What is judicial misconduct

Error culture in the judiciary

As a result, judges ultimately still often listen to their gut instinct when assessing a person's credibility (see the study by MK Dhani, Psychological models of professional decision making, in: Psychological Science (2003), 14, p. 175- 180). The same applies if a prognosis is to be made as to whether a person will commit crimes in the future that are so serious that they justify long-term imprisonment.

The problem is: intuition is a bad advisor!

Just as people can easily be duped by optical illusions or magic tricks, the processes that take place when you judge a person from the gut are also deceptive. It is no different from the first encounter with a potentially great love. In 90% of all cases it is astonishing how the brain can correctly grasp the basic characteristics of a fellow human being within fractions of a second. With the remaining 10%, the intuition can be led to thin ice - with disastrous consequences.

Judges are no more experienced than laypeople at predicting the dangerousness of a defendant or assessing the credibility of a witness. Because even if they have already made numerous judgments, they lack immediate feedback on the basis of which they could further develop their skills (see also the dissertation by Mark Daniel Schweizer "Cognitive deceptions in court. An empirical study" (Zurich 2005), P. 262 f .: "The calibration of experts is typically superior to that of laypeople only if the expert receives quick, unmistakable feedback as to whether his prediction was correct - as is the case with meteorologists, for example." This is the case with judges not the case).

Nevertheless, there is a significant difference between professionals and laypeople: the supposed specialists are much more convinced of their own judgment than the non-experts. In other words, the more experienced a judge, the greater the risk that he will overestimate his own competence.

A study in which the ability of German judges to be influenced by the so-called anchor effect can be found in Englich, “Blind or Biased? Justitia's Susceptibility to Anchoring Effects in the Courtroom Based on Given Numerical Representations ”, LAW & POLICY (2006), pp. 497 ff. (508). None of the judges tested was aware of his susceptibility to influence. The more experienced a judge was, the more he was (mistakenly!) Subjectively convinced that his decision had not been influenced by the given anchor. One speaks of the anchor effect when an estimate is influenced by a number that was mentioned shortly before (example: "How many liters of fuel fit in a jumbo jet? Is it more than 3,000 liters" or "Is it more than 300,000 liters." ? "Depending on the nature of the question, the probability is very high that the estimate will be influenced by the given number. This is no different with judgments (" Will the accused get a prison sentence of more than seven years ").

The fact that the convicts end up in prison or in psychiatry is not a reliable indicator. In this respect, a judge is no different from a doctor who, at the beginning of the 20th century, believed he had an intuitive sense of when patients were about to develop typhoid. The doctor verified his diagnosis by feeling the suspect patients' tongues one at a time, without washing their hands in between. After all patients who had been examined in this way died sooner or later of the deadly infectious disease, the doctor was deeply convinced that he had an unerring diagnostic sense (the example comes from Lewis Thomas and is used by Daniel Kahneman in his bestseller Thinking fast, thinking slowly ”, 2011, p. 297, quoted).

It was no different for a judge who bases his subjectively felt sense of truth and justice on the fact that all those convicted by him were actually locked away.

The other conditions that would help to become wise through experience are also not present with judges. The “co-pilots” - that is, the assessors and lay judges - are not only not encouraged to speak up about the mistakes of a colleague. They are even forbidden to do so under the catchphrase “advisory secret”.

The worst of all is - and that makes the job of a judge one of the most difficult in the world: A judge will only in rare exceptional cases - if at all - receive reliable feedback on whether his decision was correct.

Daniel Kahneman has "Fast thinking, slow thinking" (2011) summarized the conditions that must be met for the acquisition of expertise (p. 296): (1) An environment that is sufficiently regular to be predictable. (2) An opportunity to learn these regularities through years of practice.

If a pilot makes a mistake, he will immediately notice that the plane is staggering. A brain surgeon who overestimates his own abilities will be taught otherwise at the latest when the patient dies of a cerebral haemorrhage. A judge, on the other hand, will never know which of the defendants he has convicted in the course of his life were in fact innocent (or only partially guilty).

Anyone who has lost their freedom through a judicial mistake and is reasonably clever will keep their mouths shut. If he still insists on his innocence after years of imprisonment, he has little chance of early release or a positive prognosis in the context of a psychiatric assessment.

A scientific correction of errors does not take place either. Even if judicial misconduct becomes known retrospectively (as is obvious in the Mollath case), there is no institution that systematically deals with the processing and elimination of potential sources of error.

A judge at the regional court is controlled by the revision authority. However, the Federal Court of Justice does not check whether a witness testimony is correct in the appeal proceedings. The highest German criminal court is satisfied with pronouncing technical errors in the written reasons for the verdict. With increasing professional experience, a judge may become better at skillfully presenting what he personally considers to be right. It will therefore run less and less risk of being overturned by the appeal court. This mechanism does not increase the degree of truth. Rather the opposite is the case: the more precisely a judge knows what he has to write in order to “hold” his judgment, the more skilfully he will pay attention to what he writes in the reasons for the judgment - and what not.

In the book by Thomas Darnstädt “The judge and his victim. If the justice is wrong ”(2013) there is an interview with the presiding judge of the 2nd criminal senate at the Federal Court of Justice, Thomas Fischer, who admits (p. 278):“ The revision instance is much less concerned than the factual instance about one direct access to the truth, but almost always just to present it in the judgment - it can be good or bad - regardless of what really was. "