Waye, Vicki --- "Judicial Fact-Finding: Trial by Judge Alone in Serious Criminal Cases" [2003] MelbULawRw 16; (2003) 27(2) Melbourne University Law Review 423
[*] LLB, LLM (Adel), GDLP (SA); Senior Lecturer, Faculty of Law, The University of Adelaide. The author would like to thank all those at the Law School, University of Oregon who provided hospitality and assisted her during her sabbatical in 2001. In addition, the author would like to sincerely thank all the members of the Circuit Court in Eugene, Oregon and the members of the District Court and Supreme Court in South Australia who participated in the survey discussed in this article.
[1] Harry Kalven Jr and Hans Zeisel, The American Jury (1966); John Baldwin and Michael McConville, Jury Trials (1979); Kevin Clermont and Theodore Eisenberg, ‘Trial by Jury or Judge: Transcending Empiricism’ (1992) 77 Cornell Law Review 1124; John Jackson and Sean Doran, Judge without Jury: Diplock Trials in the Adversary System (1995); Reid Hastie and W Kip Viscusi, ‘What Juries Can’t Do Well: The Jury’s Performance as a Risk Manager’ (1998) 40 Arizona Law Review 901; Richard Lempert, ‘Why do Juries Get a Bum Rap? Reflections on the Work of Valerie Hans’ (1998) 48 DePaul Law Review 453; Neil Vidmar, ‘The Performance of the American Civil Jury: An Empirical Perspective’ (1998) 40 Arizona Law Review 849; Rosselle Wissler, Allen Hart and Michael Saks, ‘Decisionmaking about General Damages: A Comparison of Jurors, Judges, and Lawyers’ (1999) 98 Michigan Law Review 751; Shari Seidman Diamond and Neil Vidmar, ‘Jury Room Ruminations on Forbidden Topics’ (2001) 87 Virginia Law Review 1857; Jury Research Institute, Jury Deliberations: What Goes on behind Closed Doors (2002) <http://www.jri-inc.com/article3.htm> .
[2] Jackson and Doran, Judge without Jury, above n 1, 223.
[3] As to the United States, see Federal Rules of Criminal Procedure r 23(c). As to Australia, see Fleming v The Queen (1998) 197 CLR 250; R v Keyte (2000) 78 SASR 68; R v Murphy [2000] NSWCCA 297 (Unreported, Spigelman CJ, Grove and Kirby JJ, 23 August 2000); Criminal Code (WA) s 651B(2); Criminal Procedure Act 1986 (NSW) s 133(2); Supreme Court Act 1933 (ACT) s 68C(2).
[4] See Criminal Procedure Act 1986 (NSW) s 132(4); Supreme Court Act 1933 (ACT) s 68B(1)(c); Criminal Code (WA) s 651A(4).
[5] [1930] USSC 74; 281 US 276 (1930).
[6] Constitution of Oregon art 1, § 11.
[7] Australian Constitution s 80.
[8] Brown v The Queen [1986] HCA 11; (1986) 160 CLR 171.
[9] Juries Act 1927 (SA) s 7.
[10] Criminal Procedure Act 1986 (NSW) s 132.
[11] Supreme Court Act 1933 (ACT) s 68B.
[12] Criminal Code (WA) s 651A–C.
[13] Juries Act 1927 (SA) s 7(1)(b).
[14] Criminal Procedure Act 1986 (NSW) s 132(1)(b).
[15] Supreme Court Act 1933 (ACT) s 68B(1)(b).
[16] Gerald Robin, Introduction to the Criminal Justice System (3rd ed, 1987) 186.
[17] State v Baker, 976 P 2d 1132 (Or, 1999).
[18] Kalven and Zeisel, above n 1, 24–30. See also Orville Richardson, ‘Jury or Bench Trial? Considerations’ (1983) 19(9) Trial 58.
[19] For example, in Wisconsin and Connecticut, defendants chose to proceed by judge alone in 75 per cent of cases, whereas in Montana and the District of Columbia, trial by jury was hardly ever waived. More recent figures outlining regional variations in the United States are set out in Sean Doran, John Jackson and Michael Seigel, ‘Rethinking Adversariness in Nonjury Criminal Trials’ (1995) 23 American Journal of Criminal Law 1, 8–11. Similar regional variations have also been observed in Canada: see Lee Stuesser, ‘Lawyers Judge the Jury’ (1990) 19 Manitoba Law Journal 52, 62–3.
