2.9 Ex Parte Communications
(A) A judge shall not initiate, pem1it, or consider ex pai1e communications, or consider other conununications made to the judge outside the presence of the parties or their lawyers, concerning a pending or impending matter....
(B) If a judge inadve1iently receives an unauthorized ex parte conununication bearing upon the substance of a matter, the judge shall make provision promptly to notify the parties of the substance of the conmrnnication and provide the parties with an opportunity to respond.
(C) 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.
Conm1ent [1] to Rule 1.2 states that "[p]ublic confidence in the judiciary is eroded by improper conduct and conduct that creates the appearance of impropriety. This principle applies to both the professional and personal conduct of a judge. Comment [2] notes that " [a] judge should expect to be the subject of public scrutiny that might be viewed as a burdensome if applied to other citizens and must accept the restrictions in1posed by the Code." Comment [3] provides that " [c]onduct that compromises or appem·s to compromise the independence, integrity and impartiality of a judge undermines public confidence in the judiciary." Comment [5] sets fo11h the test for appearance of impropriety as "whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge's ... impartiality ... to serve as a judge.
Comment [ l ] to Rule 1.3 states that " [i]t is in1proper for a judge to use or attempt to use his or her position to gain personal advantage or deferential treatment of any kind." Conm1ent [ 1] to Rule 2.9 provides that "[t]o the extent reasonably possible, all parties or their lawyers shall be included in communications with a judge." Importantly, Conm1ent [6] states:
The prohibition against a judge investigating the facts in a matter extends to infom1ation available in all mediums, including electronic. Importantly, this provision is not intended to refer to routine court records available from the bench, as long as the records are disclosed to and subject to review by both parties.
Based upon the foregoing, you should not review or consider any Facebook posts about the subject of a pending or in1pending case that are refen-ed to you by a third pa11y. Any sin1ilar ex parte communication that you receive should immediately be referred to both the prosecutor and defense attorney to investigate its truthfulness and to take any fu11her action that they may deem appropriate. You should not contact Corrections and alert them to the situation since you do not know if and you cannot investigate whether the defendant in fact posted the conunents. Additionally, by doing so, you would create an appearance, however incorrect it might be, that you are trying to use your position to effectuate the outcome of a parole hearing.
JlC Advisory Opinion 2021-02
January 21, 202 1
Page 2 of3
The Commission hopes that this opinion fully addresses the issues which you have raised.
Please do not hesitate to contact the Commission should you have any questions, comments or concerns.
Sincerely,
Al~ a~h'l~
Judicial Investigation Commission
ADM/tat
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