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Effect of the size of the bench on the correctness of court judgments: The case of Israel
International
Review of Law and Economics (1994) 14, 37 l-375
Efiect of the Size of the Bench on the Correctness of Court Judgments: The Case of Israel* DRORA KAROTKIN Department
of Economics,
Bar-Ilan
University, 52900
Ramat-Gan,
Israel
Introduction Judgement
delayed is judgement
voided. (The Talmwl, Snnhedria 95, a)
The long time it takes to process legal cases may result in miscarriage ofjustice and economic loss. In some cases, parties who feel themselves injured circumvent the legal process entirely and resort to such extralegal solutions as threats and force. In criminal cases, long delays in bringing cases to trial undermine the deterrent power of the punishment. In Israel, which does not use a jury system, the requirement that three judges hear certain types of cases is a major contributor to bottlenecks in the legal process. The requirement is intended to enhance the quality of the judgment, but obviously slows down the process of hearing cases. To speed up matters, the types of cases that must be heard by three judges have been reduced in recent years, and the types that can be decided by one judge have been increased. The object of this study was to examine empiricaliy the effect that the number of judges on the bench has on the judicial correctness of their verdicts. This was done by comparing the outcomes of appeals to Israel’s Supreme Court of cases heard in the District Courts by one judge and those heard by three. Supreme Court decisions were used as the criterion for the correctness of the District Courts’ decisions because, in the words of former U.S. Supreme Court justice Robert Jackson, “Our decisions are final not because we never make a mistake. We never make mistakes because our findings are final.” Decision and Appeals Processes in the District Court As a rule, the District Courts deal with all civil or criminal matters not within the jurisdiction of the Magistrates Courts; they also hear appeals against judgments of the Magistrates Courts.’ In the District Courts, certain matters are heard by a bench consisting of three judges, while others are heard by a single judge. Three judges ‘This studyhas been publishedin Hebrewin Bar-l/mLaw Ska’ies IO: 1993. It firstappearedas a doctoraldissertation at Bar-[IanUniversity,the Departmentof Economics,Israel, under the supervisionof Prof.Jacob Pamush. This work was supportedby the SchnitzerFoundationfctrResearchon the Israeli Economyand Society. ‘The Cowl Laws,
1957.
0 1994 Rurtrrworth-Heinemann
372
Effect of court bench size on judgment cmectness
are required for criminal cases where the offense is punishable by imprisonment of ten or more years or by death. Three judges are also required to hear appeals against judgments of the Magistrates Court as well as cases that the President or Vice-President of the District Court directs shall be heard by a bench of three. A single judge is sufficient for the remaining types of cases. The Court Laws stipulate that in every bench of three, one judge shall be the presiding judge. When the decision is not unanimous, the majority view holds. When each of the three judges has a different opinion, then the view of the presiding judge prevails. The judgment of the District Court as a court of first instance is appealable to the Supreme Court. In appeals, the Supreme Court deals solely with the question of whether the decision of the court of first instance was correct on the basis of the factual and legal material at its disposal at the time of its judgment. The Supreme Court may interfere in the lower courts’ decisions under two conditions: when there is a discrepancy between law and facts, and when there is a discrepancy between facts on a first finding and a conclusion. Thus the introduction of evidence that already existed prior to the first judgment is not permitted. As a rule, the court can consider conclusions but not facts on a first finding. The appeal court does not intervene in aspects of the case about which the court of first instance was in a better position to gain a direct impression of the evidence. Appeals against judgments of the District Court are heard by the Supreme Court by a bench of three judges unless the President of the Court has directed that the matter be heard before a greater uneven number ofjudges. The Supreme Court may allow the appeal in whole, may allow it in part, may change or set aside the lower court’s judgment, or may dismiss the appeal. Where the verdict is not unanimous, the majority decision holds; and where there is no majority and each of the judges voices a different opinion, the verdict is rendered by the judge presiding at the appeal. When a matter is originally heard by an appeals bench of three judges, the bench may reach a decision and then decide to hear the matter further before a bench of five or more. The question that the study explores is whether the size of the bench of the court of first instance affects the correctness of its verdicts, as determined by the decision of the Supreme Court. The hypothesis is that it does-that there is a direct association between the size of the bench and the correctness of its judgments. Method
The aim of the study research was to compare the correctness of District Court decisions reached by a bench of three judges and of those reached by a judge sitting alone. For this purpose, only cases that were appealed were considered. Cases that were not appealed were not considered because their correctness was never examined and cannot be assumed. All in all, 964 criminal and civil cases were considered. These were the total number of cases that were appealed to the Supreme Court between 1974 and 1978 and whose decisions were published in Israel’s court records.’ It should be mentioned that not all the judgments of the Supreme Court are published. The
V%kei Dk, 1974-1978 (in Hebrew).