[20] Based on records supplied by Laura Ritenour, Administrative Analyst, Oregon Circuit Court, Eugene, Oregon (copy on file with author).
[21] Based on records at the Criminal Registry, South Australian District and Supreme Courts, (summary on file with author). This figure accords with New South Wales Bureau of Crime Statistics and Research data on New South Wales, where the accused may also elect to proceed by judge alone (copy on file with author).
[22] See also Stephen Schulhofer, ‘Is Plea Bargaining Inevitable?’ (1984) 97 Harvard Law Review 1037, 1062–4, associating high bench trial rates with the willingness of local trial judges to give discounted sentences in exchange for jury waiver.
[23] Paradoxically, sexual assault cases which turn on issues of consent or identity are also considered ideal fact-finding cases for a jury: Stuesser, above n 19, 74. Stuesser noted that where there were no aggravating factors, such as use of violence or multiple assailants, Canadian lawyers tended to advise clients to opt for a jury trial: at 74.
[24] Statistics on file with author. An earlier study also found that trials involving sexual assaults comprised a majority of the cases heard by judge alone: Carolyn Harrison, ‘Redefining Justice?: Trial by Judge Alone’ (unpublished paper, undated) (copy on file with author).
[25] Kalven and Ziesel, above n 1, 24; Justice J Badgery-Parker, ‘The Criminal Process in Transition: Balancing Principle and Pragmatism — Part II’ (1995) 4 Journal of Judicial Administration 193, 198.
[26] Kalven and Ziesel, above n 1, 24; John Willis, ‘Trial by Judge Alone’ (1998) 7 Journal of Judicial Administration 144, 153–4.
[27] New South Wales Law Reform Commission, Criminal Procedure: The Jury in the Criminal Trial, Report No 48 (1986) 101; Law Reform Commission of Western Australia, Review of the Civil and Criminal Justice System in Western Australia, Report No 92 (1999) 257–60.
[29] See, eg, Stuesser, above n 19, 72.
[30] Criminal Law Consolidation Act 1935 (SA) s 352(1)(ab).
[31] Criminal Law Consolidation Act 1935 (SA) s 352(1)(a)(iii).
[32] OR REV STAT § 138.060(2) (2001).
[33] Stuesser, above n 19, 72.
[34] See below Part VIII.
[35] OR REV STAT § 3.050 (2001).
[36] OR REV STAT § 3.041 (2001).
[37] James Crawford, Australian Courts of Law (3rd ed, 1993) 61.
[38] Constitution Act 1934 (SA) s 74.
[39] Constitution Act 1934 (SA) s 75.
[40] District Court Act 1991 (SA) s 16; Supreme Court Act 1935 (SA) s 13A.
[41] Robert Thomson, The Judges (1987) 41. See also Enid Campbell and H P Lee, The Australian Judiciary (2001) 283.
[43] Ibid 38–9.
[44] Sean Cooney, ‘Gender and Judicial Selection: Should There Be More Women on the Courts?’ [1993] MelbULawRw 2; (1993) 19 Melbourne University Law Review 20. See also Margaret Thornton, Dissonance and Distrust: Women in the Legal Profession (1996) 294; Campbell and Lee, above n 41, 25, 281.
[45] [1992] HCA 23; (1992) 175 CLR 1. This case established common law recognition of native title to land.
[46] [1995] HCA 20; (1995) 183 CLR 273. This case established that administrative decision-making was subject to Australian international treaty obligations.
[47] See, eg, Chief Justice David Malcolm, ‘The Garran Oration’ (2001) 60(3) Australian Journal of Public Administration 3.
[48] Greg Craven, ‘Judicial Activism in the High Court — A Response to John Toohey’ (1999) 28 University of Western Australia Law Review 214; Chief Justice Murray Gleeson, ‘Legal Oil and Political Vinegar’ [1999] LawIJV 176; (1999) 73(5) Law Institute Journal 50. The author, however, does not agree with the proposition that judges should be responsive to community attitudes. Judicial independence requires that judges apply the law freely and without fear or favour.
[49] John Braithwaite, ‘Economic Policy: What the Electorate Thinks’ in Jonathan Kelley and Clive Bean (eds), Australian Attitudes: Social and Political Analyses from the National Social Science Survey (1988) 26, 32.
