Judge And Witness Were Facebook Friends But Conviction Affirmed

The Tennessee Court of Criminal Appeals affirmed a conviction in a drug distribution case notwithstanding the fact that the judge was Facebook friends with an undercover informant who was a key state witness.

The court found that the digital connection did not create an appearence of impropriety or impair the judge’s responsibilities as the thirteenth juror

The Defendant asserts that because the trial judge is Facebook “friends” with Dunaway, the appearance of bias is present. In this instance, the Defendant has simply not established that the trial judge’s participation in the social network Facebook prevented him from properly exercising his role as thirteenth juror. The record in this case is not developed as to the length of the Facebook relationship between the trial court and the confidential informant, the extent of their internet interaction or the nature of the interactions. The fact that the trial judge was “friends” on Facebook with a witness is not sufficient proof that the trial court could not impartially fulfill its duty as thirteenth juror. In our review of the record, we find nothing to suggest that the trial court did not adequately function in its role as thirteenth juror and nothing to indicate bias on the part of the trial court.

There is a warning note in a concurring opinion

…the opinion in my view should not stand for the proposition that a judge’s Facebook relationship with a litigant or a key witness for a litigant poses no ground for disqualification. I accept and agree with the trial judge’s commentary that one cannot reasonably expect a trial judge living in a small community to recuse himself or herself because he or she is acquainted with a litigant or a key witness. When a judge shares a Facebook “friendship” with such a person, however, the aggrieved party may be able to show that this “social media” relationship is more active, regular, or intimate than mere incidental community propinquity might suggest. For instance, how intentional is the relationship? Who initiated it and when? How do the participants use the medium? What type of information is shared? What is the frequency of the communications? Certainly, I could envision a properly presented Rule 10B motion that, upon proof, evinces at least an appearance of impropriety. See Tenn. Sup. Ct. R. 10 §1.2 (“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 impropriety and the appearance of impropriety.”). For instance, as in the present case, the judge’s familiarity with the Facebook “friend” may indicate his or her awareness of the “friend’s” conflict with the criminal justice system.

(Mike Frisch)