Comments: A judge's bias can show itself
in a number of ways. Some are obvious while others are more
subtle and often not recognized. One way is a judge who relies
on stereotypes and a limited or inadequate understanding of science to
make decisions and issue rulings during the course of a trial. A
recent survey of judges demonstrates that only 3% of judges likely
know enough about science to do a reasonable job of deciding what kind
of scientific evidence is admissible under either the older Frye
rule or the more recent Daubert / Kumho Tire rulings.
It also appears that judges have a rather arrogant view of their own
ability and their competence to serve as the gatekeepers for the
admissibility of evidence. Many do not seem to know what they do
not know. (Dobbin, S. A., & Gatowski, S. I. (2002; download from
http://www.unr.edu/bench/chap03.htm). An introduction to the
Philosophy of science; the judicial role in evidentiary decision-making. In
Dobbin & Gatowski, A Judge's Deskbook on the Basic Philosophies and
Methods of Science). ($38.00 -
Quite possibly the most
powerful way in which a judge can shape and mold a trial to reach
his/her desired outcome is the power to control what evidence the
finders of fact are permitted to have made available to them.
The trial court judge has the discretion to determine what testimony
or evidence is admitted. Seldom do appellate courts overturn a
trial judge on the basis of trial decisions about what evidence is
admissible. Most often it is acknowledged to be within the
discretion of the trial judge and only when it is blatantly and
grossly abused is there any reparative action at the appellate level.
In this case Judge Czajka ruled that an expert
the defense wished to have testify about the identity of a person in a
photograph was not admissible. The basis was "I'm making a
determination this is not the kind of testimony or evidence that is
beyond the canon of a lay person." (p. 410). The testimony would
have been that the person in the photograph (which was quite
ambiguous) was not the defendant. The jury was denied the
opportunity to hear and evaluate the expert testimony for itself.
There is a large, well replicated body of research on eyewitness
identification, photo identification, the expectancy effect, that
shows conclusively that the lay person neither knows nor understands
the error rate when there are claims of eyewitness identification.
This is good scientific data and ought to have been admitted. A
recent law review article is relevant. In reviewing the status
of psychological testimony and the current standards for evidence
admissibility it concludes this type of evidence is admissible as
science and is not known by the general public (Risinger, D. M., Saks,
M. J., Thompson, W. C., & Rosenthal, R. (2002). The Daubert/Kumho
implications of observer effects in forensic science: Hidden problems
of expectation and suggestion. California Law
Review, 90(1), 1-67.).
Judge Czajka shows his reliance upon ill founded
and erroneous stereotypes in his claims that he can successfully lay
aside improper evidence he has heard so that it will not affect his
decisions and in his comments in sentencing which show he has
demonized those accused of child sexual abuse and sees them as the
most reprehensible and wicked of human beings. He has also
accepted uncritically that concept that children are inevitably
damaged by sexual abuse whereas the scientific evidence shows only a
minority of abused children experience long term emotional damage.
A large body of research also shows that low
base rate behaviors (i. e., homosexual pedophile abuse of children)
cannot be accurately predicted or diagnosed when using as an
evidentiary factor a high base rate phenomenon (i. e. possession of
pornography). Even using the most accurate tests or assessments,
the rate of false positive conclusions far exceeds the rate of true
positive conclusions. When the high base rate of an evidentiary
factor exceeds the low base rate of an alleged crime, error is
introduced into the reasoning process of weighing guilt or innocence.
This is what occurs when judges and others use an intuitive
stereotyping approach to arrive at conclusions (Davis, D., & Follette,
W. C. (2002). Rethinking the probative value of evidence: Base
rates, intuitive profiling, and the "Postdiction" of behavior.
Law and Human Behavior, 26(2), 133-158. ).
Finally, the bias of Judge Czajka is evident in
the data from the trial transcript on his responses to objections
raised by prosecutor and defense counsel. Objections raised by
the prosecution and the defense were tabulated into a 2 x 2 table
where the four cells were prosecution objections sustained and
overruled and defense objections sustained and overruled. The
tabulation showed that 86 prosecution objections were sustained and 32
were overruled. Defense objections were sustained 55 times and
overruled 76 times. These results were submitted to a Chi-square
statistical analysis. The Chi-square makes it possible to
determine whether an observed frequency is within or departs from
theoretical or empirical expectations. The Chi-square compares
the frequency of occurrence actually observed with the frequency
expected by chance.
= 249 )
23.38, P < .001
The probability of < .001 is that assigned by
the tables in our statistics book for a Chi-square of 10.83 which is
the lowest probability contained in the statistical tables. The
Chi-square in this case was 23.38. This is an outcome that
cannot be a chance result. Unless other factors can be found to
account for it, the results of .the analysis suggest an extreme bias
by the trial judge in favor of the state. This same type of data
is recognized in the justice system as determinative in showing racial
and/or sexual discrimination, potential bias in juror pools, and
police profiling of minority groups.
Type of Error:
Bias against the defendant.
Stereotyping so as to increase the level of error by relying on
Lack of understanding of science.
Denial of proper admissible scientific evidence and abuse of