[50] Courts Administration Authority of South Australia, Speakers <http://www.courts.sa.gov.au/
community/index.html>.
[51] Courts Administration Authority of South Australia, Ask the Judge <http://
www.courts.sa.gov.au>.
[52] Courts Administration Authority of South Australia, ‘Courts Consulting the Community’ (Press Release, 9 November 2000).
[53] All Eugene high school children learn about the role of the judiciary in ‘American Studies’, a subject within social studies.
[54] Kermit Hall, William Wiecek and Paul Finkelman, American Legal History: Cases and Materials (2nd ed, 1996) 574.
[55] Stuesser, above n 19, 53.
[56] Jill Hunter and Kathryn Cronin, Evidence, Advocacy and Ethical Practice: A Criminal Trial Commentary (1995) ch 2.
[57] Jackson and Doran, Judge without Jury, above n 1, ch 7. See also John Jackson and Sean Doran, ‘Conventional Trials in Unconventional Times: The Diplock Court Experience’ (1993) 4 Criminal Law Forum 503, 513.
[58] Social Science Data Analysis Network, Segregation: Neighborhood Exposure by Race, CensusScope <http://www.censusscope.org/us/s41/p23850/chart_exposure.html> .
[59] International Public Affairs Branch, Department of Foreign Affairs and Trade, Australian States: South Australia (1994).
[60] Ibid.
[61] Ibid.
[62] Frederic Reynold, The Judge as Lawmaker (1967); John Rawls, A Theory of Justice (revised ed, 1999); Ronald Dworkin, Taking Rights Seriously (1978) 14–80; Richard Ingleby and Richard Johnstone, ‘Judicial Decision Making’ in Rosemary Hunter, Richard Ingleby and Richard Johnstone (eds), Thinking about Law: Perspectives of the History, Philosophy and Sociology of the Law (1995) 174.
[63] Experience dictates otherwise: see, eg, T S Palys and Stan Divorski, ‘Judicial Decision-Making: An Examination of Sentencing Disparity among Canadian Provincial Court Judges’ in Dave Müller, Derek Blackman and Anthony Chapman (eds), Psychology and Law: Topics from an International Conference (1984) 333, 339. This study concludes that the great disparity observed in the sentencing decisions of Canadian judges was largely due to differences in values regarding deterrence and protection versus rehabilitation. See also Jorge Sobral Fernández, ‘An Enquiry into Judicial Decisions’ in Santiago Redondo et al (eds), Advances in Psychology and Law: International Contributions (1997) 227.
[64] See Lee Ann Fennell, ‘Between Monster and Machine: Rethinking the Judicial Function’ (1999) 51 South Carolina Law Review 183; Ronald Cass, ‘Judging: Norms and Incentives of Retrospective Decision-Making’ (1995) 75 Boston University Law Review 941.
[65] Law Book Company, Laws of Australia, vol 9 (at 23 July 2003) 9 Criminal Law Principles, ‘9.1 The Criminal Laws’ [251].
[66] See Bertram Malle and Joshua Knobe, ‘The Distinction between Desire and Intention: A Folk-Conceptual Analysis’ in Bertram Malle, Louis Moses and Dare Baldwin (eds), Intentions and Intentionality: Foundations of Social Cognition (2001) 45, 64.
[67] [1985] HCA 22; (1985) 156 CLR 464, 470 (Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ) (‘Crabbe’).
[68] Ibid.
[69] [1987] 1 Qd R 440, 464 (Dowsett J) (‘Watson’).
[70] Alfred Mele, ‘Acting Intentionally: Probing Folk Notions’ in Bertram Malle, Louis Moses and Dare Baldwin (eds), Intentions and Intentionality: Foundations of Social Cognition (2001) 27, 29–30.
[71] Kalven and Ziesel, above n 1, 63–4. See also Clermont and Eisenberg, above n 1, 1152–6; Marc Galanter, ‘The Civil Jury as Regulator of the Litigation Process’ [1990] University of Chicago Legal Forum 201, 204–5.
[72] Mark Findlay et al, Jury Management in New South Wales (1994) 8; Mark Findlay, Stephen Odgers and Stanley Yeo, Australian Criminal Justice (2nd ed, 1999) 152–3.
