NCJ Number
56579
Journal
Law and Human Behavior Volume: 1 Issue: 4 Dated: (1977) Pages: 385-401
Date Published
1977
Length
17 pages
Annotation
THE THEORY OF COGNITIVE DISSONANCE IS REPORTED AS USEFUL IN PREDICTION OF WHEN PSYCHOLOGICAL BIAS IS LIKELY TO THREATEN FAIR DECISIONMAKING BY JUDGES IN THE RESENTENCING PROCESS.
Abstract
THE LAW DOES NOT FAVOR THE AUTOMATIC DISQUALIFICATION OF JUDGES FROM APPEARING TWICE IN THE SAME CASE. AS A GENERAL RULE, TRIAL JUDGES CAN PARTICIPATE AT VARIOUS STAGES IN THE SAME CONTROVERSY AND CAN RETRY CASES AFTER REVERSAL OF THEIR JUDGMENTS BY APPELLATE COURTS. HOWEVER, STATUTES MAY REQUIRE THAT JUDGES WITHDRAW WHEN A DEFENDANT MAKES A SPECIFIC ALLEGATION OF BIAS OR PREJUDICE. THE PRESUMPTION THAT JUDGES CAN PRESIDE AT VARIOUS STAGES IN THE SAME TRIAL IS BASED ON THREE FACTORS. FIRST, THE RULE CONSERVES JUDICIAL RESOURCES. SECOND, THE LEGAL SYSTEM HAS TRADITIONALLY RELIED ON THE ABILITY OF JUDGES TO DECIDE ISSUES FAIRLY. THIRD, A PARTY CAN EASILY REMOVE A JUDGE FOR CAUSE. ALTHOUGH JUDGES ARE GENERALLY PERMITTED TO RESENTENCE DEFENDANTS ANY NUMBER OF TIMES, THE PSYCHOLOGICAL THEORY OF COGNITIVE DISSONANCE SUGGESTS THAT SUBSEQUENT SENTENCES MAY NOT BE OBJECTIVE AND FAIR. IN VIEW OF THIS POSSIBILITY, SEVERAL FEDERAL COURTS OF APPEALS HAVE BEGUN TO REQUIRE A DIFFERENT JUDGE IN THE CONDUCT OF RESENTENCING. THESE COURTS HAVE NOT RELIED EXPLICITLY ON DISSONANCE THEORY; INSTEAD, THE THEORY CORROBORATES FEARS EXPRESSED BY COURTS THAT THE ACT OF PRIOR SENTENCING WILL DISTORT A SECOND SENTENCE BY THE SAME JUDGE. JUSTIFICATION OF A GENERAL RULE THAT A SECOND JUDGE MUST RESENTENCE DEPENDS UPON BOTH THE RISK THAT THE FIRST JUDGE WILL ACT IMPROPERLY AND THE COSTS OF PROVIDING A SECOND JUDGE. VARIOUS FACETS OF THE THEORY OF COGNITIVE DISSONANCE AND CASE LAW RELEVANT TO THE RESENTENCING ISSUE ARE DETAILED. THE APPLICATION OF DISSONANCE THEORY TO RETRIALS AND COLLATERAL ATTACKS IS EXPLORED. (DEP)