Law in Contemporary Society

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. Frank writes that very subjective, personal criteria, such as a judge’s values, biases, personal experiences, or the unconscious, guide how a judge perceives 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 determine to be the facts. This is not just the case with judges; when the fact-finder is a jury, the problem of personal biases and unconscious motivations is multiplied twelve-fold. One could argue that being in a group of people will force the pruning of opinions that are too idiosyncratic and therefore alleviate the problem of too-subjective fact determination. However, whether the fact-finder is a judge or a group of jurors, another element that exerts a strong influence on the way people interpret the facts still comes into play: the social community from which the fact-finder came. Even with similar facts, a case presented before fact-finders of a more liberal community can be decided very differently than a case presented before fact-finders of a more conservative community. Because of such a situation, although participants in the judicial system can think that the practice of law is a science which leads to sound prediction of future cases, such a belief is false. 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 [fact-finder] thinks they are.” Thus, judicial decisions vary depending on how the fact-finder 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 trial court decisions. Thus, 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 situation where two fact-finders can find the facts to be very dissimilar for different but similar cases? Could we at least try and 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. I say that videotapes are more impartial than human eyewitnesses because, although limited in only showing one point-of-view, they at least allow the fact-finder to experience some of the facts of a case in a manner that is, arguably, more unfiltered than through the verbal representations of witnesses. There is still ambiguity surrounding facts shown on videotape but at least they will be processed only once (through the interpretation of the fact-finder) rather than twice (through the interpretation of the eyewitness and then through the interpretation of the fact-finder). However, that is not to say that videotaped evidence will lead to the same interpretation of that evidence. A case like Scott v. Harris demonstrates that even with videotapes, people can differ in their understanding of what exactly happened in the situation at the heart of the litigation (the judges at the Court of Appeals level thought that the motorist did not post that much threat to other motorists; a majority of the Supreme Court disagreed). The powers of people's value systems and unconscious are strong, pervasive, and lead their humans to what they believe to be the “right” answer.

Jieun, how can this be the best response to my question last time about the "more objective" nature of video? For the reader, who is coming to the piece for the first time, this is a disruptive digression, taking the reader's attention away from the main questions seemingly for little value. Why are you trying to justify an example? Had the problem lain only in the example, the simple thing to do would be to pick another.

But the problem isn't in the single example. It lies in the idea of "objective evidence." This is a metaphor, and a dangerous one, because it leads us to believe that evidence, without mediating interpretation, somehow by itself proves things. That's not how social processes of any kind work, including "science" as well as "litigation." Video isn't the only kind of evidence that never standing alone proves anything, "objectively." Video is in that respect like all other evidence, all the time. Proof is a social process, not a mathematical one, in social contexts, right?

The idea of "objective fact-finding" is as unreal as the idea of "objective evidence." Frank is not less smart than you are: he understands your line of thinking, and he has responded to it in ways you haven't responded to yourself. He says, in effect:

Witnesses A and B give flatly conflicting testimony on a dispositive issue, after protracted and skilful cross-examination. On the determination of their credibility everything else hangs. What do you mean you want "objective fact-finding"? There isn't any way to determine who is telling the truth. Are you going to have more judges vote in order to get an "objective" determination? You get a judgment, but the idea of an objective measurement of credibility is nonsense. The facts are ultimately determined by guesswork, by art, not objectively. That's a fact.
You can't just ignore this and talk about what's happening as though it were some sort of mistake in the American judicial system that you can fix. Frank is talking about something inherent in the nature of human social process, which no system of adjudication can change.

What I propose is that the judicial system should implement mechanisms that can minimize the impact of one person’s subjectivity. For example, for non-jury cases, what about the idea of allowing more than one judge to decide trial courts? Mandating several judges for appellate courts and only one judge for trial courts implies that it is more important to answer legal questions accurately than to find facts accurately, when really they should be both equally important. Another potential solution might be to have judges and juries participate in training sessions that test and reveal hidden biases. One could show them by video various versions of the same fact pattern so that the things that happen in them are all the same but the actors for each video differ in age, ethnicity, sex, etc. Then one could ask them, or at least have them privately contemplate, whether or not their interpretations for each video differed according to the actors' physical characteristics.


One could argue that fact-finding is only one element out of many that contribute to the less-than-standardized nature of judicial decisions. For example, the quality of legal representation can also play an important role in resulting in dissimilar verdicts. The defendant for one case has a lawyer who can devote more time to her client than the defendant in another case whose attorney's time and energy are stretched thin among numerous clients. However, it is because other elements can play such a significant role in fueling unpredictability in judicial decisions that I emphasize the need for fact-interpretation that is, if not impartial, then at least as standardized as possible.

On this issue, too, we need some further consideration. How did "as standardized as possible" become an objective of our system? Western thinking has recognized that standardization causes injustice at least since Aristotle. That's what the concept of equity addresses in Western legal theory.

You might want to consider, also, the intersection between these two issues. When standardization is actually regarded as the objective of the adjudication process, the problem of credibility will be resolved in one or another fashion that removes the non-standard, individual basis of the credibility determination. The most common of the solutions is torture, which produces standard, uniform, objective evidence.


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r5 - 22 Jan 2013 - 20:10:32 - IanSullivan
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