There used to be a family judge, who, with his law clerk, spent a lot of time on Google, looking up property records, Zillow “values” and other information regarding the parties and their property. While most of the time it proved harmless, I was always concerned about the court relying on evidence that was not in the records – that is, not contained in the motion papers if it was a motion, or in the trial testimony or evidence at a trial.
Now judges are permitted to take what is called “judicial notice” of both the law and of certain facts. In fact, New Jersey Evidence Rule 201(b) provides:
(b) Notice of Facts. The court may judicially notice a fact, including:
(1) such specific facts and propositions of generalized knowledge as are so universally known that they cannot reasonably be the subject of dispute;
(2) such facts as are so generally known or are of such common notoriety within the area pertinent to the event that they cannot reasonably be the subject of dispute;
(3) specific facts and propositions of generalized knowledge which are capable ofimmediate determination by resort to sources whose accuracy cannot reasonably be questioned; and
(4) records of the court in which the action is pending and of any other court of this state or federal court sitting for this state
So as to my prior comments, looking up property records is probably ok – Zillow probably not so much.
But what happens when a judge relies upon facts or information that is not in the record in order to make a decision. Well, on April 19, 2021, the Appellate Division answered this question in and unreported (non-precedential) opinion in the case of S.T.T. v. M.T.M. This case happened to be an domestic violence case. Immediately prior to the start of trial, the judge addressed an incident that occurred at a prior court proceeding where “[t]here were discussions about [a] potential adjournment of the proceeding” but that during a “break” in the proceeding, “defendant left due to a medical emergency and the matter was” rescheduled. The judge demanded an explanation and the Defendant’s counsel explained defendant suffered from a condition that had been recently diagnosed and defendant “had an episode just outside the courtroom” during the break in the prior proceeding. Defendant’s counsel further advised that defendant brought “medical records [showing] what actually took place” and the records were provided to the judge.
Without getting into the facts of the domestic violence other than to say that there was conflicting testimony of the parties and that the police did not note any injuries when they arrived, the trial judge used defendant’s leaving the prior proceeding against him as it related to his credibility and granted the plaintiff a Final Restraining Order. In doing so, the judge stated:
And perhaps most significantly, the [c]ourt takes note of what took place in court the last time this matter was heard . . . during which time the parties were seeking to work out an adjournment in order for the defendant to engage in some discovery, that it became evident that an agreement was not going to be able to be reached at that point in time, and it was only during a recess following the determination that it became clear that the case was going to proceed and would not be adjourned, that the incident in which the defendant sought medical attention . . . came to pass.
Now, certainly, there’s been documents that have been presented that explain both—or purport to explain . . . defendant’s medical condition and the episode that occurred . . . . However, the [c]ourt, taking in consideration the totality of the circumstances and the situation that preceded the alleged medical emergency, concludes that . . . defendant’s testimony lacks credibility for those reasons.
[(Emphases added) in original.]
The Appellate Division reversed. In doing so, the court noted that Appellate Court’s should typically defer to the trial courts’ credibility findings that are often influenced such as observations of the character and demeanor of witnesses and common human experiences that are not transmitted by the record. That said, the reason for the reversal was that the trial judge relied on things outside of the testimonial record of the hearing in making it’s credibility determination. Specifically, the Appellate Division held:
The court erred in making its credibility determination because it relied on information and events outside the trial record. Prior to the start of the trial, the court focused on defendant’s purported medical emergency at the previous proceeding, and the court’s preoccupation with the purported emergency continued through the end of the FRO trial. There was no testimony or evidence concerning the emergency during the FRO trial, but the court relied on defendant’s claimed medical emergency to support its finding defendant’s trial testimony was not credible. Indeed, the court relied on its apparent disbelief that defendant suffered a medical emergency necessitating an adjournment of the prior proceeding as “perhaps” the “most significant” fact supporting its finding defendant was not credible, and the court took into “consideration
the . . . circumstances and the situation that preceded the alleged medical emergency” to conclude “defendant’s testimony lack[ed] credibility for those reasons.”
The court’s reliance on the medical emergency to support its credibility determinations was in error. The court’s consideration of facts and circumstances “that were not part of the hearing record should not have played any part in the judge’s decision. Because matters outside of the hearing record were considered and relied upon in reaching [its] conclusions,” the court’s credibility findings lack adequate support in the evidentiary record. In re Forfeiture of Pers. Weapons & Firearms Identification Card belonging to F.M., 225 N.J. 487, 513-14 (2016). Indeed, the court’s findings based on defendant’s
actions in proceedings prior to the FRO trial suggest the court improperly prejudged defendant’s credibility before the trial began. “A judge’s suspicions about a litigant’s veracity . . . can never stand in the stead of a fair process, founded on an impartial consideration of evidence by a fair and impartial judge.” McGory v. SLS Landscaping, 463 N.J. Super. 437, 457-58 (App. Div. 2020).
As a result, the FRO was vacated and the matter remanded for a trial before a new judge.
The take away is that if if a court is going beyond the record in a prejudicial way, that can, and where appropriate, it should be challenged.
Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or firstname.lastname@example.org.