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  • PSYCHEDFORTORAH

BEWARE OF BIAS



Judah ben Tabbai and Shimon ben Shetach received from them. Judah ben Tabbai said: do not [as a judge] play the part of an advocate; and when the litigants are standing before you, look upon them as if they were guilty; and when they leave your presence, look upon them as if they were innocent, when they have accepted the judgement. Shimon ben Shetach used to say: be thorough in the interrogation of witnesses, and be careful with your words, lest from them they learn to lie.


The Torah commands judges to judge fairly and without bias. While we encourage people to judge favorably (1:6), even perhaps overlooking the faults of others, judges cannot show favoritism in judgement and must be impartial to both sides. While we tend to see the dangers of impartiality in terms of corruption, the challenge of staying fair and balanced is much more complicated and nuanced than just not taking bribes. We all have unconscious biases that are difficult to notice and even more difficult to change. Judges are no different. Numerous studies demonstrate how, without even realizing, judges are influenced by a host of non-legal factors in their decision making. Judicial decision making is affected by many cognitive biases, such as the anchoring effect, confirmation bias, egocentric bias, availability heuristic, hindsight bias, framing effect, and the representativeness heuristic (see Peer & Gamliel, 2013).


To illustrate with one oft-cited example, researchers of the Israeli court system broke the judges’ day into three different parts, starting in the morning and then restarting after two food breaks. They found that judges were more lenient towards the beginning of each session, and then became stricter as the sessions progressed, and then became more lenient at the start of the next session, only to become stricter as that session progressed. Without even realizing it, the judges’ decisions were being affected by how hungry they were.

In noting the progression of the messages given by the different pairs of Sages in the first chapter of Pirkei Avot, Maharal notes that the first idea contained a message for the self, the second for how to develop a household, the third for how to interact with others outside of the house, leading to this Mishna, which has a message geared to more communal, leadership positions, with a message for judges. While the nuances of each clause in both Mishnayot are subject to varied interpretations, the main crux of the statements seems to be one of striving towards justice. Empathy, care, kindness, which are all generally cherished interpersonal values, need to be curbed for the sake of justice. The judge should not help either side by providing his own sets of arguments for their defense (“do not [as a judge] play the part of an advocate”). This requires de-biasing, not even letting the generally promoted value of judging favorably to impact (“and when the litigants are standing before you, look upon them as if they were guilty”). Once the trial is over, however, the judge is expected to be able to compartmentalize, shifting back to the generally encouraged interpersonal injunction to judge favorably (“and when they leave your presence, look upon them as if they were innocent).

On the other extreme of not judging favorably, a judge should hold in check the possible inclination for the extreme pursuit of justice, which may also distort the truth in an attempt to be strict in judgement. Judges shouldn’t be heavy handed on guilty verdicts in the name of justice. Shimon ben Shetach tells us it is essential to “be thorough in the interrogation of witnesses.” Midrash Shmuel quotes the Rashbam who sees this as a response to a tragic story in Shimon ben Shetach’s own life. Shimon ben Shetach was a symbol of someone who pursued justice and did all within his power to institute a system of laws that were enforced. Two of his detractors falsely testified that Shimon ben Shetach’s son was liable for the death penalty. After the trial they came forth and admitted that they testified falsely. Yet, in order to save the integrity of the system, his son convinced Shimon ben Shetach that they had to follow through with the process, and his son was killed through the court. With a tinge of regret, here he tells us, “be thorough in the interrogation of witnesses.”


Perhaps we also see that message in his final statement, “and be careful with your words, lest from them they learn to lie.” In essence, the witnesses learned how to lie and manipulate the system to the detriment of him and his son. Be careful that the strict pursuit of justice doesn’t lead to tragic consequences.


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