If a judge constructs arguments for the prosecution in judgment is that grounds for appeal? I recently read a judgment in which the judge constructed arguments that normally one would have expected the prosecution to make. In fact, the defense in the case argued that the prosecutor failed to demonstrate their case by not arguing certain points that they should have. This seemed to create no problem for the judge who just "remedied" the situation by making the arguments that the prosecution should have made in her judgment. My understanding is that judges are supposed to weigh the merits of the arguments put before them, not make new arguments to repair or strengthen the case for one of the sides. I thought that the judge's tendency to bolster the prosecution's case with such arguments smacked of judicial bias in favor of the prosecution. Is it grounds for an appeal to complain of judicial bias if a judge makes a de novo argument in their judgement, assuming that argument would have been necessary for a conviction? If so, what are the relevant precedents in United States case law? (PS is there a technical term for the rules concerning the "role" of the judge in a court, what they supposed to do, and not supposed to do?)
This probably isn't a ground for an appeal. While a party arguing to reverse a trial court's decision must show that the argument that they are making on appeal was "preserved" by that party at trial by making that argument in the trial court, the converse is not true. Indeed, one of the rules of appellate practice is that a trial court's ruling will be upheld for any reason supported by the evidence even if it wasn't made by any party at trial. Generally speaking, a trial court isn't supposed to try a pro se party's case for them, but once the evidence is in, the court is free to do original legal research and come to a conclusions contrary to the arguments made by either of the parties. A judge is supposed to correctly apply the actual law to the facts notwithstanding the efforts of the parties to lead it astray. This doesn't systemically happen in favor of one party or the other in my experience, but is more common when one or both parties is relatively inexperienced in the relevant legal field. Appellate courts also come to conclusions about the law not advanced by either party on a regular basis. If anything, this is even more common in the area of administrative law, where the judge is likely to be a subject area specialist, than in ordinary civil litigation. It is also more common in administrative law because a judge in that context is more focused on the institutional implications of a bad precedent than trial court judges in ordinary courts. (PS is there a technical term for the rules concerning the "role" of the judge in a court, what they supposed to do, and not supposed to do?) Probably, but there isn't any term that comes readily to mind. If I can think of one, I will update this answer.
Yes it affects them. Judges are pursuing their vocation as a career and there are career paths within the judicial system just as there are in every other career. Screw up too many times and your career ends at your present level. Judges are also professionals and most take professional pride in doing their jobs well. Having a decision overturned is professionally embarrassing. As a matter of public policy, there is no sanction that is directly applied to the judge otherwise judges would be too cautious to make decisions. Anyone who makes professional decisions will get them wrong from time to time - they generally are not punished. That said there are judicial errors that stem from making the wrong judgement (so to say) call and judicial errors that stem from royally screwing up. The former are far less damaging than the latter. For an example of the former, a judge is applying a relatively new statute for which there have been no other decisions and interprets the legislation in a reasonable way but one the appeal court disagrees with. For an example of the latter, deciding the matter on a basis which neither party put before the court and which the judge did not draw to the parties attention during the trial - as a common law country, the New Zealand legal system is adversarial: the court exists to decide the dispute between the parties on the basis the parties argue, not to go on a "frolic of its own". In addition, appeal courts can only overrule a decision if the judge has made an error of law, not if they have made an error of fact. A judge is allowed to be wrong about the facts but not about the law. In practice, the distinction is not trivial. In a jury trial, the jury decides the facts, the judge decides the law - appeals can only be on the basis of what the judge did, not on the basis of what the jury did (barring egregious misconduct by the jury). In a judge only trial the judge decides both but an appeal can only be on matters of law.
If the prosecutor (P) knows or strongly believes based on this new evidence that A is innocent, ethically P should start proceeding to have A's conviction reversed or reviewed. But in far too many cases P does nothing of the sort. If P simply files a charge against B and proceeds to try B for the crime, P leaves it open to B's Lawyer to ask &quot;Didn't you already convict A for this crime? what about that?&quot; as part of a defense, which might well embarrass P and lose the case. So P may well choose to file charges against B claiming that A &amp; B acted together as accomplices, even if this requires misstating the evidence, or suppressing part of it. Or, P may simply ignore the new evidence, leaving A in prison and B free. This is unjust, but requires no effort on the part of P, and may seem less likely to raise embarrassing questions about why P got the case against A wrong. P can always claim that s/he did not believe the new evidence. That might even be true, there is such a tendency to believe what we wish to believe. The relative frequency of these responses on the part of those in the position of P here is really not possible to asses. The last two responses involve P suppressing or at least burying relevant evidence, and unless it is brought to the attention of others who publicize it enough that action is taken, it will not be generally known and cannot be tabulated in any statistics. P's office will certainly not respond to any survey which asks &quot;How many times this year did you suppress the true facts to leave in place an unjust conviction you had previously obtained?&quot;
The appropriate course of action would be to demand an evidentiary hearing, present evidence, and appeal the judge's ruling if it is contrary to the evidence in the record. Abandoning your attorney because the judge is sounding ominous would be foolish indeed. You can't do anything about the judge or about DSS.
