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Law Bulletin: Can a judge not know what he knows?

Law Bulletin columnist

Published: June 4, 2018

Evidence not admissible at trial may already have come to the attention of the judge trying the case.

Pretrial conferences, motions to dismiss, motions for summary judgment and discovery all contain facts for the trial. Once the judge has reviewed the pretrial activities, he will have heard some evidence that may be inadmissible.

The question: Will he be able to ignore the inadmissible evidence he heard at pretrial activities?

An impressive study including judges and psychologists found the answer is, probably not. Included in the study were Andrew J. Wistrich, magistrate judge at the U.S. District Court for the Central District of California; Chris Guthrie, associate dean for academic affairs and professor of law at Vanderbilt University Law School; and Jeffrey Rachlinski, professor of law at Cornell University. (“Can judges ignore inadmissible information: The difficulty of deliberately disregarding,” University Of Pennsylvania Law Review.)

When the case goes to trial, the judge will rule on admission of evidence which was disputed in the pretrial activities. His obligation is to rule with reference to the facts. Assuming the defendant makes an objection to the evidence, the court must rule based on admissible facts. Assuming that some of the facts are inadmissible, will the judge be able to ignore those facts in making his decision?

To find an answer, the authors conducted a social science experiment with judges from different parts of the country. The judges were then given factual situations that would raise the issue of ignoring inadmissible evidence. They found as follows:

“The results of our studies show that judges frequently cannot ‘close the valves of their attention.’ The presumption that people can ignore what they know, or use it for some purposes but not for other purposes, may sometimes be true but often is little more than a convenient fiction. This may mean that judicial decision-making is not as accurate as we hope it is.”

Based on responses to seven scenarios that simulate decisions judges make, the researchers found that some types of highly relevant but inadmissible evidence influenced the judges’ decisions. They also found, however, that judges were able to resist the influence of such information in at least some cases, namely those directly implicating constitutional rights.

Assuming that the judge believes he can ignore information against the defendant which came out in the pretrial conference, he need not recuse himself. However, the judge is also aware that more than 70 percent of judges assume that inadmissible information has not prejudiced their decisions.

The experiment described relies heavily on psychological research. That is not surprising as there has been a substantial upturn in using psychological principles in the practice of law. In addition, Justice Benjamin N. Cardozo anticipated this about 100 years ago:

“I have spoken of the forces of which judges avowedly avail to shape the form and content of their judgments. Even these forces are seldom fully in consciousness. They lie so near the surface, however, that their existence and influence are not likely to be disclaimed.

“But the subject is not exhausted with the recognition of their power. Deep below consciousness are other forces, the likes and dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man, whether he be litigant or judge.” (“The Nature of the Judicial Process,” (1921), page 167.)

William A. Allison is a recently retired trial lawyer in Bloomington, Ill.