Evidence Outside the Trial Record | Constitutional Theory | “Making” Law
Empirical Study of Judicial Deliberations
Judging the Bench: Evidence outside the trial record
Judge Eugene Siler: “Sometimes the parties don’t raise issues that we think they probably should. Some judges will decide the case on something that’s not raised. I’m very reluctant to do that. I think if the parties don’t raise it, then we don’t decide it. I don’t go outside the record on anything.”
Judge Boyce Martin: “I consider it my duty to get the record straight in each case, not by consulting outside evidence, but by ensuring that the argument is based on an appellate record that is complete, including exhibits. I can’t tell you how many times it resulted in a proper ruling because the government had done absolutely nothing, the defense attorneys had done nothing. They hadn’t even cited any cases that were very beneficial. I had to do all the work with my clerks, and in the end, the result was right, and it was a much better reasoned result than it would have been if it had just been affirmed without any real investigation….
“You’re talking to me about 50 years of experience as a prosecutor, a defense attorney, a civil litigator in a big firm, a state trial judge, a state court of appeals judge, a U.S. Circuit judge, and a retired human being looking back. Everything has had its influence at one time or another. Everything is open to question and explanation and doubt. The only hope when I finish the decision and mark it filed was that it was right and fair.”
Chief Justice Myron Steele: “We would not do that. What our judges should do is get in touch with the lawyers and say, ‘I’m dissatisfied with the presentation. I’m convinced that my own independent research would get information that I desperately need. I want your consent to address the following sources of information or you address them and present them to me.’ There won’t be any independent investigation by the judge outside the record, and certainly not until the judge has sat down with the lawyers and informed them that he is dissatisfied and inclined to do his own research and get the lawyer’s reaction on the record.”
Chief Justice Cynthia Kinser: “I don’t consider it.”Judge J. Harvie Wilkinson III ‘72: “The law has a certain formality at its core. To some extent, it’s a high church and imposes a certain constraint. This whole idea that we’re going to consult another discipline and look at the consequences of what we do and weigh costs and benefits just lets you loose on a sea of unfettered discretion.”