- Trial judges worry about doing research. It could mess with the adversarial process. Judges also worry they’ll research badly.
- But, in some cases judges should research. Scientific info, for example, is general knowledge, and something judges could research on their own. Adversarial lawyers aren’t well suited to present it independently. Further, getting science wrong messes with precedent for future cases.
- Further, a trial provides structure. So if a judge produces idiotic research, the lawyers and structure of the trial will correct it.
- Appeals judges shouldn’t conduct research.
- This is because appeals courts don’t have live testimony, which lets experts testify beyond what’s in scientific papers. Further, appellate courts lack examination and cross examination of witnesses. There’s no way to correct boneheaded research.
- Paragraph 3: more or less repeats part of paragraph 2. Appeals courts have no witnesses to comment on judicial research, especially dodgy internet research.
- Appeals courts are courts of review. They shouldn’t try to determine facts. That’s to be done at the trial court level.
This passage mentions a few crucial legal concepts that are of supreme importance for understanding the passage. Once you know these, it should become a lot easier.
Trial Court: This is the first level of legal proceedings. Most cases end here, and follow precedent from appellate courts.
In these cases, both sides can call witnesses and cross examine them. The purpose of a trial court is to determine facts and make a legal judgement on that basis.
Appellate Courts: These courts hear appeals from trial courts. The purpose of appellate courts is to determine whether the law was correctly applied, and clarify which law applied.
Appeals courts do not look for facts. If there was a legal problem in finding facts at the trial level, an appeals court may order a new trial. The Supreme Court is the highest appeals court.
Adversarial Process: The common law system uses an adversarial process to find facts. The prosecutor/complainant brings a case, and the accused/defendant argues against that case. (The terms are for criminal/civil cases respectively)
What this means is that one side will say a thing, and the other side will try to challenge it. The two sides are not working together to find facts. They are working against each other to find the facts most favourable to their side. It is for the judge to admit which facts are relevant according to the law, and for the judge/jury to decide how the fact settle the case.
In practice, this means you might have the prosecutor bring in a forensics expert to explain how science works. They might leave off or underemphasize certain weaknesses. Then the defence has to emphasize these weaknesses and show how they apply to the case.
If the defence doesn’t point out the weaknesses, the jury will never know. And, if the prosecution doesn’t bring up forensic evidence at all, the defence certainly won’t.
Examination of witnesses: At the trial level, each side can call a witness to give testimony. This lets the witness talk in a way the court can understand. The person who called the witness can ask followup questions, and the opposing side can object to certain info being introduced. The judge can also ask clarifying questions.
Cross Examination: The pillar of the legal system. Cross examination lets the opposing side test the things that were said. They can ask questions, seek clarification, point out inconveniences or contradictions, and even expose lies. Crucially, cross examination is under oath, with penalties for false testimony. This greatly limits the ability of witnesses to exaggerate, speak loosely or mislead, as humans so often do in everyday life.
Putting all these together, we get the following characteristics of each court level:
Trial: Finds facts. Examines witnesses, allows cross examination, has live testimony. Is an adversarial process where lawyers can directly hold the judge to account if they find facts incorrectly.
Appellate: No witnesses, no cross examination, no live testimony. Not a place where facts are normally found, so the adversarial lawyers have no ability to affect a judge’s fact finding.
Based on this, the two passages are perfectly consistent. Passage A says trial courts should sometimes conduct research, as the adversarial process and live testimony provide safeguards.
Passage B says appellate courts should not conduct research, as there is no adversarial process or live testimony.
Note that passage A has no opinion on appeals judges, and passage B has no opinion on trial judges. The authors might agree, or they might disagree. We can’t know. The passages are consistent, but consistency merely means agreement is possible. It doesn’t mean it’s certain.
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