Limiting the Subjective

-- By JieunPaik - 16 Feb 2012

Law as a Science

In Courts on Trial: Myth and Reality in American Justice, Jerome Frank writes about the subjective nature of the fact-finding process at the trial court stage. When a trial judge is presented with contradictory testimonies regarding the facts of a case, what kind of standard does she apply in order to ascertain which of the testimonies is accurate? Frank writes that very subjective, personal criteria, such as a judge’s values, biases, personal experiences, or the unconscious, guide how she determines the facts of a case to be so that what one judge determines to be the facts of the case can differ greatly from what another judge determine to be the facts. Because of such a situation, although many participants in the judicial system think that the practice of law is a science in which erudite knowledge of the “crisp and definite” legal rules will lead to sound prediction of how a judge will rule in future cases, such prediction cannot be had. This “law as a science” conception is founded upon the belief that facts, on which the legal rules are applied, are definite, impartial and lay out the stark contours of the reality which gave rise to the case. However, “facts are what the judge think they are.” Thus, the judicial decisions vary depending on how the judge understands the facts to be.

Frank criticizes the way in which participants in the legal process fool themselves into thinking that law is predictable and, thus, dependable. He urges one to see the practice of law as less a science and more as an art, by which I understood him to mean as a very human activity in which the personal natures of both counsels and judges shape the outcome of the case. He says that one should acknowledge the imbedded subjectivity of fact-finding and the corresponding unpredictable nature of the trial court decisions.

I agree with Frank in saying it is important to realize that the ability to predict judicial decisions is a myth. It is really interesting to see how other aspects of modern society are viewed and understood to be imperfect and yet the legal system is still cloaked in mythic idealism. For example, people understand that politics, no matter how wide the smiles of the politicians, will be contentious and partisan. Yet it seems as if fewer people are willing to admit that similar attributes characterize the judicial system as well, fueled by the subjectivity of its participants. So what are we going to do about this situation? If the goal of the judicial system is to decide accurately who is right and who is wrong and to what degree, what are we going to do about the fact that two fact-finders can find the facts to be very different for the same case? Could we at least make the fact-finding process be more objective?

How to Make Facts More Objective

To a degree, yes. Perhaps the utilization of more impartial methods of fact-gathering can limit the subjective element. However, I do not know how effective that would be. Just because one allows a mode of witnessing (such as videotapes) that is more impartial in its account than those of eyewitnesses does not mean that it can effectively overcome the subjective element. There will still be subjective interpretation of that objective material. The value systems, biases, and the unconscious of the fact-finders are strong and pervasive; they can prevail against even the biggest rational obstacle in their path and lead their humans to what they believe to be the “right” answer.

What I propose is that the judicial system should implement procedural mechanisms that can minimize the impact of one person’s subjectivity. For example, what about the idea of allowing an appellate court to have a much less deferential standard of review for the facts found by the lower court, especially if done by a trial judge and not a jury? Such a mechanism can act as a safety net and allow factual errors to be more effectively rectified. What about the idea of allowing more than one judge to decide trial courts? The implication behind mandating more than one judge for appellate courts and only one judge for trial courts seems to be to stress the importance of the accurate answering of legal questions; however, it seems to me that the ability to find the facts as accurately as possible is just as important as the ability to apply the correct legal rule in deciding which party gets a victory in the courtroom. Of course, in discussing these procedural possibilities I have not taken into account practical concerns, such as judicial efficiency. The goal is to generate ideas that could further and strengthen the process of accurate fact-finding. Assuming that having more than one perspective about a situation can allow for a fuller and more complete vision and understanding, these ways can hopefully limit the occurrences of critical factual errors.

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