[73] Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System in Western Australia: Consultation Drafts (1999) 927.
[74] Penny Darbyshire, ‘The Lamp that Shows that Freedom Lives — Is It Worth the Candle?’ (1991) Criminal Law Review 742, 751. In a report prepared by the International Society for the Reform of Criminal Law, it was reported that juries would routinely fail to act upon ‘compelling police evidence’ in the English courts in the 1970s because of community views of police ‘verballing’ and ‘planting’: International Society for the Reform of Criminal Law, Jury Project Discussion Paper (2000) 15.
[75] See, eg, R v Young [1995] QB 324. In this case, the Court of Appeal received affidavit evidence from all 12 jurors that while housed overnight in a hotel during their deliberations, four of the jurors indulged in an ouija board seance to contact the deceased victim to find out whether the defendant was guilty of murder.
[76] See Duncan Kennedy, ‘Freedom and Constraint in Adjudication: A Critical Phenomenology’ (1986) 36 Journal of Legal Education 518 for an exposition of the relationship between the application of legal rules and the judge’s personal preferences.
[77] R v Winner (1995) 79 A Crim R 528, 534 (Kirby ACJ, Newman J, Barr AJ). Failure to give sufficient reasons amounts to an error of law: see, eg, R v Keyte (2000) 78 SASR 68; R v Green [2001] SASC 25; (2001) 78 SASR 463; R v McKenzie [2001] SASC 279 (Unreported, Olsson, Perry and Gray JJ, 31 August 2001).
[78] In areas of evolving common law, for example, there may be a number of conflicting precedents and no clearly identifiable legal principle.
[79] As a result of historical development, there may be no rule to apply to novel situations.
[80] The common law method generates rules on a case by case basis. The function of the judge in the common law system is to render justice, not to formulate a series of social norms. There is no mechanism for ensuring that legal rules comprise a set of systematic, synergistic and logically coherent body of norms: see René David and John Brierley, Major Legal Systems in the World Today: An Introduction to the Comparative Study of Law (3rd ed, 1985) 360–1. Rules with varying rationales commonly overlap and provide different remedies, for example, the intersection of contract, tort and trade practices law in many commercial cases.
[81] Legal rules are not individuated. To fulfil their function as useful limits and guides, legal rules must be generalised and open-ended: see William Twining and David Miers, How to Do Things with Rules (4th ed, 1999) 200–4. Consequently, the application of any legal rule to a proven fact situation must depend on the decision-maker’s judgment regarding the meaning of the rule and its fit to the situation. For example, a legal rule may prohibit being drunk in a public place. A decision-maker may be required to determine the following: is a driveway leading onto a road once it passes the footpath maintained by the local council a public place? Does having a blood alcohol level of .08 constitute being drunk? Does being drunk require the exhibition of certain behaviour? If so, what sort of behaviour?
[82] Our knowledge of past events is uncertain. The process of proof can only provide a limited understanding of past events because of the delay between the event and trial, the adversarial generation and presentation of evidence, and the courtroom setting and rules of evidence and procedure regarding how facts may be proven.
[83] Justice Michael Kirby, The Judges (1983) ch 5.
[84] Sandra Berns, To Speak as a Judge: Difference, Voice and Power (1999) 60–3.
[85] For example, if a witness testified that the gun used to kill the victim was a .22 rifle with a silencer, we would only be able to estimate vaguely the correctness of that statement by reference to the witness’s experience with guns, the distance between the witness and the gun, the witness’s veracity and so on. We would not be able to assign a probability to that evidence other than in the most general terms; it is more probable than not that the witness is telling the truth and is not mistaken, or it is highly probable or highly improbable that the witness is telling the truth and is not mistaken. See also Laurence Tribe, ‘Trial by Mathematics: Precision and Ritual in the Legal Process’ (1971) 84 Harvard Law Review 1329. Contra Michael Saks and Robert Kidd, ‘Human Information Processing and Adjudication: Trial by Heuristics’ (1980) 15 Law and Society Review 123, 123–60. The authors reject the notion that evidence is case-specific. They argue that most evidence is far more probabilistic than judges realise and that the veracity of evidence such as eyewitness testimony, fingerprints and so on can be accurately determined from base rate information rather than on a case-specific basis.
[86] Either the defendant can appeal against conviction or the prosecution can appeal against acquittal: Criminal Law Consolidation Act 1935 (SA) s 352.