D. cases that are published are generally that may be controversial.
373
KAROTKIN
those with greater
public relevance
and those
Variables The independent variables are the composition of the bench and the type of appeal, whether civil or criminal. The dependent variable is the correctness of the lower court decision. On the operative level, composition is an ordinal variable having the value of 1 or 3; appeal is a nominal variable having the values “criminal” or “civil”; and the correctness of the lower court decision is a quantitative variable. The correctness of the lower court decision was calculated separately for benches of one and benches of three according to the same criteria. The correctness of individual judgments or dissenting opinions on benches of three was not considered because the issue here is the correctness of the final verdict and not of the individual judge. Correctness is scored on a scale of O-100, with 0 given when the lower court decision is overturned in full by all the appeal judges, 50 when it is overturned or accepted in part by all the judges, and 100 when it is dismissed by all the judges. When these conditions varied, calculations were made as follows: 1. Where the decision is not unanimous, the score is weighted by the number of judges accepting and rejecting the appeal. 2. In criminal matters where the judgment is divided into two main parts, the verdict and the sentence, the correctness of the verdict, which is the main issue here, makes up 75% of the score, and the sentence makes up 25%. 3. Where the appeal was dismissed or allowed in part, the initial score is 50, and this score too was weighted by the number ofjudges accepting and rejecting the appeal. 4. An appeal and cross-appeal were weighted as 75% and 25%, respectively. 5. When there was more than one appellant, the score was weighted by the number of appellants with regard to whom the appeal was accepted or rejected. On the basis of these scores, four levels of correctness encompassing the lowest quartile and 4 the highest.
were determined,
with 1
Results To test the hypothesis that the correctness of the judgment is associated with the size of the bench in civil and criminal cases, log-linear analysis for the effects of independent variables on a categorical variable (the Funcat test in the SAS statistical program) was carried out. The findings are presented in Table 1. They show a statistically significant
TABLE I. Analysis of variance (the Funcat test) Source
Intercept Appeal Composition Appeal X composition
Chi-square
Probubilily
239.08 24.56 8.10 8.64
0.0000 0.0000 0.0439 0.0345
374
Effect
of court bench size on judgment
TABLE 2. Chi-square tests for independence Correclnessicom~osition
* df
= 3; chi-square ’ df = 3; chi-square
between the composition and the correctness 1
Civil cases” 1 2 3 4 Total Criminal case@ 1 2 3 4 Total
correctness
3
Total cases
182 55 26 300 563
29 3 3 32 67
211 58 29 332 630
46 21 24 104 195
22 4 11 102 139
68 25 35 206 334
= 4.317; probability = 0.229. = 15.937; probability = 0.001.
