Friday, February 17, 2012

Jerome Frank’s “Other” Form of Judicial Activism

The Effect of Capricious Fact-Finding at the Trial Court Level
By Molly C. Casey

Molly Casey, a third year student at Albany Law School, is a Senior Editor for the Center. She works in the New York State Legislature as a Legislative Aide to Senator Lee M. Zeldin.
She wrote this essay as an assigned memo for the Fall 2011 Judicial Process Seminar.
This is her second contribution to the Center. (See A Reasonable Path to a Just Result: Cardozo's and Holmes' Counter to Judicial Restraint, Nov. 7, 2011.)

In the initial chapters of his book “Courts on Trial : Myths and Realities in American Justice,” Jerome Frank discusses the role of the court as a fact finder. [1] Frank’s discussion suggests that the judicial activism/restraint debate would be more fitting in a discussion of an appeals court, and less applicable in his discussion of trial courts. Decisions at the appellate courts are concerned with formulating a rule that can be used and applied. The primary purpose for this is the interest of predictability. The appellate courts articulate rules that serve as precedent for later cases and the judges who articulate these decisions have to consider the effects of their determinations. Trial courts, on the other hand, are concerned with the case before them and their determination affects only the result in that particular matter.
[1] Jerome Frank, Courts on Trial: Myth and Reality in American Justice (Princeton University Press, 1949).

While trial courts serve the fact-finding function, appellate courts leave facts determined at the lower court level undisturbed, except under limited circumstances. The obligation to “adopt the trial court’s determination of the facts” arises due to the importance placed on actually hearing and seeing, as opposed to relying on a mere reading of the record to discern facts and make factual determinations. Frank is concerned with the fact-finding function of courts as opposed to the rule determination function, and the rule determination function is where judicial activism largely comes into play. So while his book discusses the judicial process, he touches on judicial activism only tangentially, and he instead focuses on the precarious nature of fact finding in the lower courts.

The “facts” that are found in the lower court, Frank argues, are not objective facts. These are facts which are “found” based on the belief or opinion of a judge or juror about something that was presented to them by a witness, who articulated their own subjective belief or opinion to the court. Here, the “fact” is merely a belief about a belief. Frank also notes several problems arising with witness testimony; the most inexorable being bias, where the witness is honest but mistaken. Frank says mistakes often arises out of a witness’s “desire to be an important element in the case,” and is more dangerous than a witness who tells a lie.

Anything that clouds the fact-finders’ inquiry further removes the “fact” that is found from being an actual fact, so that the determination is no longer a function of weighing a rule and an actual fact, but of weighing a rule and a subjective fact. This can lead to an erroneous decision. On appeal, as long as the reviewing court leaves the factual determination undisturbed, the wronged defendant would be deprived of redress because the appellate court is concerned with the application of the facts found below to the law. When the facts are wrong then a wrong result at the trial level can go unnoticed on appeal.

Frank’s discussion relates to the judicial activism/restraint discourse with the argument that the court as “fact-finder”, creates the facts and thus defines the legal rights of the parties. This throws off any semblance of predictability because by making ones legal right dependent upon what is decided at trial --whether the “facts” used to reach a decision are accurate or not -- lawyers are disabled from having any concrete way of predicting the outcome of their case. While Frank’s treatment of activism/restraint is concerned with the judges tweaking legal rules to achieve results, Frank’s discussion focuses on the trial court’s unintentional or intentional tweaking of facts to achieve results. Both discussions speak to the variance in result when a judge (or jury) deviates from the blackletter law or the objective facts of the case, which results in predictability being undermined and the erosion of reliance on established rules.

Frank says that you “can’t really know your legal rights (your court-enforceable rights) against any other person, about anything, until you obtain an enforceable decision in a specific law suit brought against that other person” because these rights turn on facts. The proof of these facts is left to the mercy of witnesses who may be mistaken or perjuring, juries that may be biased or inattentive and judges who may be flawed. With legal rights that ultimately waver based on judicial imperfections, Frank’s argument fits into the judicial activism/restraint discourse inasmuch as a judge who exercises discretion in excess of what is considered permissible is, in essence, an “imperfection.”

While in the higher courts, activist judges are able to skew their reading of the rule to achieve a result, in the lower courts; judges are able to do the same thing by hearing the facts that they want to hear and applying them accordingly. Whether legitimately, or operating under the guise of a “fallible witness of a fallible witness” in their interpretation and application of facts, trial judges are can exercise some form of activism akin to that exercised by appellate court judges when they interpret and apply the law to the facts presented to them.

While we tend to think of laws and rules as being somewhat open to interpretation in varying circumstances, facts are facts. This makes the concept introduced by Frank that facts are changeable by courts in the course of reaching a determination on a party’s legal right quite shocking. Frank’s book is a good counterpart to the body of scholarship that discusses judicial activism and restraint because it is demonstrative of a pattern of “activism” at the trial level that is similar to the activism used by appellate court judges.