[87] R v Hetherington (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, Nyland, Mohr and Debelle JJ, 24 August 1994). However, no reversal is available on the basis of credibility findings unless it was wrong in law for the trial judge to rely on credibility as the basis for the verdict: see, eg, State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588, 620–2 (Kirby J); Williams v Minister, Aboriginal Land Rights Act 1983 [1999] NSWSC 843; (1999) 25 Fam LR 86 (Supreme Court of New South Wales); Williams v Minister, Aboriginal Land Rights Act 1983 [2000] Aust Torts Reports 81-578, 64 136 (Spigelman CJ, Sheller and Heydon JJA) (New South Wales Court of Appeal); Branir Pty Ltd v Owston Nominees [No 2] Pty Ltd (2001) 117 FCR 424, 437–8 (Drummond, Mansfield and Allsop JJ); Tapp v Thamer [2002] ACTSC 86 (Unreported, Miles CJ, 29 August 2002).
[88] See, eg, US v Armstrong, [2001] USCA8 320; 253 F 3d 335 (8th Cir, 2001); US v Cruz, [2002] USCA8 171; 285 F 3d 692 (8th Cir, 2002). These are federal cases, but the test employed is the same in state jurisdictions.
[89] State v Gladstone, 474 P 2d 274 (Wash, 1970). In this case, the Court found that the jury should not have convicted the defendant of aiding or abetting a crime on the basis of insufficient evidence of knowledge and intent. In Oregon, appeal is only available with respect to errors of law that substantially affect the rights of the parties: OR REV STAT § 138.220 (2001).
[90] Fabritz v Traurig, [1978] USCA4 965; 583 F 2d 697 (4th Cir, 1978). In this case, the Court found insufficient evidence to support a finding that the defendant had knowingly abused her child. The case arose on a habeas corpus petition rather than on appeal.
[91] See, eg, Daniel Kahneman and Amos Tversky, ‘Choices, Values, and Frames’ in Terry Connolly, Hal Arkes and Kenneth Hammond, Judgment and Decision Making: An Interdisciplinary Reader (2nd ed, 2000) 147, 150–2. The authors use the following example:
The US is preparing for the outbreak of an unusual disease that without treatment is expected to kill 600 people. The following sets of choices are postulated:
Choice 1:
• If treatment program A is adopted, 200 people will be saved.
• If treatment program B is adopted, there is a one-third probability that 600 will be saved and a two-thirds probability that no-one will be saved.
Choice 2:
• If treatment program C is adopted, 400 people will die.
• If treatment program D is adopted, there is a one-third probability that nobody will die and a two-thirds probability that 600 people will die.
A rational decision maker would identify that A=C and B=D. However, irrationally most people (72 per cent) choose A in Choice 1 and D (78 per cent) in Choice 2.
[92] For example:
Choice A: a one in 1000 chance of losing $5000.
Choice B: a sure loss of $10.
The expected payoff from Choice A is -$5, which clearly outweighs Choice B (-$10). However, Plous notes that, irrationally, four out of five respondents prefer the sure loss because of a tendency to overweight the chances of a large loss: Scott Plous, The Psychology of Judgment and Decision Making (1993) 99. See also Daniel Kahneman and Amos Tversky, ‘Prospect Theory: An Analysis of Decision under Risk’ (1979) 47 Econometrica 263.
[93] Reid Hastie, ‘Problems for Judgment and Decision Making’ (2001) 52 Annual Review of Psychology 653, 660.
[94] Jonathan Baron, Thinking and Deciding (1988) 29.
[95] Leda Cosmides and John Tooby, ‘Are Humans Good Intuitive Statisticians after All? Rethinking Some Conclusions from the Literature on Judgment under Uncertainty’ (1996) 58 Cognition 1; Gerd Gigerenzer, ‘Rationality: Why Social Context Matters’ in Paul Baltes and Ursula Staudinger (eds), Interactive Minds: Life-Span Perspectives on the Social Foundation of Cognition (1996) 319.
[97] Kenneth Hammond, Human Judgment and Social Policy: Irreducible Uncertainty, Inevitable Error, Unavoidable Justice (1996); Kenneth Hammond, ‘Coherence and Correspondence Theories in Judgment and Decision Making’ in Hal Arkes and Kenneth Hammond (eds), Judgment and Decision Making: An Interdisciplinary Reader (2000) 53, 95.