relationship between the size of the bench and the correctness of the judgment. They also show a statistically significant interactive effect of the size of the bench and the type of appeal on the correctness of the judgment. This indicates that the type of appeal is an intervening variable. Therefore, the relationship between the size of the bench and the correctness of the decision was tested separately for civil and criminal appeals, using chi-squared tests for independence between composition and correctness level for each type of case. The findings are presented in Table 2. As can be seen, in civil cases there is no significant relationship between the composition of the bench and the correctness of the decision, but in criminal cases there is a significant relationship: Single-judge benches had significantly lower correctness scores than three-judge benches. Discussion Findings showed that the size of the bench affected the correctness of judgment only in criminal but not in civil cases. In civil trials, about the same number of cases (about half) heard by one judge as heard by three reached the upper quartile of correctness. In criminal trials, however, significantly fewer cases heard by one judge (about half) than cases heard by three judges (about three-quarters) reached the upper quartile. These findings support the tendency to relegate most civil cases to single-judge benches but to retain three judges in serious criminal cases. Another finding that emerged from the analyses was that lower court decisions were generally deemed to be more correct in criminal than in civil matters. About half of all the civil cases appealed to the Supreme Court were in the upper quartile of correctness, but about half of the criminal cases heard by one judge and about three-quarters of those heard by three judges were. One reason may be that although technically the appeal process is the same for civil and criminal cases, the implementation may be somewhat different. Civil cases require less proof than criminal ones. In a civil case, it is enough for one party to produce slightly more evidence than the
D.
KAROTKIN
375
other. In a criminal trial, the prosecutor must provide evidence incriminating the accused beyond a reasonable doubt. This difference means that there is more room for interpretation in civil cases than in criminal ones and, consequently, that their lower court verdicts may be more likely to be overturned. The findings must be taken with certain reservations, however. An appeal in the Supreme Court is not always dismissed or allowed on the basis ofcorrectness. Technical considerations may enter into either decision. Moreover, as noted in the introduction, there may be more than one hearing of an appeal, the first time by three judges and then again by a larger bench, and in rare cases the decision at the first appeal may be reversed. Since these second hearings are not published regularly, errors may have entered the calculations in this study. Moreover, though the calculations of correctness were detailed, they did not take into account either the proportion of cases heard by each size bench that were appealed or any of a variety of aspects of correctness, such as whether the error was a gross one (e.g., the disregard of a particular law) or a matter of interpretation. These reservations notwithstanding, the findings provide grounds for recommending that the present policy in Israel of hearing most civil cases by one judge and serious criminal cases by three judges should be maintained.
Review of Law and Economics (1994) 14, 37 l-375
Efiect of the Size of the Bench on the Correctness of Court Judgments: The Case of Israel* DRORA KAROTKIN Department
of Economics,
Bar-Ilan
University, 52900
Ramat-Gan,
Israel
Introduction Judgement
delayed is judgement
voided. (The Talmwl, Snnhedria 95, a)
The long time it takes to process legal cases may result in miscarriage ofjustice and economic loss. In some cases, parties who feel themselves injured circumvent the legal process entirely and resort to such extralegal solutions as threats and force. In criminal cases, long delays in bringing cases to trial undermine the deterrent power of the punishment. In Israel, which does not use a jury system, the requirement that three judges hear certain types of cases is a major contributor to bottlenecks in the legal process. The requirement is intended to enhance the quality of the judgment, but obviously slows down the process of hearing cases. To speed up matters, the types of cases that must be heard by three judges have been reduced in recent years, and the types that can be decided by one judge have been increased. The object of this study was to examine empiricaliy the effect that the number of judges on the bench has on the judicial correctness of their verdicts. This was done by comparing the outcomes of appeals to Israel’s Supreme Court of cases heard in the District Courts by one judge and those heard by three. Supreme Court decisions were used as the criterion for the correctness of the District Courts’ decisions because, in the words of former U.S. Supreme Court justice Robert Jackson, “Our decisions are final not because we never make a mistake. We never make mistakes because our findings are final.” Decision and Appeals Processes in the District Court As a rule, the District Courts deal with all civil or criminal matters not within the jurisdiction of the Magistrates Courts; they also hear appeals against judgments of the Magistrates Courts.’ In the District Courts, certain matters are heard by a bench consisting of three judges, while others are heard by a single judge. Three judges ‘This studyhas been publishedin Hebrewin Bar-l/mLaw Ska’ies IO: 1993. It firstappearedas a doctoraldissertation at Bar-[IanUniversity,the Departmentof Economics,Israel, under the supervisionof Prof.Jacob Pamush. This work was supportedby the SchnitzerFoundationfctrResearchon the Israeli Economyand Society. ‘The Cowl Laws,
1957.
