We Should Have a ‘Reasonable Idea’ of How Judges Make Decisions


Adjunct Professor Joel Cohen wrote an op-ed for The New York Law Journal about how judges should be approaching testimony they believe to be false.

Perhaps Justice Felix Frankfurter said it best in Watts v. Indiana, 338 U.S. 49, 52 (1949), suppressing in that case a confession coerced by psychological rather than physical means—“There comes a point where this Court should not be ignorant as judges of what we know as men [and women].”

Theretofore, the Supreme Court had astonishingly chosen to disregard legal attacks on confessions that had been contested by defendants in the state courts, as long as allegations of physical force upon these defendants weren’t implicated. For Frankfurter and the Supreme Court, finally, how could the Court ignore what all men and women knew just by being sentient beings—that suspects may indeed just as readily falsely admit crimes they didn’t actually commit based on psychological coercion inflicted upon them?

And while today’s judges may, indeed, still theoretically carry Frankfurter’s thoughtful comment on their tool belts, they sometimes simply choose to leave it there. Indeed, the legendary Manhattan District Attorney Frank Hogan’s brief in 1971 to the New York Court of Appeals in People v. Berrios, 28 N.Y. 361 (1971), actually argued—albeit odd for a prosecutor—that the courts should put the evidentiary burden on prosecutors to prove the validity of so-called “dropsy” testimony.

What, one may ask, is “dropsy?” It’s the colloquial name given to the far-more-than-routine identical police testimony made in order to meet the dictates of the then-emerging search and seizure jurisprudence. “And what did you then observe?”  “I observed the defendant drop the contraband to the ground as I approached him.”

Nonetheless, the majority of a divided Court of Appeals declined the district attorney’s own cry that judges—notwithstanding their private and sometimes even public expressions of a growing scandal that there was a “substantial” amount of false dropsy testimony. They were permitted to remain “ignorant” (to use Frankfurter’s pointed phrase) of the reality of what was known by everyone to be going on in the streets and in the criminal courts of New York State daily. Indeed, Chief Judge Stanley Fuld’s poignant dissent in Berrios that described  “reason and the imperative of judicial integrity,” in some respects spoke more to how judges should decide cases when they listen to witnesses, than how the police were testifying.

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