[98] For example, in a roulette game, the odds of winning on red are 1:1. Yet people are more likely to bet on black following a succession of red wins: see Saks and Kidd, above n 85, 217.
[99] Herbert Simon, ‘Alternative Visions of Rationality’ in Paul Moser (ed), Rationality in Action: Contemporary Approaches (1990) 189, 200–3.
[100] See, eg, W Lance Bennett and Martha Feldman, Reconstructing Reality in the Courtroom: Justice and Judgment in American Culture (1981); Saks and Kidd, above n 85; Willem Wagenaar, Peter van Koppen and Hans Crombag, Anchored Narratives: The Psychology of Criminal Evidence (1993); Bernard Jackson, ‘“Anchored Narratives” and the Interface of Law, Psychology and Semiotics’ (1996) 1 Legal and Criminological Psychology 17; Chris Guthrie, Jeffrey Rachlinski and Andrew Wistrich, ‘Inside the Judicial Mind’ (2001) 86 Cornell Law Review 777.
[101] This approach has recently been criticised by Gregory Mitchell, ‘Taking Behavioralism Too Seriously? The Unwarranted Pessimism of the New Behavioral Analysis of Law’ (2002) 43 William & Mary Law Review 1907.
[102] Guthrie, Rachlinski and Wistrich, above n 100.
[103] See, eg, Robert MacCoun, ‘Experimental Research on Jury Decision-Making’ (1989) 244 Science 1046; Gretchen Chapman and Brian Bornstein, ‘The More You Ask for, the More You Get: Anchoring in Personal Injury Verdicts’ (1996) 10 Applied Cognitive Psychology 519; Reid Hastie, David Schkade and John Payne, ‘Juror Judgments in Civil Cases: Hindsight Effects on Judgments of Liability for Punitive Damages’ (1999) 23 Law and Human Behavior 597.
[104] Anchored decision-makers adjust insufficiently from anchor values. In the Guthrie, Rachlinski and Wistrich study, above n 100, 790–2, groups of judges were asked to fix damages in a personal injury suit. One group was told that the defendant had made an application to have the suit dismissed because the claim did not meet the jurisdictional minimum of US$75 000. The application was without merit. Nonetheless, the group of judges who were informed of the defendant’s application, on average, fixed damages at a lower amount than the group of judges who were not given any information other than details of the plaintiff’s injuries and how they were incurred.
[105] Under framing, decision-makers tend to respond differently depending upon whether the problem is formulated as a choice between making a gain or making a loss. In the Guthrie, Rachlinski and Wistrich study (ibid 796–7) different groups of judges were asked whether a suit should be settled for a certain amount from either the defendant’s or the plaintiff’s perspective. Judges in both groups (plaintiff or defendant) were presented with economically identical information, but from the plaintiff’s perspective the settlement was framed as a gain and from the defendant’s perspective the settlement was framed as a loss. Approximately 40 per cent of judges in the plaintiff’s group felt the plaintiff should accept the settlement, while only 25 per cent of judges in the defendant’s group felt that the defendant should settle the case.
[106] Hindsight bias describes the tendency to assign higher probabilities to an event in retrospect than would be assigned in advance of the event. In the Guthrie, Rachlinski and Wistrich study (ibid 801–3) different groups of judges were given divergent information about an appellate court’s decision. One group was told that the appellate court had affirmed the lower court’s decision. One group was told that the appellate court had vacated the lower court’s decision. One group was told that the appellate court had imposed a different sanction. When the judges were asked whether they would have affirmed the lower court’s decision, 81.5 per cent of the group told that the appellate court had affirmed indicated they would have predicted that result. On the other hand, of the group told that the appellate court had vacated the lower court’s decision, only 27.8 per cent would have affirmed. Similarly, only 40.4 per cent of those told that the appellate court imposed a different sanction would have affirmed the lower court’s decision.