0 1994 Rurtrrworth-Heinemann
372
Effect of court bench size on judgment cmectness
are required for criminal cases where the offense is punishable by imprisonment of ten or more years or by death. Three judges are also required to hear appeals against judgments of the Magistrates Court as well as cases that the President or Vice-President of the District Court directs shall be heard by a bench of three. A single judge is sufficient for the remaining types of cases. The Court Laws stipulate that in every bench of three, one judge shall be the presiding judge. When the decision is not unanimous, the majority view holds. When each of the three judges has a different opinion, then the view of the presiding judge prevails. The judgment of the District Court as a court of first instance is appealable to the Supreme Court. In appeals, the Supreme Court deals solely with the question of whether the decision of the court of first instance was correct on the basis of the factual and legal material at its disposal at the time of its judgment. The Supreme Court may interfere in the lower courts’ decisions under two conditions: when there is a discrepancy between law and facts, and when there is a discrepancy between facts on a first finding and a conclusion. Thus the introduction of evidence that already existed prior to the first judgment is not permitted. As a rule, the court can consider conclusions but not facts on a first finding. The appeal court does not intervene in aspects of the case about which the court of first instance was in a better position to gain a direct impression of the evidence. Appeals against judgments of the District Court are heard by the Supreme Court by a bench of three judges unless the President of the Court has directed that the matter be heard before a greater uneven number ofjudges. The Supreme Court may allow the appeal in whole, may allow it in part, may change or set aside the lower court’s judgment, or may dismiss the appeal. Where the verdict is not unanimous, the majority decision holds; and where there is no majority and each of the judges voices a different opinion, the verdict is rendered by the judge presiding at the appeal. When a matter is originally heard by an appeals bench of three judges, the bench may reach a decision and then decide to hear the matter further before a bench of five or more. The question that the study explores is whether the size of the bench of the court of first instance affects the correctness of its verdicts, as determined by the decision of the Supreme Court. The hypothesis is that it does-that there is a direct association between the size of the bench and the correctness of its judgments. Method
The aim of the study research was to compare the correctness of District Court decisions reached by a bench of three judges and of those reached by a judge sitting alone. For this purpose, only cases that were appealed were considered. Cases that were not appealed were not considered because their correctness was never examined and cannot be assumed. All in all, 964 criminal and civil cases were considered. These were the total number of cases that were appealed to the Supreme Court between 1974 and 1978 and whose decisions were published in Israel’s court records.’ It should be mentioned that not all the judgments of the Supreme Court are published. The
V%kei Dk, 1974-1978 (in Hebrew).
D. cases that are published are generally that may be controversial.
373
KAROTKIN
those with greater
public relevance
and those
Variables The independent variables are the composition of the bench and the type of appeal, whether civil or criminal. The dependent variable is the correctness of the lower court decision. On the operative level, composition is an ordinal variable having the value of 1 or 3; appeal is a nominal variable having the values “criminal” or “civil”; and the correctness of the lower court decision is a quantitative variable. The correctness of the lower court decision was calculated separately for benches of one and benches of three according to the same criteria. The correctness of individual judgments or dissenting opinions on benches of three was not considered because the issue here is the correctness of the final verdict and not of the individual judge. Correctness is scored on a scale of O-100, with 0 given when the lower court decision is overturned in full by all the appeal judges, 50 when it is overturned or accepted in part by all the judges, and 100 when it is dismissed by all the judges. When these conditions varied, calculations were made as follows: 1. Where the decision is not unanimous, the score is weighted by the number of judges accepting and rejecting the appeal. 2. In criminal matters where the judgment is divided into two main parts, the verdict and the sentence, the correctness of the verdict, which is the main issue here, makes up 75% of the score, and the sentence makes up 25%. 3. Where the appeal was dismissed or allowed in part, the initial score is 50, and this score too was weighted by the number ofjudges accepting and rejecting the appeal. 4. An appeal and cross-appeal were weighted as 75% and 25%, respectively. 5. When there was more than one appellant, the score was weighted by the number of appellants with regard to whom the appeal was accepted or rejected. On the basis of these scores, four levels of correctness encompassing the lowest quartile and 4 the highest.
