The Problems Caused by Extrajudicial Speech and Writing
453 COURTING CONTROVERSY: THE PROBLEMS CAUSED BY EXTRAJUDICIAL SPEECH AND WRITING Jasmin Moran* This article explores the problems for judicial impartiality that a judge's extrajudicial speaking or writing on legal matters may create. Examples from New Zealand and abroad demonstrate such extrajudicial commentary may lead to a finding of apparent bias or require that a judge recuse him or herself from hearing a case. The current regulation of extrajudicial speech, as ascertained from judicial conduct codes and case law, provides that judges can speak and write extrajudicially but must exercise caution in the tone and language they use. The article concludes that this is an appropriate approach and that the alternative of judicial silence is undesirable. I INTRODUCTION In 2012, when Judge David Harvey spoke at the NetHui conference on internet law months before he was due to hear Kim Dotcom's extradition hearing, no one expressed concern. This is largely because the practice of judges writing or speaking extrajudicially is common in New Zealand and seen as largely innocuous. However, when, in the course of his speech, Judge Harvey joked that the United States was the "enemy", it led to a media furore. In those circumstances, the Judge chose to recuse himself from hearing the case. This example demonstrates that extrajudicial commentary, while it may appear benign, can have serious consequences. Specifically, such commentary may be the basis of a determination that a judge is biased or may necessitate recusal. The purpose of this article is to explore this problem. As background to the issue, Part II discusses the concept of judicial impartiality and why it is demanded.
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