How judges judge | Brian Barry | TEDxFulbrightDublin

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is Lady Justice really blind take a look

at this picture Lady Justice represents

everything a good justice system should

be she represents how judges should make


she wears a blindfold signifying her

impartiality and she carries with her a

sword closely tucked into her side and

he's ready to wield her power if

necessary and she also carries the

scales of justice to balance the merits

of a case before her in Ireland above

Dublin Castle we have our own rather

different take on the Lady Justice

statue take a look and what do you

notice is different she's taken off her

blindfold for a start she doesn't seem

to be paying a huge amount of attention

to her scales of justice on rather she's

looking lovingly at her sword which she

seems to be enjoying waiving a bet what

I'm going to tell you about is about

research about how judges really judge

about factors beyond the law that can

affect judicial outcomes and just as

importantly how this research can be

used to inform judges how they perform

to help them make better fairer

decisions judges predominantly are

experts in their field they are smart

men and women who have dedicated their

lives their professional lives to

considering and deploying the law before

I started lecturing in law and

researching in this area as a law

student I would pour over

complex intricate legal arguments in

legal decisions and after I graduated I

qualified as a lawyer I went into the

courtroom and all of a sudden I became

immediately aware that there was so much

more to it than what was in those text

books judging was emotive it was utterly

human it was tricky and short judging

his heart and the research out there

demonstrates that the research are

briefly described to you comes from the

fields of political science and

behavioral sciences and some of this

research has started to take a very

interesting turn of late they've started

to use real practicing judges as guinea

pigs in mock trial experiments to test

for factors that might be influencing

them in their day to day work to briefly

categorize these factors they are

factors in the courtroom something that

gets said or is something that happens

at trial that might impact the decisions

then there are factors outside of the

courtroom completely unconnected with

the decision to be made and finally

cognitive error sometimes called

cognitive bias which affects all of us

when we make decisions and can affect

judges as well - the first of these then

factors at trial and briefly to

introduce a legal concept to you which

many of you will be familiar with in

admissible evidence that is information

that should not be let into a trial it

shouldn't be heard a by law it is

inadmissible but sometimes of course

something let's slip someone says

something during the trial that

shouldn't be said

but the law says that judges the

decision-makers should disregard this it

shouldn't have any impact whatsoever on

their decision and what researchers have

started to ask is well can judges

actually ignore inadmissible evidence

and one of these experiments researchers

asked a group of 95 judges to rule on a

hypothetical mock trial so real judges

mock trial and the trial concerned an

alleged rape at a college party and all

of these judges heard exactly the same

facts except they broke the group of

judges into two and half of the judges

heard additional information oral

testimony from a witness about the rape

complainants supposed sexual history in

great detail the other group of judges

did not hear this additional information

now most of the judges in the group that

heard that oral testimony knew that this

was inadmissible evidence and declared

it as such when you think about it the

rape complainants prior sexual history

has nothing to do with the facts leading

up to the alleged rape nevertheless the

researchers demonstrated that it did

have an effect in the group of judges

who did not hear this oral testimony the

conviction rate was 49% among the judges

who knew this is inadmissible evidence

and a declared as such the conviction

rate dropped to 20 percent that's a huge


the inadmissible evidence seemed to have

an effect even though they knew by law

they were to disregard it factors

outside of the courtroom then and one

factor that many researchers have looked

at is bias or discrimination against a

minority group and so think sexism or

racism perhaps in the courtroom but this

factor can actually work its way into

decision making strange and unusual ways

in a recent study just published this

year researchers looked at sentencing

decisions handed down against young

black men in the state of Louisiana

between the years 1996 and 2012 so real

judges real decisions and the

researchers looked at these decisions

the length of sentence is what we're

looking at here in Louisiana there is an

American football team a college

football team and they're hugely popular

and they're called the Louisiana State

University Tigers and everyone loves

this team now what has that got to do

with sentencing decisions against young

black men well what the researchers

found was that if the Tigers

unexpectedly lost suffered a shock

defeat that had an effect perhaps on

sentencing outcomes what they found was

when they lost when the Tigers lost

judges tended to hand down harsher

sentences against young black men and of

course when you think about it the

Tigers like many college football teams

are predominantly made up of young black

men so if you're a young black guy for

sentencing next week in Louisiana go


cognitive error cognitive biases the

last Elise one example of this is

related to numbers decision-making about

numbers and when you think about it

judges have to make decisions about

numbers all the time I've already

mentioned sentence lengths

other examples include an award of

compensation for someone who has

suffered some wrong or the appropriate

amount of a fine against someone who has

done wrong and coming back to an

experiment example again researchers

asked a group of judges to determine

what they thought was an appropriate

fine against a nightclub who had been

engaging in noise pollution all the

judges again received all the same facts

except they split the group of judges

into two and in one group the nightclub

was called Club 58 in the other group

the nightclub was called Club 11800 and

66 which of course is a ridiculous name

for a nightclub but what's the point

what's going on here what the

researchers found was that the award

sorry this fine against the night club

Club eleven thousand eight hundred and

sixty six was on average three times the

amount of the night club 58 what's going

on here this is an example of what's

called the anchoring effect where a URI

or anyone and including judges when they

have to make a decision about numbers

they are drawn towards a number put to

them even if that number is utterly

irrelevant and unconnected to the

decision at hand so what we have here

are different factors influencing

judicial decision making factors at


inadmissible evidence possibly having an

effect on judicial outcomes factors

outside of the courtroom seemingly a

connection between the success or

failure of a college football team and

the outcome of sentencing decisions and

cognitive error an anchoring effect when

I think about judges I think about how

difficult a task they have both in terms

of the quantity of cases that they have

to deal with and also just in terms of

the sheer intellectual rigor that is

demanded of them when I'm talking to my

students lecturing to them I try to

emphasize that there is so much more

than what is in those text books that

judging is a tricky human messy business

and my aim and the aim of other

researchers out there is to refine this

research to improve these experiments to

understand these effects more and also

quite simply to get the message out

there to as many judges as possible and

a lot of really good work is being done

there are encouraging signs where judges

are really starting to get on board with

this research in Slovenia and in the

United States

judges are starting to participate in

judicial training conferences where they

participate in miniature versions of

these kinds of experiments and they

become more self aware and self

reflective on their own practice in

England and Wales I spoke recently to

the head of selection policy in the

Judicial Appointments Commission where

they are charged with recruiting judges

and they've started to introduce at the

recruitment stage role-playing exercises

qualifying tests to test candidates

independence and soundness of judgment

but this is just the start of something

so much more needs to be done as far as

I'm concerned every judge should know

about the results of these studies every

judge should even perhaps participate in

these kinds of experiments during

training to help them be more self

reflective and self aware of these kinds

of effects and at the very least every

judge should know the basics of the

psychological effects at play to my mind

that would lead to better fairer justice