Reducing Judicial Crime-Severity Bias In Motion Decision-making

It will come as no surprise that judges are not automatons, oblivious to emotion or extraneous information when making decisions.  To the contrary, the literature is  filled with examples, such as the increase in sentences (particularly for black youth) if the judge’s football team lost the previous weekend.

So one question is whether judges can be shielded from information that might distort decision-making.  For example, should a judge know how important an item of evidence is to the prosecution case before deciding whether police conduct violated the Constitution and the evidence should be suppressed?  Will knowing the weight of the evidence distort the ‘balls and strikes’ call of whether there was a violation of the Fourth Amendment?

Consider this research, using lay persons instructed on how to judge:

research showed that when lay participants acting as judges were faced with pivotal but illegally obtained evidence of a morally repugnant crime that triggered a strong motivation to punish (selling heroin to high school students), they tended to construe discovery of the evidence as “inevitable,” which enabled them to recommend that the “tainted” evidence be admitted under the legal exception. By contrast, when an identical illegal police search uncovered evidence of a less egregious crime (unlawfully selling marijuana to cancer patients), participants were over three times more likely to suppress the challenged evidence, construing the search as calling for application of the exclusionary rule without exception. This difference in suppression outcomes between the two cases appeared to be mediated by the decisionmakers’ perceptions of the defendant as more immoral and deserving of punishment in the heroin condition than in the marijuana condition.


Can this be automatically extrapolated to law-trained judges?  The answer is “probably.”  There is no reason to suspect that judges, albeit being trained in the law, won’t be moved in at least some instances by extraneous matter – the seriousness of the crime, the risk to successful prosecution if the evidence is excluded.  What can’t be said without extensive testing of judges is the matter of degree.

Accepting that this is a risk, what method(s) may be implemented to reduce it and ensure that as much objectivity as is possible can be applied in deciding whether to admit or exclude evidence? Professor Sood begins with education.  “At the most basic level, simply raising judicial awareness by informing judges of research on decision-making points shown to be vulnerable to cognitive biases may help them guard against these effects in their own legal judgments.”

Whether this will have a lasting effect cannot be said (and is difficult to test).  So on a more functional level I suggest two mechanisms.

The first, and more simple, is to preclude the judge from learning what was seized.  At any motion to suppress, the parties will be limited to describing the characteristic/category of what is sought to be excluded – a statement to police, physical evidence from a car’s trunk – without detailing specifics.  A judge won’t know, in the case of physical evidence, whether it was a tie that matched what the perpetrator wore or the bloody knife.  This will provide moderate insulation against biasing.  This may not work in all cases, as in some instances knowledge of what was seized may be necessary to assessing whether the seizure complied with the Fourth Amendment, but it is a start.

A second, and more complex approach, is to have a judge who will not know the charges hear pre-trial motions.  This impacts resources in the judiciary and has substantial limitations – the judge will still likely know if the prosecutor is from the homicide unit or the minor felony unit.

Each of these concepts is a form of “blinding,” removing information that might bias or sway a decision-maker.   It has been recommended for prosecutors – decide what charge(s) to bring without knowing the race of the defendant.  Sah, Robertson and Baughman, Blinding prosecutors to defendants’ race: A policy proposal to reduce unconscious bias in the criminal justice system (2016).

There is no apparent barrier to a judicial system considering the same.  This will be incredibly difficult for an individual lawyer, as a motion to ‘blind’ the judge runs the risk of affronting the very person charged with deciding the case.  So it may be that Professor Sood’s call for education is the first step, to be followed thereafter [perhaps] by a meeting between the criminal justice Bar and and the court to explore system-wide reforms.  In the meantime, however, beware the impact of decision-irrelevant information; as much as a lawyer’s skill, it may be driving the suppression decision.