Because they are only apparent with hindsight The judge writing the judgement does not decide what is dicta and what is obiter - that is for some future judge considering a different case and deciding if they are looking at a binding (dicta) or persuasive (obiter) precedent. First of all, the vast majority of cases follow precedent; they do not set it. If you are trying to disentangle dicta and obiter then you are usually looking at the case of an appeal, not a trial judgement. Most trials turn on the facts, not precedent-setting points of law - usually, there is no dispute about the law at all. Even then, most appeal decisions don't set a precedent either and sink into obscurity until at some point in the far future when a lawyer doing research on a particularly tricky case has an &quot;ah-ha&quot; moment and says &quot;Look at what Justice Bozo said in paragraph 365 of this 56 page judgement about a tangentially related issue between different people at a different time in a different place - I need to spin this as dicta.&quot; Meanwhile, the lawyer on the opposite side has a different precedent from a different case that contradicts this one - one of them must be wrong. So a trial judge faced with this paradox has to resolve it; they don't get to say &quot;this is too hard&quot;. Basically they have 2 methods of doing so: The decide that one (or both) are obiter and make the decision based on the precedent that remains. They decide that both are ratio and write a judgement that they know has to be appealed because they have to follow both precedents and they can't. At least in Australia, this is becoming more and more common. The judge basically says &quot;I have two conflicting binding precedents, I pick this one for [reasons]. Now go off to the Court of Appeals to see if I got it right. I look forward to finding out.&quot; Of course, the winner isn't going to appeal and it may not be in the loser's commercial interest to do so. So maybe the question just gets kicked down the road for some other poor bloody judge to have to deal with.
The core principle of stare decisis is that the law should not depend on what judge you got; two cases with the same facts should have the same outcome. In the common-law tradition, there weren't really written statutes; there was only "what's been done in the past," and so the only reference you'd have to what the law should be in some situation is past court decisions. If judges didn't have some constraints to rule similarly to before, there really wouldn't be any legal standards (because there was no written law to go back to; in civil-law countries, there always has been a written law, so precedent isn't so important). Stare decisis doesn't actually directly stop a judge from entering a decision that goes against binding precedent. However, judges are expected to obey precedent, and for the most part do what they're supposed to do. If they don't, the case will likely be reversed on appeal. Binding precedent only applies within the area a court serves; a court doesn't have to listen to precedent from a different court that has nothing to do with the case. The rule is that precedent from any court up the appeals chain is binding; federal district courts are bound by their circuit court and SCOTUS, state courts are bound by higher state courts and SCOTUS (but not other federal courts, as the case can't be appealed to them). A court can sometimes overrule its own precedent, but the cases where it can do that are rare (and so applying a higher court's precedent can also be viewed as "if you appeal to them they'll say X, so we're saying X.")
In a deposition, attorneys are supposed to keep their objections short and refrain from making an objection that indicates to the witness how he should answer. A question might be objectionable because it lacks foundation, because it is compound, because it calls for speculation, etc. Example 2, for instance, could be said to assume that Ms. Redacted was involved, and I might not want my client to discuss how he would act in that situation. Some attorneys in that situation might say, "Objection, assumes that Ms. Redacted had anything to do with this, which you haven't proved, and it's impossible to say what would have happened under circumstances that never happened." This gives my client a pretty clear signal that he ought to make clear that Ms. Redacted wasn't around, and that he should try to avoid getting pinned down on any questions about what he would have done if she had been. This practice -- known as "a speaking objection" -- can be used to signal to the witness how best to answer, and it leads to huge fights in a deposition. To avoid those fights, courts have developed a practice of requiring lawyers to simply "object to the form," rather than coaching the witness. That puts the objection on the record so it isn't waived, and if it's truly problematic, the parties have an opportunity to explain in greater detail after the deposition is concluded.
A lawyer for either party can claim, during argument, that an adverse witness is not credible, for any reason or none. Often the lawyer will point to matters disclosed during cross-examination, claiming that they are contradictions, show bias, or otherwise indicate lack of credibility. Or the lawyer could point to elements of the primary testimony which the lawyer claims are implausible. If there has be evidence of a prior conviction, the lawyer could refer to this. A lawyer may in general ask a witness about prior convictions. Criminal convictions are generally matters of public record, and can be researched. It is not usual to present reputation or credibility witnesses for any person except the defendant, and failure to do so, even for the defendant, does not lead to any automatic assumption of lack of credibility. Not does the appearance of such a witness grant an automatic assumption of credibility. But a lawyer may point out reasons for thinking a witness not credible. Ultimately it is up to the finder of fact, often a jury, to decide what weight to give the testimony of each and every witness, based on the impression that testimony made, as well as any argument from the lawyer. This is one reason why courts are reluctant to overturn factual assessments by a jury: the reviewing court does not see and hear the manner of a witness and what it may indicate about credibility.