[107] Representativeness heuristics refers to the tendency of people to judge probabilities by the degree to which the evidence being analysed is representative of a category. One important consequence of representativeness heuristics in legal decision-making is that sample behaviour is expected to be highly representative of a parent population. Reliance on representative heuristics leads people to ignore ‘base rate’ information (the relative frequency with which an event occurs). In the Guthrie, Rachlinski and Wistrich study (ibid 808–10) judges were asked to determine whether a defendant had negligently injured the plaintiff. In the scenario outlined, the plaintiff was injured after being struck by a barrel being loaded from the defendant’s hoist into a warehouse. The judges were told that (1) when barrels are negligently secured there is a 90 per cent chance they will break loose; (2) when barrels are properly secured they break loose only one per cent of the time; and (3) workers negligently secured barrels only one in 1000 times. Applying that information, the conditional probability that the defendant is negligent given the plaintiff’s injury is 8.3 per cent. Yet over 40 per cent of judges determined that the likelihood that the defendant was negligent given the plaintiff’s injury to be between 76 and 100 per cent. In other words, the group of judges who over-inflated the odds of negligence placed too much weight upon (1) and insufficient weight upon (2) and (3).
[108] Egocentric bias refers to the tendency of people to make judgments about themselves and their abilities that are self-serving. In one study, for example, judges tended to overestimate the degree to which the lawyers appearing before them felt fairly treated: see Theodore Eisenberg, ‘Differing Perceptions of Attorney Fees in Bankruptcy Cases’ (1994) 72 Washington University Law Quarterly 979, 983–7.
[109] Guthrie, Rachlinski and Wistrich, above n 100, 819.
[110] Empirical research indicates that lay jurors, in fact, give little weight to excluded evidence such as hearsay: see Peter Miene, Roger Park and Eugene Borgida, ‘Juror Decision Making and the Evaluation of Hearsay Evidence’ (1992) 76 Minnesota Law Review 683; Richard Rakos and Stephen Landsman, ‘Researching the Hearsay Rule: Emerging Findings, General Issues, and Future Directions’ (1992) 76 Minnesota Law Review 655. This type of research has led Damaska to conclude that professional judges may also easily misvalue excluded evidence such as hearsay: Mirjan Damaska, Evidence Law Adrift (1997) 30–2. Damaska argues that the absence of accountability through the publication of reasons rather than the frailty of lay decision-making justifies common law evidential exclusionary rules: at 41–6.
[111] Lee Roy Beach, Jay Christensen-Szalanski and Valerie Barnes, ‘Assessing Human Judgment: Has It Been Done, Can It Be Done, Should It Be Done?’ in George Wright and Peter Ayton (eds), Judgmental Forecasting (1987) 49.
[112] Daniel Kahneman and Amos Tversky, ‘On the Study of Statistical Intuitions’ (1982) 11 Cognition 123, 130–1.
[113] See Cosmides and Tooby, above n 95, 17–21.
[114] This is consistent with the views of Damaska when comparing bifurcated decision-making in common law adversarial systems with unitary trial systems in civil law countries: Damaska, above n 110, 41–6.
[115] Marilyn MacCrimmon, ‘What Is “Common” about Common Sense?: Cautionary Tales for Travelers Crossing Disciplinary Boundaries’ (2001) 22 Cardozo Law Review 1433, noting that what constitutes commonsense varies across subgroups of the population.
[116] Ibid 1457–8.
[117] Vern Walker, ‘Theories of Uncertainty: Explaining the Possible Sources of Error in Inferences’ (2001) 22 Cardozo Law Review 1523, 1532–4.
[118] For a useful discussion on the application of Bayesian belief networks in the legal domain, see Ward Edwards, ‘Influence Diagrams, Bayesian Imperialism and the Collins Case: An Appeal to Reason’ (1991) 13 Cardozo Law Review 1025.
[119] For a description of the application of Bayes theorem to curial fact-finding, see Andrew Ligertwood, Australian Evidence (3rd ed, 1998) 21–32. See also C G G Aitken, Statistics and the Evaluation of Evidence for Forensic Scientists (1995).
[120] Richard Friedman, ‘Answering the Bayesioskeptical Challenge’ (1997) International Journal of Evidence and Proof 276, 286; Ronald Allen, ‘Factual Ambiguity and a Theory of Evidence’ (1994) 88 Northwestern University Law Review 604; Nancy Pennington and Reid Hastie, ‘A Cognitive Theory of Juror Decision Making: The Story Model’ (1991) 13 Cardozo Law Review 519; Bennett and Feldman, above n 100, 4–10, 41–64.
[121] Pennington and Hastie, above n 120, 527–8.
