Trial Judges Research Articles

Intersectionality: Explaining SGBV Interlinked with Terrorism and Other International Crimes

Sexual and gender-based violence (SGBV) is often intertwined with and nested within other violations of international criminal law (ICL) as part of a broader attack against a group. However, ICL is not giving enough visibility to this nexus of crimes rooted in the intersection of identities and discrimination that underpins SGBV during conflict. Intersectionality is a concept originated in feminism and progressively recognized by international human rights law (IHRL). It posits that SGBV is caused by gender 'inextricably linked' with other identities and factors that result in compounded discrimination and unique aggravated harms. Based on case studies, this paper argues that ICL should integrate an intersectional approach based on identity and discrimination to address the nexus between SGBV and broader international crimes. Intersectionality enables a better understanding of the causes, harms, and gravity of SGBV, and it provides consistency with an IHRL interpretation. The article begins setting out the foundations of intersectionality in feminism and IHRL, and its applicability to ICL. It then applies intersectionality to two case studies that demonstrate the interlink of SGBV with broader violations of ICL: The Revolutionary United Front Case (RUF) trial judgment of the Special Court for Sierra Leone (SCSL) concerning SGBV and the war crime committing acts of terrorism, and Al Hassan, prosecuted at the International Criminal Court (ICC), concerning SGBV and the crime against humanity of persecution. It concludes with final remarks on why and how ICL would benefit from integrating an intersectional approach to SGBV.

Joint and several liability, litigation preconditions and audit quality

ABSTRACT The paper examines the economic effects of the trial judgement of joint and several liability on BDO China. Our study has the following findings: first, the capital market regarded the judgement as a signal to strengthen investor protection; second, the judgement pushed the auditors to enhance their prudence; third, the clients’ financial reporting quality are improved after the judgment; fourth, the above phenomena are more pronounced in areas where administrative penalties or criminal convictions are not the litigation preconditions for civil proceedings for false statements. The study denies Simunic et al. (2017)’s assertion that the legal system in China makes the recovery of damages from auditors is difficult.

Losing Portia’s Voice: The Metapragmatic Evaluations of “Quiet” and “Loud” Female Law Students in US Mock Trial Competitions

In US law schools, students not only learn how to “think” like a lawyer (Mertz 2007), but they also learn to “sound” like one using proper voice qualities. This article analyzes the discourses of mock trial judges who admonished female law students for their perceived lack or excess of acoustic amplitude or speech volume. Rather than explicitly comment that female law students sounded too “quiet” or too “loud,” however, the judges used two different discourses to comment on female law students’ voice quality. They employed direct metapragmatic discourse, voicing female law students in their role as attorneys, to negatively evaluate their low speech volume. Alternatively, the judges applied storytelling as an implicit metapragmatic discourse to comment on female law students whom they perceived as speaking too loud, articulating gendered ideologies about courtroom language that suggest that loud women break norms of courtroom speech decorum. An investigation into the metapragmatics of voice quality thus reveals that the mock trial experience can be doubly marginalizing for female law students: direct metapragmatics associates their low volume with weakness, and implicit metapragmatics associates their high volume with negative, unfeminine, and unlawyerly traits.

The Race to the Top to Reduce Prosecutorial Misconduct

This essay offers an unconventional approach to deter prosecutorial misconduct. Trial judges should use their inherent authority to forbid prosecutors from appearing and handling cases in their courtrooms until the prosecutors have completed training on Brady, Batson, and other types of prosecutorial misconduct. If a single trial judge in a medium-sized or large jurisdiction imposes training prerequisites on prosecutors it could set off a race to the top that encourages other judges to adopt similar (or perhaps even more rigorous) training requirements. A mandate that prosecutors receive ethics training before handling any cases is comparable to the enhanced training requirements that some state legislatures impose on indigent defense lawyers. This essay argues that trial judges arguably have the inherent authority to impose a training requirement on prosecutors to ensure the orderly administration of justice.

