Judges admit to emotion in court but say they avoid bias in judgments

Australian judges and magistrates admit to experiencing strong personal feelings toward cases they have presided over, new research has found.

But according to a paper presented at a symposium on emotions and justice in Sydney this week, they say a range of long-honed strategies allow them to avoid bias in their judgments.

The paper gives rare insight into the inner thoughts of judges and magistrates gathered from interviews across the country.

Study co-author Sharyn Roach Anleu, from the Flinders University Judicial Research Project, says more than 90 per cent of judicial officers ranked impartiality as the most important quality to bring to the bench.

"To be a judge is to be impartial. The two are synonymous, and impartiality connotes being unbiased, independent, impersonal, and without emotion," she said.

In their interviews, judges and magistrates revealed the strategies they use to recognise when they were having a personal reaction that they needed to check.

"Many reiterated the importance of not bringing into the courtroom other preconceptions or other knowledge or other pre-judgments but keeping an open mind," says Roach Anleu.

"Judges and magistrates talked about putting aside emotion and bias. So even though emotion might have been triggered by events or individuals or things that are happening in the court, the judges and magistrates are aware of that and then decide to put it aside."

The surveys and interviews used in the research, which was also authored by Professor Kathy Mack, were provided on an anonymous basis.

One magistrate said: "I can remember a case where there was bad malicious wounding, and the accused was the nastiest piece of goods I'd ever come across in the Children's Court. And there's no doubt in my mind that he did it."

However, the magistrate went on to say that she had to put this gut feeling aside and rule on the evidence.

"The prosecution evidence just didn't get there. And so even though I thought personally that he did it, when you looked objectively at the evidence it just didn't get there," she said.

"It always hurts to say 'not guilty' when that's not what you are really thinking, but if you don't do that then I think you are not acting in accordance with what you are there for. If you start finding people guilty or not guilty based on your personal views of things, well, the justice system is going to rack and ruin."

Putting aside personal feelings 'crucial to job'

Another magistrate conceded personal reactions to people in court were inevitable.

"I think often we would not be human if we didn't pre-judge people and make an assumption.

"There are people, there are accused persons, that you really feel attracted to — not sexually or anything — [but] attracted to their personality or their manner."

The magistrate went on to say that getting over those feelings is crucial to the job.

"It's about putting all of that to one side as well and no matter how dreadful or unpleasant their lawyer is or they are; it's about looking at the facts that you have before you and making a decision on the facts as they apply to the law."

Some judges and magistrates were candid about how visceral some of these reactions could be, and how hard they were to put aside.

One of the magistrates interviewed gave the following example: "I can remember when I did my first Care List, I had no concept that parents did such atrocious things to their children in this day and age.

"I can remember one of the first files I looked at, the house was just appalling. I thought I was going to be sick, looking at it in chambers before I went on the bench, my blood pressure, anger, everything was just running rife.

"I had to pull myself back and walk on the bench and think you're not here to judge this person on your own standards, you're here to deal with it on the evidence and only the evidence."

Professor Roach Anleu says judges and magistrates revealed a multitude of strategies for dealing with these human reactions to people in the courtroom.

"Another strategy is almost to think about what they are doing in terms of a performance. Some talked about getting ready to go on to the bench, almost like getting ready to enter the stage," she says.

"The judges and magistrates are kind of moving into their role, almost leaving themselves as ordinary citizens with private lives, to becoming a judge and performing their role in the context of the courtroom setting."

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