Trial Judges as Decision Makers

Unfortunately, Kalven and Zeisel's monumental study has not been replicated, and changes in the composition of juries in the United States (cf. Hans and Vidmar, 1991) may have lowered the degree of agreement between these two types of decision-makers. Yet the initial process of decision-making between trial judges and individual jurors may be similar: the construction of story-like representations of actions by, for example, a defendant and then an assessment of the reasons for these actions. Communication theorists Bennett and Feldman (1981, p. 5) described stories as 'systematic means of storing, bringing up to date, rearranging, comparing, testing, and interpreting available information about social behavior'. When questioning a female defendant in order to establish a motive for running away from the crime scene, for instance, the prosecuting attorney may try to form a story in the mind of the fact finder (whether judge or jury) by saying, 'Isn't it true... the reason you gave your purse to D_[before the crime] was because you wouldn't be burdened down with it when you ran?' (Bennett, 1979, p. 316).

Social psychologists Nancy Pennington, Reid Hastie, and Steven Penrod (Pennington, 1981; Hastie, Penrod and Pennington, 1983; Pennington and Hastie, 1986, 1988) provided a formal delineation of the story model, by showing that fact finders (in their studies, actual jurors) inferred events as well as actors' mental states and motivations in order to fill in gaps in the trial testimony, thus creating a complete story. They found that stories people create do influence their verdict choices rather than the opposite; that is, fact finders are not always 'locked in' to an outcome before hearing the evidence (Pennington and Hastie, 1988).

Trial judges, as human beings, reflect their own past experiences, assumptions, and biases, when 'filling in the gaps' and forming a story to explain a defendant's actions. It is true that trial judges have only rarely been placed in experimental situations as subjects of psychological research. What we do know from a limited number of studies is that judges, like jurors, may have widely differing verdicts in response to identical information. Austin and Williams (1977) asked district court judges (i.e. trial judges) in the state of Virginia to respond to the same hypothetical cases by recommending a verdict and sentence. In the case involving the charge of possession of marijuana by a minor, 29 of the judges concluded the defendant was not guilty and 18 concluded that she was guilty. The sentences given by the latter 18 judges ranged from probation (eight judges) to a fine, to a jail term (three judges).

When there is latitude in the punishments that judges can give, their personal characteristics may influence their decisions. They may have prejudices against certain groups_racial minorities, homosexual persons, war resisters_that affect the way they process evidence as well as the type of punishment they assign. Judges who have been prosecutors may maintain their sympathy with the state's evidence in a criminal trial. In the United States, judges' political philosophy was found, in one study, to be highly related to their sentencing behavior (Nagel, 1962).

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