Judges play a vital role in the justice system. The way they think during criminal trials has thus been of much interest to everyone who believes that a good justice system is necessary for the development of the society. Thinking is more of a deliberative process than intuitive. As such, this essay will lay more emphasis on the deliberative processes than the intuitive processes. First however, the essay acknowledges the effect of the intuition and the effect it has on decision making in courts.
It is no doubt that judges perceive the law as an instrument through which morality and progress can be maintained in the society. More to this, they perceive the law as the instrument for shaping the society. To the society, law is a great equalizer because every one is equal before it and is the last resort where they get justice.
The big question to any observer of criminal trials is: how exactly do judges think in criminal trials? There are two models offered by theorists to explain how judges think. The formalist model; which indicates that judges listen to cases and apply the law in a logical, deliberate and often mechanical way to the facts presented before them (Guthrie et al 24). The second model argues that the judge acts like a skilled mechanic, who only applies the law to cases depending on the logical and deductive reasoning presented before the courts.
Legal realists on the other hand states that; as human beings, judges use deliberate reasoning and intuition to reach conclusions about criminal cases presented before them. Rather than using judgment to decide the case, legal realists believe that judges rely more on their feelings.
Instead of ratiocination, legal realists further believe that judges use “hunches” to decide criminal cases. This argument indicates that it is only later that judges use their deliberative faculties to justify their decisions (Bix 183). However, how judges think cannot be contained in narrow definitions. While some love facts as the basis for their judgments, others simply like gnomic epigrams and abstraction.
None of the models that try to explain how judges think at criminal proceedings is satisfying. It is however clear that judges use intuition during criminal trials, yet they also apply the law to facts therefore disapproving any of the theories. As human nature would have it, Judges although usually unaware of it, often rely more on intuition than deliberation (Guthrie et al 27).
This however places them at a greater risk of developing hindsight bias where they allow their knowledge to affect their decisions. In this case, the judge may think that something was pretty obvious to the accused, while in reality the opposite might have been true.
Louis D Brandeis goes down in history as a high court judge who loved facts, and outspoken about them and in fact stated that no judgment should ever be done without a judge understanding all the issues contained in the trial. His strong regard of the law earned him enemies, who saw him as a radical. His no-nonsense stance on legal issues is equated with Justice Wendell Holmes approach to the same (Melvin 56-105).
Unlike Brandeis, Holmes made no secret about his dislike of facts, especially in cases where he was expected to hand the generalizations of the case on the same (Melvin 214).
According to (Guthrie et al 27), judges are often affected by the hindsight bias on appeal cases. However, judges resist the bias on “probable cause” cases, since the ruling on such cases is guided by the fourth amendment jurisprudence, which guides the determination of such cases.
The fourth amendment signals to the judges that intuition may be inconsistent with the law, and a judge therefore needs to think through the rules carefully before making a judgment. This however does not mean that judges do not need to use intuition; just that they need to be more careful and objective when deciding cases.
In some cases, the law does not offer relevant statutes, contracts, common law or provisions that are adequate to resolve a case. This is normally referred as legal indeterminacy (Modak-Truman 1). Often, when such is is the case, a judge, hard-pressed for answers will rely on his beliefs on what is the proper social order.
This in many cases means that the judge relies on his comprehensive conviction. This may include applying his beliefs regarding politics, society, morality and history. Aptly put, the judge relies on extra-legal norms to determine the outcome of the criminal proceedings.
Justifying their ruling when using the extra-legal norms is always a hard task for judges who have to clearly explain how the decision was made in written opinions. Such could be equated to the few legal citations that Brandeis made, and backed with studies, statistics, scientific and sociological reports in order to add reality to the arguments of a legal battle (Melvin 138).
As a result such arguments are known as Brandeis briefs. Unfortunately, opinion writing is not always a requirement for judges. Brandeis approach was unlike Byron White’s approach, which is described as “narrow and one that avoided doctrinaire opinions” (Hutchinson 34). Both Brandeis and White were however revered judges, often attracting the wrath of the media because of the writings, which resisted the fashionable opinions to give the “hard truths”.
Unlike Intuition, thinking during a criminal trial is more complex, effortful and a slow process. It is however more careful, entailed and stands more chances of being accurate. Their thoughts are based on how the accused appears in court, his mannerisms and evidence given in the litigation (Melvin 64).
According to (Posner 68), judges are more likely to convict a defendant than a jury because they have come to learn that prosecutors rarely file criminal cases unless the evidence against the accused is overwhelming. This is usually on the assumption that prosecutors have limited resources that allows them to focus on cases that have clear guilt.
Preconceptions also determine a judge’s thinking regarding a case as evidence in political judging. Although Judges make all the necessary efforts to be good judges and see to it that justice is committed, (Posner 69) argues that judges suffer unintentional biases in their thinking. This includes conscious falsification, whereby judges report facts in a manner that fits their legal conclusions. Here, a judge may omit facts that he considers irrelevant from his opinions.
Judges’ thinking is also shaped by temperament, experience, ideologies and other non legalist factors. These factors are un-eliminable and ubiquitous, since they cannot be ignored by the judge. Ignoring such would be tantamount to trying to think in a vacuum. Past experiences, either as a prosecutor, defense lawyer or in the hands of the police may all come in to play especially if there is conflicting evidence and the judge is not sure what to believe.
Judges are human beings, as such; irrelevant reactions to the accused, a lawyer, lifestyle and religion may all play a part in how they think. Fortunately, with proper reasoning, most judges are able to pass rulings without respect to a person, as their oaths direct them to. We cannot however overrule the likelihood that such irrelevant reactions affect the way judges think, and consequently, the nature of the ruling that they make.
As overseers of the justice system, it is always in their best interests (career wise and for power reason) and the societies that Judges think objectively in criminal cases. Deciding cases in accordance with the law is always the best bet for most judges. However, seeing that law is not always very definitive in some cases, the judge has to rely on his own legal analysis, personal and social responsibility.
This allows him to pass adequate judgment to punish the misconduct by the accused. Here, it is expected that a judge considers the effects that the punishment will have on the defendant. Retribution and rehabilitation are the two main options that judges base their judgments on.
Legalist thinking indicates that in the presence of facts and all necessary materials in a criminal case, judges’ mode of thinking is almost straightforward; all they do is read the material, see the exhibits and listen to testimonies and then base their ruling on the same.
When faced with non-routine cases however, judges are forced to navigate uncharted waters where their emotions, unconscious beliefs and experiences all contribute to the way they perceive the case and eventually the decisions they make regarding the same. The level of freewheeling is however restricted by professional ethics, limitations in law and the opinions from other judges. This means that most judges combine legal pragmatism in reasoning out cases.
Bix, Brian. Jurisprudence: Theory & Context. 4th ed. Florida: Carolina Academic Press, 1996. Print.
Guthrie, Chris, Rachlinski, Jeffrey and Wistrich, Andrew. “Blinking on the Bench: How Judges decide Cases.”
Colonel Law Review. Vol. 93(1), (2007) 1-44.
Hutchinson, Dennis. The man who once was Whizzer White: a portrait of Justice Byron R. White.
Michigan: University of Michigan, 2008. Print.
Melvin I, Urofsky. Louis D. Brandeis: A Life. NY: Pantheon, 2009. Print.
Modak-Truman, Mark. “Reenacting the Law: The Religious dimension of Judicial Decision making.” Center for Process Studies. January 2005. Retrieved on February 16, 2010, from:
Posner, Richard. How Judges Think. New York: Harvard University Press, 2008. Print.