TINJAUAN YURIDIS TERHADAP PENYELESAIAN DAMAI PERKARA SEDERHANA EKONOMI SYARIAH (ANALISIS KASUS DI PENGADILAN AGAMA KEDIRI)

ABSTRACTThe objective will be accomplished in the title of the thesis is the author of the above is to find out if the peace process is going on, and the proceedings conducted against a simple matter of Economics Sharia Religious Courts in Kediri were in accordance with the provisions of the law that applies.This research uses the juridical normative approach i.e. researching secondary data or library material, then analyzed qualitative data analysis and results presented with descriptive method, namely by giving a picture in fact regarding the juridical review against a peaceful solution a simple matter of Economics Sharia Religious Courts in Kediri.Based on the results of the research on settlement matters simple economics Sharia Religious Courts in Kediri via the litigation has been in accordance with the provisions of the applicable law, both at the stage of registration, ranging from up to judge drop the verdict. But against the occurrence of the verdict form peacekeeping assignment given by judges in future trials, is not the peace that occurs on the basis of the presence of both parties with the bond Act of peace, but rather the onset of peace because the judge grant the plaintiff's petition to revoke the matter, this occurs after the judge listened to the description of the plaintiff who stated upfront trial that the Defendants had completed his charge to the plaintiff. Besides that the consideration of judge of dikabulkannya petition for annulment of case filed by the Plaintiff because during the trial, the defendants never attend and sent his Deputy, so over the verdict ... Keywords : Sharia Economic Disputes, Peace, Trial

Institutional Design and the Psychology of the Trial Judge

The psychological research of judicial behaviour and decision-making has evolved markedly over the last few decades. While we are still far from developing a full empirical account of what is happening ‘inside the judicial mind’ (Guthrie, Rachlinski & Wistrich, 2001), substantial progress has been made as studies have gradually expanded in scope and methodology. In particular, an increasing number of studies strive to better capture the unique conditions that are relevant to judicial behaviour. For instance, researchers have moved to conduct laboratory experiments with expert subject pools, including judges and legal professionals (for an overview see, e.g., Rachlinski & Wistrich, 2017), more realistic settings (Spamann & Klohn, 2016), and more sophisticated methods, looking not only at the final outcome reached but also at elements of the decision-making process, such as the order at which judges approach various documents and how much time they devote to reading them (Liu, Klohn & Spamann, 2019). Researchers have also deployed the random assignment of cases to judges in order to isolate causal psychological mechanisms in real-world judicial decisions—documenting how differences in case attributes can lead to context-dependent decisions in criminal (Leibovitch, 2016) and asylum cases (Chen, Moskowitz & Shue, 2016), and how judicial decisions may change in response to emotional shocks (Eren & Mocan, 2018). Alongside growing methodological sophistication, scholars have also started to make headway on the manifold ways in which the psychology of judicial decision-making may be intertwined with wider institutional design aspects (Leibovitch, 2016, 2017; Schaur & Spellman, 2017). This new paradigm highlights the ways in which cognitive biases and heuristics can lead not only to transient effects on decisions but can also affect judgements in more systematic and prolonged ways. At its roots is the understanding that the expertise and repeat experience that characterize judges can lead to the creation of schemas and baselines which judges employ when making decisions in individual cases. The institutional capacity of the courts and the applicable rules of procedure and evidence can foster different decision-making environments, thereby changing the schemas created and nudging judicial decisions in a particular direction. In ‘The Psychology of the Trial Judge’, Judge Hoffman emphasizes how judicial decision-making, like human decision-making in general, is susceptible to various cognitive biases. This commentary complements that discussion by extending from the individual trial judge to the characteristics of the court in which she operates, and reviews the connection between institutional design and the psychology of judging through three prominent examples. The first section discusses how because of context-dependent decision-making, the assignment of jurisdiction and types of cases across courts can change the substantive outcomes reached by the courts. The second section draws attention to the tension between the human tendency to retributivism and the rehabilitative goals set by problem-solving or treatment-oriented courts, and how this tendency may be responsible for some of the unintended consequences of specialized courts. The third section reviews the accumulating findings regarding the difficulty of disregarding irrelevant or inadmissible evidence, and discusses how these could inform the applicable rules of evidence governing trials. As this is a developing field of research, throughout the discussion I also highlight some of the limitations of existing evidence and offer new avenues for future research on these topics.

The Bureaucratic Takeover of Criminal Sentencing

Criminal sentencing in the federal courts was transformed by the Sentencing Reform Act of 1984, which launched a bureaucratic takeover of sentencing. It was an extraordinary transfer of authority from federal trial judges to the new United States Sentencing Commission, a centralized and essentially non-judicial bureaucracy. Liberals and conservatives in Congress joined to do this out of mistrust, for very different reasons, of federal judges. The Commission’s sentencing Guidelines - misnamed insofar as they were at least for a time compulsory - still loom powerfully over federal sentencing, with a distinct tilt toward severity. Although the Supreme Court in 2005 cut back the compulsory force of the Guidelines, the “gravitational pull” of the Guidelines is such that most federal sentences still conform to the Guidelines. Moreover, pressure to maintain or increase bureaucratic control over sentencing is likely to persist. This article explains how and why power over criminal sentencing was largely withdrawn from federal judges, and how this accelerated the trend toward more severe sentencing. When individual figures of authority, like judges, are mistrusted, there is a tendency to place or misplace faith in bureaucracy, with its real or imagined attributes of regularity, rationality, and impartiality. Those on the liberal or progressive Left who supported the Reform Act and the ensuing Guidelines regime might not have much reason to be pleased with the results. Those on the Right who supported the change in order to stiffen federal sentencing did, at least for a time, achieve their goal.