were determined,
with 1
Results To test the hypothesis that the correctness of the judgment is associated with the size of the bench in civil and criminal cases, log-linear analysis for the effects of independent variables on a categorical variable (the Funcat test in the SAS statistical program) was carried out. The findings are presented in Table 1. They show a statistically significant
TABLE I. Analysis of variance (the Funcat test) Source
Intercept Appeal Composition Appeal X composition
Chi-square
Probubilily
239.08 24.56 8.10 8.64
0.0000 0.0000 0.0439 0.0345
374
Effect
of court bench size on judgment
TABLE 2. Chi-square tests for independence Correclnessicom~osition
* df
= 3; chi-square ’ df = 3; chi-square
between the composition and the correctness 1
Civil cases” 1 2 3 4 Total Criminal case@ 1 2 3 4 Total
correctness
3
Total cases
182 55 26 300 563
29 3 3 32 67
211 58 29 332 630
46 21 24 104 195
22 4 11 102 139
68 25 35 206 334
= 4.317; probability = 0.229. = 15.937; probability = 0.001.
relationship between the size of the bench and the correctness of the judgment. They also show a statistically significant interactive effect of the size of the bench and the type of appeal on the correctness of the judgment. This indicates that the type of appeal is an intervening variable. Therefore, the relationship between the size of the bench and the correctness of the decision was tested separately for civil and criminal appeals, using chi-squared tests for independence between composition and correctness level for each type of case. The findings are presented in Table 2. As can be seen, in civil cases there is no significant relationship between the composition of the bench and the correctness of the decision, but in criminal cases there is a significant relationship: Single-judge benches had significantly lower correctness scores than three-judge benches. Discussion Findings showed that the size of the bench affected the correctness of judgment only in criminal but not in civil cases. In civil trials, about the same number of cases (about half) heard by one judge as heard by three reached the upper quartile of correctness. In criminal trials, however, significantly fewer cases heard by one judge (about half) than cases heard by three judges (about three-quarters) reached the upper quartile. These findings support the tendency to relegate most civil cases to single-judge benches but to retain three judges in serious criminal cases. Another finding that emerged from the analyses was that lower court decisions were generally deemed to be more correct in criminal than in civil matters. About half of all the civil cases appealed to the Supreme Court were in the upper quartile of correctness, but about half of the criminal cases heard by one judge and about three-quarters of those heard by three judges were. One reason may be that although technically the appeal process is the same for civil and criminal cases, the implementation may be somewhat different. Civil cases require less proof than criminal ones. In a civil case, it is enough for one party to produce slightly more evidence than the
D.
KAROTKIN
375
other. In a criminal trial, the prosecutor must provide evidence incriminating the accused beyond a reasonable doubt. This difference means that there is more room for interpretation in civil cases than in criminal ones and, consequently, that their lower court verdicts may be more likely to be overturned. The findings must be taken with certain reservations, however. An appeal in the Supreme Court is not always dismissed or allowed on the basis ofcorrectness. Technical considerations may enter into either decision. Moreover, as noted in the introduction, there may be more than one hearing of an appeal, the first time by three judges and then again by a larger bench, and in rare cases the decision at the first appeal may be reversed. Since these second hearings are not published regularly, errors may have entered the calculations in this study. Moreover, though the calculations of correctness were detailed, they did not take into account either the proportion of cases heard by each size bench that were appealed or any of a variety of aspects of correctness, such as whether the error was a gross one (e.g., the disregard of a particular law) or a matter of interpretation. These reservations notwithstanding, the findings provide grounds for recommending that the present policy in Israel of hearing most civil cases by one judge and serious criminal cases by three judges should be maintained.