[122] William Twining, Theories of Evidence: Bentham and Wigmore (1985) 3, 183–5.
[123] [1996] 2 Cr App R 467, 482 (Rose LJ) (‘Adams’). The appellate court disapproved of the trial judge’s explanations of Bayes theorem to a jury. The explanation was given to put DNA evidence in context. However, the appellate court found that the ‘attempt to determine guilt or innocence on the basis of a mathematical formula, applied to each separate piece of evidence, is simply inappropriate to the jury’s task’. See also R v Doheny [1996] EWCA Crim 728; [1997] 1 Cr App R 369, 375 (Phillips LJ).
[124] [2001] NSWCCA 413; (2001) 53 NSWLR 317, 323–4 (Mason P), endorsing the approach in Adams and stating that ‘[t]he process of assessing the weight of different items of evidence and reasoning to a conclusion on the civil or criminal standard cannot be reduced to mathematical formulae.’
[125] R v Karger [2001] SASC 64; (2001) 83 SASR 1, 165–6 (Mullighan J).
[126] Justice David Hodgson, ‘The Scales of Justice: Probability and Proof in Legal Fact-Finding’ (1995) 69 Australian Law Journal 731, 736.
[127] See, eg, State Government Insurance Commission (South Australia) v Laube (1984) 37 SASR 31, 33 (King CJ, Millhouse and Prior JJ): ‘the statistical fact that a particular proposition is true of the majority of persons cannot of itself amount to legal proof on the balance of probabilities that the proposition is true of any given individual.’
[128] See Adrian Zuckerman, ‘Evidence’ [1982] All England Law Reports Annual Review 126,
128–9. See also Damaska, who argues that the concentrated nature of the oral criminal trial raised greater concerns about limiting the fact-finder’s database than episodic proceedings: Damaska, above n 110, 61–4.
[129] R v Smith [1987] VicRp 74; [1987] VR 907; R v Fong [1981] Qd R 90.
[130] C v The Queen [1993] SASC 4095; (1993) 60 SASR 467; R v F (1995) 83 A Crim R 502, 508–9 (Gleeson CJ, Grove and Abadee JJ).
[131] Smith v The Queen [2001] HCA 50 (Unreported, Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ, 16 August 2001).
[132] Aldridge v The Queen (1990) 20 NSWLR 737.
[133] Kenneth Foster and Peter Huber, Judging Science: Scientific Knowledge and the Federal Courts (1999) 127–8 noting that, although DNA fingerprinting is an exception, even many scientific tests that were developed in an environment lacking normal scientific and medical rigour lack basic information about accuracy and reliability when applied to mixed populations.
[134] For example, it may not be possible to transpose information about rates of HIV infection among the adult population to HIV rates among children.
[135] For example, while it might be possible to obtain information about rates of HIV infection among the Australian population as a whole, it may not be possible to obtain information about HIV rates among white women living in certain parts of New South Wales.
[136] Daniel Kahneman and Amos Tversky, ‘On the Psychology of Prediction’ (1973) 80 Psychological Review 237. Kahneman and Tversky devised a test where the subjects were told that 70 per cent of the members of a group were lawyers and 30 per cent engineers. Each member of the group was characterised as ‘a good communicator’ or ‘a person who enjoys working with numbers’. The subjects then had to label the members of the group as a lawyer or an engineer. Despite the background information about the total number of lawyers and engineers in the group, the test subjects relied more heavily on the characterisations of the group members as ‘good communicators’ or ‘good with numbers’ when making their choices.
[137] Tribe, above n 85, 1361.
[138] Paul Bergman and Al Moore, ‘Mistrial by Likelihood Ratio: Bayesian Analysis Meets the F-Word’ (1991) 13 Cardozo Law Review 589.
[139] Plous, above n 92, 211–14.
[140] Kamala London and Narina Nunez, ‘The Effect of Jury Deliberations on Jurors’ Propensity to Disregard Inadmissible Evidence’ (2000) 85 Journal of Applied Psychology 932, 937. However, see also Norbert Kerr, Robert MacCoun and Geoffrey Kramer, ‘Bias in Judgment: Comparing Individuals and Groups’ (1996) 103 Psychological Review 687, 713, arguing that the comparative level of bias between groups and individuals varies according to group size, the source and magnitude of the bias, and the type of bias.