Targeted Groups, Rape and Dolus Eventualis

Abstract This article discusses a number of substantive law developments at the Extraordinary Chambers in the Courts of Cambodia (ECCC) after the issuance of the trial judgment in Case 002/02 against Nuon Chea and Khieu Samphan. It focuses on three themes emblematic of the Khmer Rouge era’s unique set of facts: the identification of targeted groups, male victims of rape in the context of forced marriage and the mens rea standard of indirect intent or dolus eventualis. These themes are distilled from the most pertinent jurisprudential developments regarding a number of specific crimes and a mode of liability: persecution on political grounds, genocide, other inhumane acts through conduct characterized as rape in the context of forced marriage, extermination and joint criminal enterprise. This article posits that these substantive law developments have an important place in international criminal law’s corpus as a rare stepping stone between the post-World War II trials and the modern-day international criminal courts and tribunals.

Context effect and confirmation bias in criminal fact finding

PurposeFact finding is an important part of the job of criminal trial judges and juries. In the literature, several potential pitfalls hindering fact finding have been identified, such as context effects (i.e. an unintended effect of non‐probative information on conviction) and confirmation bias (i.e. a skewed selection of and overreliance on guilt‐confirming evidence and neglect of exonerating information). In the present study, the effect of irrelevant contextual information on conviction and subsequent confirmation bias was tested.MethodA sample of Dutch professional criminal trial judges (N = 105) studied a case file and decided on their conviction of the suspect’s guilt, and subsequent investigation endeavours. There were two versions of the file, differing in non‐probative details that might affect conviction, such as crime severity and facial appearance of the suspect.ResultsFindings suggest that context information indeed affected conviction, and the subsequent preference for guilt‐confirming investigation endeavours.ConclusionProfessional judges may be susceptible to bias threatening the objectivity of legal decision‐making.

The Kosovo Specialist Chambers’ Rules of Procedure and Evidence: More of the Same Hybridity with Added Prosecutorial Transparency

The Rules of Procedure and Evidence of the Kosovo Specialist Chambers incorporates procedural rules from Kosovo’s domestic legal system, innovative and useful modalities, procedural rules, practice directives, and lessons learned from the other international(ised) criminal tribunals. Based on a presentation given on 22 June 2018 at Leiden University’s Grotius Centre Supranational Criminal Law Lecture Series — The Kosovo Specialist Chambers: Comparative Legal Perspectives — this article provides a defence perspective on some of the modalities found in the Rules of Procedure and Evidence. In the author’s opinion, some of the provisions on disclosure provide greater protections of fair trial rights for suspects and accused during the confirmation and pre-trial stages than the rules of other international(ised) criminal tribunals, while also maintaining the schizophrenic features found in these international(ised) jurisdictions — placing the burden of proof on the prosecution while granting the trial judges discretionary authority to engage in truth-seeking activities.

Judicial Witness Assessments at the ICTY, ICTR and ICC

Abstract Accurate assessment of witness testimonies underpins judicial fact-finding at international criminal courts and tribunals (ICCTs). However, the lack of formal assessment criteria and uncoordinated methods, coupled with advances in the scientific understanding of the psychology of witnessing, calls for a re-examination of the judicial practice. This study critically evaluates the state of the art of witness assessments at the International Criminal Tribunal for Rwanda (ICTR), International Criminal Tribunal for the former Yugoslavia (ICTY), and the International Criminal Court (ICC), based on all the trial judgments issued in 1996–2019. The analysis results in a consolidation of this ad hoc, constantly evolving jurisprudence, into a framework that has been in development since the 1990s. The authors reflect upon the scientific validity of the criteria used throughout the analysis, based on up-to-date findings from psychology and criminology, and identify the areas that would most benefit from standardized procedures.

