Dateline: August, 2021, Issue 1

Do judges set aside a defendant's history and character when determining guilt?

The biography and character of a criminal defendant are legally irrelevant factors in the determination of guilt, particularly the definition of a crime. While jurors' attributions of blame often consider a criminal defendant's history and character, judges are expected and trained to decide guilt according to the facts and the law, and to ignore legally irrelevant factors such as sympathy.

Spamann and Klöhn (2016) examined the effect of legally relevant and irrelevant factors as determinants of judicial decisions. Thirty-five U.S. federal judges were provided a full set of legal briefs and case materials based on an actual appeals case. The focus of the briefs was a precedent that either weakly favored or weakly disfavored a criminal defendant's position, with half of the judges receiving briefs with the precedent weakly favoring the defendant's position and the other half receiving briefs with the precedent weakly disfavoring the defendant's position. The case materials described the defendant and other case facts. Half of the judges receiving each precedent received case materials describing the defendant as nationalist and hateful; the other half received case materials describing the defendant as conciliatory and regretful. The judges reviewed the provided legal briefs and case materials and rendered a decision with written reasons.

As might be expected, judges' written reasons focused on the precedent and other legalistic and policy considerations. Judges did not mention defendant characteristics except one time for one characteristic (remorse) and then only to dismiss it as legally irrelevant.

Despite the focus of the judges' written reasons being the precedent, the nature of the precedent was unrelated to the judges' decisions. Judges' decisions when the precedent weakly favored the defendant were no different than judges' decisions when the precedent weakly disfavored the defendant.

By contrast, the defendant's background and character had a large effect on judges' decisions. Judges with case materials describing a nationalist and hateful defendant upheld the conviction 87% of the time. Judges with case materials describing a conciliatory and regretful defendant upheld the confiction 41% of the time. The unsympathetic defendant's conviction was upheld at more than twice the rate as the sympathetic defendent's conviction.

Judges followed the provided precedent selectively, which depended greatly on the defendant's background and character. Judges were significantly more likely to follow the precedent when the precedent was consistent with the background and character of the defendant (followed precedent 75% of the time) than when it was inconsistent (followed precedent 33% of the time). Said differently, judges were more likely to follow the precedent when it helped the sympathetic defendant or hurt the unsympathetic defendant.

The researchers conclude that judges' written reasons for their decisions followed the standard legal model by not assigning relevance to factors that are legally irrelevant. Nonetheless, legally irrelevant defendant characteristics had a strong effect on judicial determinations of guilt and a legally relevant weak precedent was followed only when it was consistent with legally irrelevant defendant characteristics.

Source Spamann, H. & Klöhn (2016). Justice is less blind, and less legalistic, than we thought: Evidence from an experiment with real judges. The Journal of Legal Studies, 45(2), pp. 255-280.