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JULY 2013 NEWSLETTER - Cohen Article
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Communication and Trial Practice Tips for the Woman Lawyer

Judge’s “Friend” Status Not Enough for Recusal

 by Cynthia Cohen, Ph.D.

A New York judge’s “friend” status calls into question social media relationships and takes into consideration recognizing one’s own bias. The New York State Committee on Judicial Ethics believes the mere status of being a Facebook friend does NOT require a judge to exercise recusal. Judges “ultimately determine the nature of their own specific relationships with particular individuals and their own ethical obligations resulting from those relationships.” (NYCLA Committee on Professional Ethics Formal Opinion)

This opinion arose from a judge inquiring whether it was necessary to recuse himself from a criminal trial where he is a Facebook friend acquainted with the parents of minors who allegedly were affected by the defendant’s conduct. The judge states that the Facebook nomenclature “friend” is too strong a descriptive, that these parents are mere acquaintances, and that he can be fair and impartial.

Most judges intend to be fair. However, judges are people too. Bias is encountered to different degrees everyday in courts whether with a judge or a jury. When a judge asks jurors, “Can you be fair?” perceptions of authority frequently compel a “yes” reply, even though jurors are riddled with bias. Social desirability to be fair is a strong motivational factor.

Often a judge or juror recognizes bias, but believe that it does not affect decision-making. Bias does not imply misconduct. Bias helps in decision-making by establishing a framework for comparing right or wrong on many different levels. In the Apple v. Samsung verdict, bias in jurors did not rise to the level of misconduct.

Do we recognize our own biases? Sometimes – but mostly not. An “acquaintance” or a “friend” could mean one travels in the same circles, such as your kids play in the same soccer league or attend Boy Scouts camp together. There are common values that link individuals to a group affiliation. Despite the Groucho Marx quip about refusing to join any club that would have him as a member, most people affiliate with people like them. The affiliation and familiarity with the group tends toward liking individuals within the group. Taking an action such as connecting to a Facebook friend indicates a level of acceptance. Conversely, some people like to keep their enemies close and connect with people they do not like.

Other ethics opinions stem from prevalent social media use. The Association of the Bar of the City of New York Committee on Professional and Judicial Ethics released a formal opinion in 2010 that stated that obtaining evidence from social networking websites is okay as long as one does not deceptively communicate (or deceptively “friend” a potential witness or juror in the process). In today’s courtroom, trial lawyers must include social media searches to flush out bias while the case is in progress.

What can a trial lawyer do when a judge shows bias and chooses to remain rather than recuse from a case? At the trial level, it appears that the defendant will need to look for other appellate issues if the trial outcome is not to the client’s liking.

WLALA Member Cynthia Cohen specializes in jury research, trial strategies, and settlement decision-making at Verdict Success. Dr. Cohen can be reached at 310-545-7914 or