Academic journal article Brigham Young University Law Review

Implicit Balancing in the Adjudication of Criminal Law

Academic journal article Brigham Young University Law Review

Implicit Balancing in the Adjudication of Criminal Law

Article excerpt


It is a commonly understood notion of American law that, at all stages of criminal proceedings, the "judge has an affirmative . . . duty" to "safeguard the due process rights of the accused."1 This duty did not materialize out of thin air. Safeguarding the rights of criminal defendants is, in fact, a constitutional duty vested in die judiciary by way of the long-standing tradition that judges are entrusted with interpreting and applying the rights and guarantees of die Constitution.2 But whenever tJiey interpret and apply constitutional provisions, judges understand that they face a stark reality: the acceptance and viability of üieir decisions rest on a general perception of legitimacy.3 Having "no influence over either the sword or die purse," courts lack the ability to "take [any] active resolution whatever,"4 and possess "as their only stock in trade moral audiority."5

In odier words, for courts' decisions to be viewed as credible, it is not enough for die public to know merely diat judges are functionally competent to render decisions. Radier, the public must believe that judges are actually making unbiased and legally consistent decisions.6 In order for the public to interpret judicial decisions as correct, those decisions must be devoid of the appearance of bias.7

Those familiar with the common-law system understand that legal reasoning sometimes cannot be accomplished witli precision. When a more rigid, formulaic approach to judging does not work, one alternative is judicial balancing - a method of decision making that "has reached the point where it is the dominant judicial style that characterizes this era."8 In balancing, judges attempt to give appropriate weight to the competing interests and values at play in cases before them.9 Although balancing of competing interests is viewed as a primarily legislative function,10 it has become a commonplace and even expected function of the judiciary in some contexts.

The role of judicial balancing has expanded over time.11 Given the expanded role of balancing in judicial decision making, it is reasonable to assert that ostensibly there is nothing wrong with judicial balancing of competing interests in itself.12 But when a judge has to make decisions in criminal proceedings, the task of balancing can be particularly trying because of the fundamental due-process rights at stake.13 Knowing one of her key duties is to safeguard these due-process rights at trial,14 the judge must somehow answer a litany of difficult questions. What rights should she consider? What rights - if any - are so important that they should not be balanced against other interests? Which of the many competing state interests should be factored into the equation? At what point does the scale tip in favor of protecting a defendant's rights over serving the competing public and governmental interests, or vice versa?

The balancing problem is further complicated, and additional questions arise, when one considers the ever-looming burden of maintaining the appearance of legitimacy. Knowing that the public is increasingly able to keep tabs on every decision she renders,15 the judge must consider exactly what individuals or groups comprise the public - lawmakers, special interest groups, police agencies, people in general, or some combination of the above. Regardless of the tack she takes, the judge must continually evaluate the effect her actions have on the overall perception of the court's legitimacy.

This Comment analyzes judicial balancing as it relates to judges' task of upholding the appearance of legitimacy. Specifically, it contends that judges sometimes implicitly balance - that is, judges weigh often significant and determinative factors but leave those factors unidentified or unexplained. Because implicit balancing can produce unclear or nontransparent rationales in judicial decision making, implicit balancing likely undermines courts' appearance of legitimacy in the long run. …

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