Academic Feeder Judges

This paper identifies “academic feeder judges”—the federal judges (especially from courts of appeals) for whom law professors clerked at the beginning of their careers and the judges who “produce” law professors from the ranks of their former clerks. The study is based on a summer 2019 review of publicly available biographies and c.v.’s of full-time faculty at ABA-accredited law schools, identifying more than 3000 “academic former clerks” and the judges for whom each clerked. From this, the paper identifies: 1) 101 lower federal judges with the most academic former clerks, 2) 52 federal trial judges, 3) 53 federal judges appointed since 1995, 4) top state-court judges, and 5) SCOTUS justices, current and past. For each judge within each grouping, the study examines appointing presidents, biographical information such as former career, numbers of academic former clerks, rankings of the schools at which former clerks teach, and a projection of how many academics newer judges might produce over a 35-year judicial career. The study closes with some comments and conclusions from the data. (Spoiler alert: The leading academic feeder judge is Guido Calabresi (Second Circuit), followed closely by Stephen Reinhardt (Ninth Circuit, died in 2018), Stephen Williams (D.C. Circuit), and Dorothy Nelson (Ninth Circuit)).

(Sub)Conscious Judging

Fact inferences made by the trial judge during the pretrial period are the lynchpin of civil litigation. If inferences were a matter of universally held logical deductions, this would not be troubling. Inferences, however, are deeply contestable conclusions that vary from judge to judge. Subconscious psychological phenomena can lead to flawed reasoning, implicit bias, and culturally influenced perceptions. Inferences differ significantly, and they matter. Given the homogeneous makeup of the judiciary, this is a significant concern. This article will demonstrate the ubiquity, importance, and variability of inferences by examining actual cases in which trial and appellate (or majority and dissenting) judges draw quite different inferences from the same record. It will then review the psychological literature to show ways in which judges are affected by subconscious forces. It concludes by suggesting reforms to judicial education, use of decision mechanisms that promote conscious deliberation, and civil procedure rule changes designed to increase information and decrease the impact of individual judges’ inferences.

The Right to a Well-Rested Jury

The vast amount of control that state trial judges exercise over the dynamics of their courtrooms is well established. The length of trial days and jury deliberations, however, has received little scholarly attention. Longstanding research has conclusively established the disruptive effects of sleep deprivation on many of the mental facilities necessary for juries to competently fulfill their duties. By depriving juries of sleep, trial judges may be compromising the fair rights of criminal defendants for the sake of efficiency. This Note argues that trial judges must use their discretion to ensure juries are well-rested, keeping jurors’ needs in mind. Further, state legislatures have a responsibility to properly fund state courts and to pass legislation that ensures overlong tri-al days do not impact verdicts handed down.

Targeted Groups, Rape, and Dolus Eventualis: Assessing the ECCC’s Contributions to Substantive International Criminal Law

This article discusses a number of substantive law developments at the Extraordinary Chambers in the Courts of Cambodia (ECCC) after the issuance of the trial judgment in Case 002/02 against Nuon Chea and Khieu Samphan. It focuses on three themes emblematic of the Khmer Rouge era’s unique set of facts: the identification of targeted groups, male victims of rape in the context of forced marriage, and the mens rea standard of indirect intent or dolus eventualis. These themes are distilled from the most pertinent jurisprudential developments regarding a number of specific crimes and a mode of liability: persecution on political grounds, genocide, other inhumane acts through conduct characterised as rape in the context of forced marriage, extermination, and joint criminal enterprise. This article posits that these substantive law developments have an important place in international criminal law’s corpus as a rare steppingstone between the post-World War II trials and the modern-day international criminal courts and tribunals.

Aiding and Abetting and the International Criminal Court’s Bemba et al. Case: The icc Trial and Appeals Chamber Consider Article 25(3)(c) of the Rome Statute

Abstract This article discusses the icc’s Bemba et al. Trial and Appeal Judgments concerning aiding and abetting under Article 25(3)(c) of the Rome Statute. It analyses three issues that were addressed at trial and some of which were considered on appeal: (i) the actus reus contribution threshold; (ii) encouragement or moral support and the principal perpetrators; and (iii) the mens rea of ‘purpose’. It concludes that the Bemba et al. Trial Judgment provided clarity on the mens rea under Article 25(3)(c), while the Bemba et al. Appeal Judgment settled the question of whether a principal perpetrator needs to be aware of the aider and abettor’s encouragement or moral support for it to have an effect on the crime. However, the Bemba et al. Appeal Judgment ignored the question of whether there is a minimum contribution threshold for the actus reus of aiding and abetting, despite the issue being clearly raised.

