As hard as try to believe that judges, as finders of fact, possess magical powers to discern truth from lies, it’s just not so. Rarely, however, is a judge honest enough to admit that the most crucial decisions made in the course of litigation, the very decisions that often result in life or death consequences for a party, are really “no more than a guess.” In the Connecticut Law Tribune, Hartford Superior Court Judge Trial Referee Robert Satter comes clean.
From the bench, we judges see mainly the profile of the witness as he responds to the questions of counsel in front of him. And we know so little of the witness – what kind of person he really is; who his friends are; what his neighbors, his pastor, and his fellow workers think of him. In the witness chair, he appears two-dimensional. The third dimension of his character is rarely revealed.
If we are honest with ourselves, in the final analysis our determination of the credibility of witnesses is no more than a guess. If we are wrong in that guess, we are very likely dead wrong in our decision of the case. Nor do the losers have recourse on appeal. The appellate court always defers to the trial judge, who saw and heard the witnesses, and it never reverses on his assessment of credibility.
Thus when deciding a court case, the judge lives with the possibility of making a total, irredeemable mistake — even worse, of causing a grievous injustice. That is scary.
He goes on to tell an anecdote that drives the point home:
This came dramatically home to me once when I decided a court case on the basis of believing one party instead of the other. A few weeks later, I got a letter from the party I disbelieved, enclosing a news item that reported that the witness I had believed had just been convicted in federal court for drug dealing. The loser wrote across the clipping: “And you believed this creep instead of me!” I winced.
Notably, it was a civil case. Would a wince have been enough if the loser had 25 years to think about the judge’s “irredeemable mistake?”
Lawyers steel themselves to survive in a world of ambiguity and injustice, because there’s no other way to survive. Judges do the same, knowing in their private thoughts that their credibility decisions are sheer guesses, almost invariably going with the odds absent some smoking gun that makes a witness flagrantly incredible. They use the language of burdens of proof, but the truth is that it’s just a gut feeling, like anyone else’s gut feeling, colored by the legalese required of the robe.
But judges don’t make credibility findings, juries do? The vast majority of findings are by judges, in pre-trial hearings to suppress physical evidence or statements, the primary means to diffuse a case short of nuclear war. Lose the hearings and there will be no trial. The judge is your only hope, as you will never see a jury. Not that juries are any better or different, despite the myriad tips for selection. Twelve ordinary people (or thirteen on occasion) possess no greater magic than one robed person, with or without bowtie.
It’s rare to have someone who has sat on the big bench admit that his decisions, one of the most critical links in the chain of judicial reasoning, lacks any real reason at all. Lawprofs teach law students that judges make decisions based on reason. Lawyers tell clients that judges make decisions based on reason. But Judge Satter admits that such credibility decisions are made for no good reason at all. It’s hard to face a client facing a lifetime in prison and explain that it’s a wonderful system, but for its weakest link.
We could say that it reduces the system to some buttoned up form of voodoo, but it doesn’t. The fact is that the judge will find the police officer credible, discounting the tailored testimony around the edges since everyone expect that anyway, as to the core of the crime. Police officer, with nice going-to-court uniform and ribbons on his chest, versus scruffy, inarticulate defendant with rap sheet for pot and maybe some coke, no real job and even less education. Officer wins, unless he screws something up royally. They’re trained not to do that, though some are so arrogant that they still blow it. But not too often.
The judge is the weakest link. The defendant goes to prison for it. And this is the best system we can come up with.
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Theoretically, you would think that if in a given criminal case the determination of guilt came down merely to the credibility of a sole police officer vs. that of a defendant (assuming he’s not a proven liar, even if he might be “scruffy” and have some victimless “crimes” under his belt), then the judge should pretty much automatically find reasonable doubt. For a judge to admit that he or the jury he’s presiding over has sent people away on the basis of a “guess” as to their credibility, while it may be a salutary revelation about the flaws in our process, is no more noble than the admissions of a guilty defendant in a guilty plea colloquy. In this respect, the flaw in the process lies with the judge himself who makes such guesses (or who allows a jury verdict based on such a guess to stand), and this flaw is by no means necessary to the system. Didn’t even the old Jewish law require more than one witness for a criminal conviction?
When one thinks about rape cases, which sometimes rely solely on the testimony of the alleged victim versus that of the defendant, one almost might think that our criminal system took a wrong turn by going with our current all-or-nothing approach. How difficult it must be for a jury to acquit a defendant of rape who it is say 90% sure is guilty (which shouldn’t amount to being “persuaded beyond a reasonable doubt”). I’m guessing that in most or many such cases (of 90% certainty) the jury would find the defendant guilty. What if there was another option besides flat-out “guilty” or “not guilty,” something involving some kind of probation and active monitoring or other measures designed solely to serve the public interest in public safety and rehabilitation rather than punishment? This might be cold comfort to a real victim, but it would be better than an outright acquittal.
Granted, from a criminal defense perspective the concern would be that defendants who might otherwise go free might be convicted of being “probably guilty,” but again, this would be better than a merely “probably guilty” defendant being found “guilty beyond a reasonable doubt” with all the punitive consequences that that entails.
The judge is an important link in the chain, but to call the judge the weakest link suggests that judges have no training, or ability, or concern for the fates of those appearing before them. Yes, the judge is called upon to assure due process and make judgments based upon the best information available to them at the time and place of their judgment, whether pretrial, during trial or post trial. Oftentimes the judge’s judgment is the final judgment. As shown in your post, the judge knows this. Do judges guess? Of course, as do jurors and lawyers. The judge’s goal is to insure that all of the actors in this play are making the best possible guesses based upon the best information available under the written and unwritten rules of due process and burdens of proof and fairness. No, judges don’t always make the right call, but I think you will agree that most of the time they get it right. They get it right far more often than would be expected in a world governed by pure guesswork. The judge is an important link in the best system we can come up with, but not the weakest link.
When we’re talking about judges as finders of fact, assessors of credibility (which is what the post addresses), it has nothing to do with training, ability or concern. They have no training in determining who is credible and who is not, as there is no training to be had. They have no special ability to make the determination. They may well be concerned, but that doesn’t help judges to distinguish truth from falsity. So yes, they are without a doubt the weakest link. The rest has nothing to do with the point here and strikes me as exceptionally naive.
Having served only as a temporary small claims and traffic court judge, I probably don’t even appear on the radar of the judging of which you speak. I have, however, tried to do my best in my finding of fact and assessing of credibility in the hundreds of cases I have tried over the past 14 years, because it is important to me and those who appear before me that I take my job seriously.
Aside from my 25 years in criminal defense, I’ve served as a pro bono arbitrator in Manhattan small claims since 1989 (I believe) and have tried probably 1500 cases there. Of course you try to do your best, but the issue isn’t good intentions but reality. If you think you (or I or anyone else) has the magic ability to discern truth from falsity, despite our best intentions, you’re kidding yourself. Of course we try. But the hard cold truth is it’s no more than a guess. There is no magic way to tell.
Agreed; definitely not magic.
“Do what you can, with what you have, where you are.”
Theodore Roosevelt
Most judges honorably strive for justice. Some don’t.
[Ed. Note: Balance of post deleted as inappropriate attack and off topic.]
Susan,
While I appreciate your reading and commenting, this isn’t a public soapbox to either promote your own agenda or excoriate those you don’t like. Want to tell your own stories of truth and justice? Want to go after people? Start your own blawg, but not here.