A Presumption Like No Other
What is a legal presumption?
Most definitions of the legal term “presumption” begin by distinguishing it from an “inference.” An inference permits, but does not require, the factfinder to reach a decision about an elemental fact based on other facts that have been proven. It does not shift the burden of production or persuasion. The most common inference in criminal law is that a person intends the foreseeable consequence of his actions. For example, the law permits the factfinder to infer that a defendant acted with malice if he intentionally uses a deadly weapon on a vital part of the victim’s body. Obvioulsy, the factfinder cannot see a person’s thoughts, but from his actions, the factfinder can infer his mental state. In this example, the factfinder does not have to infer malice, nor must the defendant present any evidence to rebut the inference of malice. The factfinder could conclude that even though the defendant intentionally used a deadly weapon on a vital part of the victim’s body, the defendant did not act with malice, or more precisely, that the prosecution failed to prove beyond a reasonable doubt that he acted with malice.
A presumption, on the other hand, requires that the factfinder reach a certain conclusion about evidence unless that conclusion is rebutted. The fundamental presumption in criminal law is the presumption of innocence, which requires that the factfinder acquit the defendant if the prosecution fails to prove his guilt beyond a reasonable doubt. In other words, where one party has the presumption, the other party has the burden of production and persuasion. There are other presumptions in criminal law, which are usually created by statute. For example, the Castle Doctrine creates certain presumptions regardind the defendant’s use of deadly force while in his own home. However, evidentiary presumptions in criminal law, especially those that work against the defendant, are rare because of the presumption of innocence. No statutory presumption can interfere with, or usurp, the presumption of innocence because of the federal and Pennsylvania constitutional right to due process of law, which requires that the prosecution prove every element of a crime beyond a reasonable doubt.
Presumptions are essentially formalized heuristics, or intellectual shortcuts. Thus, if a factfinder finds A and B, then it must find C unless D, where C is the presumed fact and D is the rebuttal.
The way that presumptions work in the legal system is fairly consistent. However, there is one presumption that is like no other– what I’ll refer to as the “judge’s presumption.”
When a defendant files a motion to recuse a judge, the standard is “well-settled.” What that means is that the standard has been recited so many times, in so many cases, and by so many judges, that nobody questions why it is the standard or how it became the standard. It is axiomatic that a fair tribunal is a basic requirement of due process of law. A party seeking recusal bears the burden of producing evidence to establish bias, prejudice, or unfairness, which raises a substantial doubt as to the judge's ability to preside impartially. The appearance of bias or prejudice can be as damaging to public confidence in the administration of justice as the actual presence of bias or prejudice. Concerning bias, the appearance of impropriety is sufficient to warrant recusal without a showing of actual bias.
When a judge denies a motion for recusal, the appellate court reviews the judge’s decision for an abuse of discretion. “An abuse of discretion is not merely an error of judgment, but occurs only where the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence or the record.”
The “abuse of discretion” standard is pretty strange if you think about it. It is not enough for a “judge” to make “an error of judgement.” Huh? Isn’t an error of judgement exactly what an abuse of discretion should be? Not according to the “well-settled” standard. One way that a judge can abuse his discretion is by making a decision based on “partiality, prejudice, bias, or ill will.” This is a somewhat circular standard when applied to a motion for recusal. In other words, to show that recusal is necessary, a litigant must produce evidence that the judge is biased, prejudiced, or unfair. This motion must be presented to the very judge who stands accused. And, assuming the judge denies the motion for recusal, the standard by which the appellate court reviews the judge’s decision is for evidence that the decision to deny the motion was based on partiality, prejudice, bias, or ill will. Thus, the litigant says, “I accuse you, judge, of bias, prejudice, partiality, or ill will.” The judge says, “I deny your accusation.” The litigant then appeals to the appellate court who asks, “did the judge act with bias, prejudice, partiality, or ill will when he denied the accusation that he acted with bias, prejudice, partiality or ill will.” How does the appellate court answer the question?
Here’s where it gets interesting:
When confronted with a recusal demand, judges have the ability to determine whether they can rule impartially and without prejudice. The judge must consider whether his continued involvement in the case creates an appearance of impropriety and/or would tend to undermine public confidence in the judiciary. This is a personal and unreviewable decision that only the judge can make. In reviewing the denial of a motion for recusal, the law presumes that judges are honorable, fair, and competent and can rule in an impartial manner.
The law presumes…. Does this mean that there is an evidentiary presumption that judges are honorable, fair, competent and impartial? This is what I refer to as the “judge’s presumption.”
What is the legal, philosophical, or intellectual basis for the judge’s presumption? We don’t just pull legal or evidentiary presumptions out of thin air. There has to be a good reason for them to exist. Informal razors, like Occam’s Razor, or “laws”, like “Hitchins Law,” exist because they save time and energy. They are intellectual shortcuts that let us make decisions without analyzing all of the evidence and data. Without taking these shortcuts in our daily lives we would become paralyzed and unable to act as we attempt to analyze every detail before making a decision. However, we don’t rely on intellectual shortcuts in the legal system if doing so would violate the defendant’s constitutional rights. Remember that the greatest of all the presumptions, the presumption of innocence, is part of the ethos of our culture– the inherent and inalienable right to due process of law bestowed upon us not by our government, not by our wealth, not by our physical or political power– but by our Creator. This is why a reasonable doubt is often defined as a doubt that would cause a reasonble person to pause or hesitate before acting in a matter of great importance. There are no shortcuts when the defendant’s rights are at stake.
By what right or authority does a judge have to the presumption that he is honorable, fair, competent, or impartial? Especially when he’s reviewing a challenge to his honor, fairness, competence, or impartiality?
Judges are not kings, nor are they ministers, prophets, or oracles of some divine code or revealed truth. They are government officials, employees. In a democracy, such as the United States, judges are public servants. The judiciary is supposed to be the least democratic and the most independent of the three branches of government so that it can protect the citizenry from government abuse and overreach without concern for the political consequences. It is not the job of the executive and the legislature to protect the people from the judiciary, it is the job of the judiciary to protect the people from the executive and legislature. We call the power of the judiciary to invalidate any law or act of government that violates the constitution “Judicial Review.”
I suppose one could argue that the judge’s presumption arises from his political success in winning an election. In Pennsylvania, judges are elected officials. Thus, even though judges are supposed to be the public servants most independent from politics, they still serve at the whim of the electorate– or at least the part of it that actually votes. In the federal government and in other states and countries, judges are appointed. I wonder if the judge’s presumption only applies to those judges who are elected rather than appointed.
Back to the original question: By what right or authority does a judge have to the presumption that he is honorable, fair, competent, or impartial?
The answer begs the question: judges have the right and authority to the judge’s presumption because they have the power to presume that they are honorable, fair, competent, and impartial. To put it more bluntly, it is the consequence of their unchallenged, unreviewable power that judges get to judge their own decisions. Nobody– not the executive nor the legislature– has the power to revoke the judge’s presumption, the intellectual shortcut, that a judge is fair and impartial in the face of an accusation that he is not. Ironically, the judge’s presumption creates the very evil that it was supposed to protect against– the appearance of impropriety. Imagine if in a football game the headcoach of one team got to call all the penalties for his team and the other team. You wouldn’t take that sport very seriously, would you? And for those reason, the judge’s presumpion is a presumption like no other. "Where the word of a king is, there is power; and who may say to him, 'What are you doing?'" Ecc. 8:4.