Judicial Review of the Fairness and Reasonableness, as between Class Members, of Federal Class Action Settlements

Settlement is the most common way in which federal class actions are resolved in Australia. In order to safeguard the interests of absent class members the settlement or discontinuance of class actions must be judicially approved. A crucial component of this judicial scrutiny entails a determination of whether the settlement in question gives preferential treatment to some class members over others and, if so, whether there are strong reasons that justify the approval of the settlement agreement notwithstanding this differential treatment. Despite the conceptual and practical importance of this dimension of the judicial review of class action settlements, it has been largely ignored in the legal literature. The aim of this article is to address this lacuna by exploring the way in which federal trial judges have, over the last 25 years or so, evaluated the fairness and reasonableness, between the class members inter se, of federal class action settlements.

Similar Facts and Consent in Sexual Assault Cases: Filling in the Gap Left by the High Court in Phillips

A number of jurisdictions in Australia have amended their rules governing joint trials in order to encourage trial judges to join sexual assault counts in the one trial where there are multiple complainants. There are good public interest reasons for joint trials, particularly given the frequency of the serial nature of sex offending. Crime statistics show that the age group most vulnerable to sexual assault is children under the age of consent which is the group least able to protect themselves and least likely to report the abuse. While trial judges must consider the accused's right to a fair trial when considering whether to order joint or separate trials, legislation governing this procedural issue shows that the decision is not black or white. In other words, it is possible to hold a joint trial that does not 'prejudice or embarrass' an accused's defence.

Public Penance of Heretics: its Forms and Functions

The Polish version of the article was published in “Roczniki Humanistyczne,” vol. 59 (2011), issue 2.
 The article discusses the origins of public penance for heresy in the early Christian tradition as well as examining its application in the penitential practice of the medieval Church. It demonstrates how public penance for mortal sins, which took shape in Late Antiquity, was later adopted and developed within the system of Medieval Inquisition. In the medieval collections of canon law, heresy was qualified as a religious crime which required special public penance. Following the guidelines set up in the ancient Church, any heretic who declared his or her intention to renounce their wrongs was to be interrogated by a bishop, who would grant them absolution of sins and prescribed due penance. An important aspect of penance for heresy was public solemn penitence, which took place on Sundays and feast days and included a number of rituals. The penitent heretic had to appear in a special garment with his or her hair cut off and barefoot. The ritual of solemn public penitence for mortal sins was formed in Late Antiquity and as such was later incorporated into medieval pontificals.
 The rise of Medieval Inquisition, which was used as an efficient weapon against popular heresy, stimulated the development of penitential discipline for heretics. Papal Inquisitors, who came to be appointed as extraordinary judges in heresy trials since the 1230s, were particularly inventive in the way how public penance might be employed to fight heretics. Medieval registers of heresy trials, carried out by Papal Inquisitors and bishops, are still the main source of information about penalties imposed on heretics who were sentenced for their errors. The public announcement of a sentence and penalty was the final act of the inquisitorial procedure. The charter of penalties (littera penitentialis), which was first read publicly and later handed over to the penitent heretic, listed various forms of penitence which he had to fulfil. In the inquisitorial strategy of penance, which started to be used in the first half of the thirteenth century, a solemn public penitence of heretics became commonplace. The inquisitorial registers and manuals for inquisitors described in detail the ritual of public penance and its functions. The penance imposed on heretics offered them a chance to repent publicly for their public crimes and to give satisfaction to society which had been disturbed by their deeds. That is why solemn public penance usually took place in a cathedral or central market square on feast days to be attended and witnessed by the local community. Through his special appearance and penitential garment with two cross signs, the heretic was highly visible and could not be anonymous. The whole society was responsible for supervising the penance of heretics and controlling their religious and moral conduct. Any act of religious transgression or misconduct was to be reported to the ecclesiastical authorities. Of course, public penitence was aimed at teaching a lesson to all the faithful and preventing them from falling into heresy.

Understanding the discourse of Chinese civil trials: The perspective of Critical Genre Analysis

The social development and judicial reforms in mainland China over the past 40 years have greatly influenced the way courtroom trials are conducted and how courtroom discourses are purposively constructed to fulfill a variety of judicial, social, and cultural functions. This creates a research gap between the former monolithic understanding of courtroom language as a homogeneous legal entity and the examination of the present hybridizing nature and characteristics of judges' discourse. Drawing on tape recordings and fieldwork notes from 16 Chinese civil trials, this paper aims to fill this gap by invoking the newly developed theory of Critical Genre Analysis (Bhatia, 2017). An analysis of these materials reveals the interdiscursive features of the discourses of Chinese judges in civil trials and at the same time allows us to explore the background social, cultural, and institutional ideologies circumscribing the production, communication and reception of these discourses.