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"Smart people (like smart lawyers) can come up with very good explanations for mistaken points of view."

- Richard P. Feynman, Physicist

"There is a danger in clarity, the danger of over looking the subtleties of truth."

-Alfred North Whitehead

May 9, 2011

Judges May Not Be Able to Close the Valves of Their Attention

Emily Dickinson believed that the soul is able to “Close the valves of her attention like stone.” Is this ability limited to the ethereal world, or do judges also have this ability? As discussed in the last entry, the research shows that jurors find it difficult putting inadmissible information out of their minds when deliberating on a verdict. What does the research say about judges’ ability to do this?

Researchers examined this question by testing a group of judges with a series of questions.[i] The first scenario looked at the effect of judge’s exposure to settlement discussions on their ultimate award of damages. One group of judges learned that the plaintiff is requesting $175,000 in damages. Another group of judges learned that the plaintiff is requesting $10 million in damages. Each group of judges is paired with another group that is not involved in the settlement discussions. Judges are warned not to use the information gleaned from the settlement discussions in their ultimate determination of damages.

The group of judges that are exposed to the $175,000 anchor (see Anchoring and Adjustment ) awarded damages averaging $612,000 compared to $1.4 million for the group of judges who were not exposed to the anchor. The group of judges that are exposed to the $10-million anchor awarded damages averaging $2.2 million compared to $808,000 for the group of judges who were not exposed to the anchor. The differences were statistically significant. The judges were not able to disregard the information they learned from the settlement discussions.

The second scenario involved judges deciding a contract dispute. Half of the judges had to rule on a discovery dispute involving the attorney/client privilege which included an in camera examination of a letter between the plaintiff and his/her attorney. The letter greatly weakened the case for the plaintiff. For the control group of judges, who were not exposed to the letter, 55.6% ruled for the plaintiff. Only 29.2% of the judges who were exposed to the letter and found it privileged, found for the plaintiff. Of the judges who were exposed to the letter and did not find it privileged (and therefore could consider it as evidence) only 25% found for the plaintiff. The 29.2% and the 25% were not statistically significant from each other. Again, it appears that judges were not able to put the privileged materials out of their minds when deciding the case.

The third scenario involved a court trial of a criminal sexual assault charge. The issue was consent. One set of judges had to rule on a pretrial motion in limine regarding the complaining witness’s prior sexual history for being promiscuous. The controls were not exposed to this information regarding the complaining witness. About 49% of the judges who had not been exposed to the information, found the defendant guilty, whereas 20% of the judges who had been exposed to the information about the victim and who had found it inadmissible, found the defendant guilty. (Only 7.7% of the judges who were exposed to the information and found it admissible convicted the defendant. However, because of the small sample size it was not significantly different from 20 %.) Again, it appeared that judges, on the average, could not keep the inadmissible evidence out of their decision making process.

The fourth scenario involved judges again making a determination of damages in a personal injury case. One set of judges were told that the plaintiff had a prior conviction involving swindling elderly people out of their life savings in an investment scheme. This was inadmissible evidence. Those judges, who learned of the plaintiff’s conviction, awarded 12% less than the judges who didn’t learn of this information. The difference was marginally statistically significant. Judges did not appear to be as affected by this information in this decision.

The fifth scenario involves sentencing a defendant. Some condemning information was received from the defendant through a cooperation agreement. The information was ruled inadmissible. The set of judges who were not exposed to this information sentenced the defendant to 78 months in prison. The judges who were exposed to the information, and had found the condemning information inadmissible, sentenced the defendant to an average of 85.9 months in prison. Again, it appears that the prohibited information was used in the judicial decision.

The sixth scenario involved one group of judges making a decision on whether or not to find probable cause for a search warrant, and the other group of judges having to make the same decision, but this time during a suppression motion evaluating the same facts after the police did the search and found a large amount of drugs. (The police had clear authority to search without a warrant under the circumstances of the scenario, provided they had probable cause.) About 24% of the judges would have issued the warrant, and about 28% would have found probable cause at the suppression hearing. The differences were not statistically significant. Judges appeared to be able to keep the fact that drugs were found, which is not relevant to the inquiry, out of their minds.

The seventh scenario involved judges again deciding the guilt of a defendant. One set of judges heard a suppression motion on a statement of the defendant where he confessed to the crime. The statement was inadmissibly obtained and suppressed by the court. Of the judges that did not hear the suppressed evidence, 17.7% of the judges convicted the defendant. Of the judges who had heard the suppression motion, 20.7% of the judges convicted the defendant. Again, these two conviction rates were not statistically significant from each other. Again, judges appear to have been able to keep the inadmissible information from affecting their decision.

This research casts some doubt on whether or not judges have the ability to “close the valves of their attention like stone”. It appears that this closure, under many scenarios, is more like cotton cloth than stone.



[i] Wistrich, Andrew J., Guthrie, Chris, and Rachilinski, (2005), Can judges ignore inadmissible information? The difficulty of deliberately disregarding, University of Pennsylvania Law Review, Vol. 153, pp 1251-1345.

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

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