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Cited by 28Judicial and Constitutional StudiesLegal processes and jurisprudenceJury Decision Making Processes

Prosecuting from the bench? Examining sources of pro‐prosecution bias in judges

Open access
Berryessa, Colleen M., Dror, Itiel E., McCormack, Chief Justice Bridget·2023·Legal and Criminological Psychology
DOI 10.1111/lcrp.12226
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Abstract

Although judges may be well intended when taking an oath to be impartial when they reach the bench, psychological and legal literature suggests that their legal approaches, behaviour, and decision‐making processes are subconsciously impacted by biases stemming from and influenced by their attitudes, ideology, backgrounds, and previous experiences. Drawing from prior models of sources of bias in legal contexts and existing literature on judges, this paper discusses and models potential sources of pro‐prosecution bias in judges with prosecutorial backgrounds. These include (1) professional and self‐selection into the judiciary; (2) prosecutorial socialization and attitudes that can shape a prosecutorial mindset; and (3) the effects of common unconscious biases, confirmation bias and role induced bias, that may shape judicial behaviour through formed beliefs and approaches stemming from the prosecutorial mindset and selection into the judiciary. As the vast majority of judges are former prosecutors in the U.S. as well as in many other countries, this paper considers possible ways to deal with pro‐prosecution bias and the potential importance of diversifying judges' professional backgrounds.

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  • Bias plagues the justice and legal systems from initial police officers arriving at a crime scene, through lawyers and evidence in court, to jurors' decisions and judges' sentencing, and even later at parole boards.

    “Bias plagues the justice and legal systems from the initial police officers arriving at a crime scene, through the lawyers and the evidence presented in court, all the way to the jurors’ decision and the judges’ sentencing, and even later at parole boards”

    From Biased and biasing: the hidden bias cascade and bias snowball effects (2025) · cites this paper as Berryessa et al., 2023

    The Introduction discusses possible pro-prosecution bias in judges’ evidentiary rulings and sentencing, and the section on common unconscious biases gives examples involving evidence presented at trial. The paper does not establish the claim’s broader account of bias from police arriving at a crime scene through jurors’ decisions and parole boards. (LLM, conf=0.87)

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  • Judges have biases that may have been shaped by their training and education as prosecutors.

    “For example, it has been shown that judges have biases that may have been shaped by their training and education as prosecutors (Berryessa et al., 2023; see also Vidmar, 2011).”

    From Biased and biasing: the hidden bias cascade and bias snowball effects (2025) · cites this paper as Berryessa et al., 2023

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4 of the 97 references couldn’t be matched to a known paper.

Research works printed but not linked: 8

  1. Brandenburg, B., & Schotland, R. A. (2008). Justice in peril: The endangered balance between impartial courts and judicial election campaigns. Georgetown Journal of Legal Ethics, 21, 1229.
  2. Carp, R., & Wheeler, R. (1972). Sink or swim: The socialization of a federal district judge. Journal of Public Law, 21, 359.
  3. Johnson, K. R. (2017). How political ideology undermines racial and gender diversity in Federal Judicial Selection: The Prospects for Judicial Diversity in the Trump Years. Wisconsin Law Review, 345.
  4. Kessler, D. K. (2009). The more you know: How 360-decree feedback could help Federal District Judges. Rutgers Law Review, 62, 687.
  5. Opeskin, B. (2020). Dismantling the diversity deficit: Towards a more inclusive Australian judiciary. In G.Appleby & A.Lynch (Eds.), The judge, the judiciary and the court: Individual, collegial and institutional judicial dynamics in Australia. Cambridge University Press.
  6. Sen, M. (2017). Diversity, qualifications, and ideology: How female and minority judges have changed, or not changed, over time. Wisconsin Law Review, 6, 367-399.
  7. Ulmer, J. T., & Johnson, B. D. (2017). Organizational conformity and punishment. The Journal of Criminal Law and Criminolog y (1973-), 107(2), 253-292.
  8. Weiss, J. C. (2006). Tough on crime: How campaigns for state judiciary violate criminal defendants' due process rights. NYUL Review, 81, 1101.

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Authors
Berryessa, C. M., Dror, I. E., & McCormack, C. J. B.
Affiliations
  • Rutgers, The State University of New Jersey (US)
  • University College London (GB)
  • Michigan State Police (US)
Corresponding author
Berryessa, Colleen M.
ORCID
Venue
Legal and Criminological Psychology
Publisher
Wiley
Published
2022-09-12
Volume
28
Issue
1
Pages
1-14
ISSN
  • 1355-3259 (ISSN-L)
  • 2044-8333
DOI
10.1111/lcrp.12226
OpenAlex
W4296012784
Cited by
28
References
97
Citations by year
2026: 3 · 2025: 10 · 2024: 5 · 2023: 5 · 2022: 5
FWCI
38.61
Type
journal article
Language
en
Open access
Licence
Locations
Legal and Criminological Psychology (publishedVersion, cc-by-nc-nd)
Topics
  • Social Sciences › Law › Judicial and Constitutional Studies
  • Social Sciences › Law › Legal processes and jurisprudence
  • Social Sciences › Law › Jury Decision Making Processes
Keywords
judicial bias, former prosecutors, confirmation bias, judicial appointments, judicial impartiality, judicial decision-making, judicial diversity

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