Constraining prosecutors and other advocates who become judges: A commentary on Berryessa et al. (2022)

Berryessa et al. (2022) consider how prior experience as a criminal prosecutor may influence judicial behaviour, but their concerns about prior experience apply much more broadly in the case of American judges. In the United States, unlike many other countries, lawyers with experience as advocates comprise the great majority of persons selected to be judges (Volcansek, 2010; Wilets et al., 2022), and most American lawyers focus their practice on particular areas and particular client types, such as representing employers or employees in employment disputes. Specialized experience of any kind, whether as a prosecutor or corporate attorney—and both these types of lawyers have been over-represented among recent judicial nominees to the federal bench in the United States (Shepherd, 2021)—may lead to preconceptions, preferences and blind spots that influence how judges discharge their duties.

Berryessa et al. rightly question greater diversification of the bench as a solution because balancing biases across judges does nothing to protect the parties who must appear before the pro-prosecution, pro-business or pro-plaintiff judge. Furthermore, given the many prior advocacy roles judges bring to the bench, it is unrealistic to expect sufficient experiential diversification to achieve balance in the aggregate. Berryessa et al. also rightly question the power of short-term training to produce long-term debiasing effects (see, e.g. Bezrukova et al., 2016; Greenwald et al., 2022). We should not despair, however, for American legal systems employ several measures that constrain judges' idiosyncratic beliefs and personal values to produce merits-based decision-making. In particular, the use of adversarial presentation of arguments and evidence, paired with structured decision-making taking place inside a strong accountability matrix, should promote impartial decision-making.

One of the most effective methods to reduce confirmation bias and biased assimilation of evidence involves considering opposing viewpoints and alternative possibilities (e.g. Lilienfeld et al., 2009; van Brussel et al., 2020). The adversarial presentation of evidence and arguments by parties with conflicting incentives, playing on a field levelled by procedures that reduce the significance of resource disparities, ensure that judges leaning to one side or the other are exposed to competing arguments and factual narratives. This process promotes individuation and perspective-taking that should disrupt preconceptions or stereotypes judges bring to a case (Devine et al., 2012).

Judges do not have free reign to admit evidence and make decisions as they see fit but rather must act according to extensive procedural and substantive laws that govern how judges should handle and decide cases, along with rules directing judges to recuse themselves from cases in which their personal interests, as opposed to the law, might determine the outcome. Many laws employ bright-line rules or multi-factor tests that constrain judicial discretion and focus judges on the legally relevant considerations (e.g. Girvan, 2016).

Judges who place their personal interests above the law can expect to have their actions challenged, for American judges act within an extensive accountability matrix. The most obvious check on judicial power is the hierarchical structure of American court systems, which ensures that all cases can be reviewed by at least one panel of disinterested judges sitting on a court of appeals. This appellate review is designed to detect both factual and legal errors after the conclusion of proceedings in trial courts (most cases cannot be appealed from the trial court until a final judgement by that court has been issued); thus, judges in the trial courts have a strong incentive to decide cases by applying governing law to a reasonable assessment of the facts to avoid having to expend more effort later on the same case. (Because the norm is for cases overturned on appeal to be remanded to the original judge (Heytens, 2014), judges understand the importance of issuing a defensible decision in the first instance.) Reversals of decisions also affect judicial reputations, which may be of particular concern to elected state court judges and federal judges who aspire to appointment to higher courts (Epstein et al., 2013; Paynter & Kearney, 2010).

Another important part of this accountability matrix is the requirement that judges issue reasoned explanations for their actions (Oldfather, 2008). Typically these explanations take the form of written opinions following a bench trial or disposing of motions submitted to the court, but during trial judges usually offer oral explanations for their rulings on evidentiary objections, with the explanations captured by the transcript for the record on appeal. Knowing before issuing a decision that the decision will be reviewed by others for compliance with the law serves as an effective way of inducing judges to issue merits-based decisions. Decision-makers who know before deciding that they will be held accountable for following prescribed procedures in an unbiased way are more likely to reach unbiased decisions than unaccountable decision-makers (Lerner & Tetlock, 1999). The requirement of written decisions by appellate courts also facilitates learning: by providing clear feedback on how a case should have been handled or decided, lower courts should be less likely to repeat those mistakes in subsequent cases.

Yet, another important part of the accountability matrix is the use of multi-member courts and the random assignment of judicial panels to cases in the courts of appeal. Because no particular viewpoint or perspective dominates on courts of review (though certainly some appellate courts lean left or right in their collective decisions over time) and because the composition of the review panel will be randomly determined, judges whose decisions are subject to review can only be sure that their factual findings will be evaluated for accuracy and their legal rulings will be evaluated for legal fidelity. In other words, a trial court judge will be uncertain about what biases the reviewing judges will hold other than a bias in favour of following the law.

In sum, although Berryessa et al. offer good reasons to worry about former prosecutors (and any other former advocates) serving as judges, American legal institutions create conditions that should foster merits-based decision-making. Injustices no doubt occur—sometimes because of ineffective assistance of counsel, sometimes because judges fail to apply a critical eye to expert testimony and other evidence, and sometimes because judges fail to act impartially—but judges with different backgrounds often treat similar cases similarly, suggesting that existing constraints on judges work well to reduce the influence of judges' personal biases (see Harris & Sen, 2019; Mitchell, 2019). Nonetheless, further research is necessary to ensure that former prosecutors serving as judges are not uniquely immune from the constraints that American legal institutions impose on judges.

The author has no conflict of interest with respect to authorship or publication of this article.