Judicial fact finding: trial by judge alone in serious criminal cases

Abstract

The ability to choose between trial by jury and trial by judge alone in some jurisdictions presupposes a rational basis for exercising the choice. In this article, the author examines judicial factfinding modalities from comparative and systemic perspectives. The conclusion drawn is that both judicial fact-finders and lay fact-finders process their decision-making similarly. In both instances, fact-finding involves the assimilation of disparate and sometimes complex information. In each case, the drawing of inferences is, of necessity, dependent upon heuristic reasoning. Furthermore, the application of principles of law to proven facts is inexact. However, there are a number of inbuilt safeguards in judicial fact-finding that promote rationality and inhibit cognitive illusion.