Can a trier-of-fact in a U.S.-based criminal trial overcome the observer's paradox in order to represent itself as an impartial trier-of-fact?

Question

This post is to ask the entitled question, "Can a trier-of-fact in a U.S.-based criminal trial overcome the observer's paradox in order to represent itself as an impartial trier-of-fact?" I propose that the answer to this post's question is the following: A trier-of-fact in a U.S.-based criminal trial cannot overcome the observer's paradox in order to represent itself as an impartial trier-of-fact because the trier-of-fact would not have a valid solution to the problem of the criterion in order to represent itself as an impartial trier-of-fact, whereby the expression "the trier-of-fact would not have a valid solution to the problem of the criterion in order to represent itself as an impartial trier-of-fact" may be considered synonymous with the expression "there was, is, and will be insufficient evidence to the contrary." What has significantly led to this post's question has been a reflection on a recent journal entry of mine. By some route, for what route I do not recall, I have come to read of the observer's paradox in relation to my journal's citation of the "observer effect." The observer's paradox is similar to the observer effect in that in an effort for an observer to accurately observe a system, the observer interjects its existence into the thing being observed (because of the one or more physical interactions between the observer and the thing being observed) which leads to observational bias being generated as a result of any effort to make an accurate observation of the thing being observed. The question posted by the paradox is how to make an observation of a system without becoming part of that system, whereby it may be considered that the desire is to be able to make an observation of the system independent of becoming involved with the system. Relative to this StackExchange post's question, the "observer" is the trier-of-fact in a U.S.-based criminal trial. A trier-of-fact may be a judge or a jury during the trial stages of a U.S.-based criminal case: I also consider that there might be a panel of judges, but I'm not aware of any U.S.-based criminal cases like such. According to U.S. law, due process (as per the 5th and 14th amendments of the Constitution of the United States of America) is required to occur, respectively, in federal and state criminal cases. As part of the need for due process in a federal criminal case, due process in a federal criminal case requires that a trier-of-fact in a criminal trial be impartial, as per the 5th and 6th amendments of the Constitution of the United States. In a state criminal case, the 14th amendment of the Constitution of the United States requires that a trier-of-fact be impartial. Relative to the observer's paradox, it is my presumption that no trier-of-fact can overcome it: This implies that observer bias occurs in any efforts by the trier-of-fact for the said trier-of-fact to impartially adjudicate over a U.S.-based criminal case.

Let's place the observer's paradox into perspective. According to the need for due process in U.S. criminal law, a trier-of-fact in a U.S.-based criminal trial is supposed to impartially observe evidence in order to determine whether or not the evidence is representative of actual evidence of a defendant's guilt. However, in any effort to do such, according to the observer's paradox, the trier-of-fact will interject its bias (or "its partiality") into its observation of the evidence in the case, thus generating an observer's bias as to whether or not the evidence that has been presented is representative of actual evidence of a defendant's guilt, whereby said observer bias would prevent a measurement of whether or not the the evidence that has been presented is represented of actual evidence of a defendant's guilt without said observer bias. This becomes very relevant when an observer is determining whether or not it is reasonable to consider presented evidence to be representative of actual evidence of or not of a defendant's criminal guilt.

Based on what I have studied from epistemology, in order for a trier-of-fact to over-come the observer's paradox, I presume the trier-of-fact would need a valid solution to the problem of the criterion because for a trier-of-fact in a U.S.-based criminal trial to have a valid solution to the problem of the criterion would enable the said trier-of-fact to know whether or not its observation of anything related to the criminal trial is accurate. However, relative to there being any valid solution to the problem of the criterion, I have read that "...there are no known solutions to the problem of the criterion, and it appears, properly speaking, unsolvable." You should aid in helping to provide a solution to this StackExchange post's question because it will aid in bringing down the oppressive system that is the U.S. criminal justice system.

Answer 1

Firstly, the observer paradox is quite different from observer bias. The former means that there can be limits on the extent to which one can observe a subject without perturbing it, and I cannot see what relevance it has to criminal trials. Secondly, questioning the justice system in terms of something as abstract and vague as the problem of criterion seems fruitless. You might as well ask whether an engineer can build a safe bridge without solving the problem of criterion, or whether I can trust my bank to make accurate calculations of my deposits and withdrawals given Gödel's incompleteness theorem and the unresolved ontological status of numbers.

The issue of observer bias is a good practical basis for assessing the fairness of the justice system, and there is no doubt that the system is biased: there are countless cases that suggest it most convincingly. The pressing questions concern how we best expose, quantify and reduce the impact of bias and other forms of random and systematic unfairness in the justice system. There is no formal standard by which impartiality in the justice system is gauged. Practically, whether when and how improvements are made is determined by hundreds of competing factors against a background of general apathy by the voting public. Judges can claim to be impartial triers of fact because the general passive consensus of the public accepts that they are, regardless of whether they meet some academic notion of impartiality.

In any case, let's accept what you assert as true- that judges cannot be impartial because they do not have an answer to the unanswerable problem of criterion. What you are effectively saying is that judges do not meet an impossibly high standard of impartiality. What is either new or useful in that observation?

Answer 2

I'm going to sketch out a rebuttal, mostly because the epistemological dimension of the philosophy of law is, in my mind, second only to science in terms of import in understanding actual epistemological practice and distributing various weights to various theory. Praxis should guide theory if the goal is to have a better-than-adequate truth-conditional model of an actual language community. Secondly, outside of lexicographers, no one probably takes a bigger interest in the art of definition. So, let's start with the definition of 'judicial impartiality' which you fail to provide. Your claim boils down to 'the observer paradox makes judical impartiality impossible'. This is another hairsplitting argument that of course would be rejected with laughter in camera.

While I'm no legal scholar, I will cite The Dimensions of Judicial Impartiality Charles Gardner Geyh in a completely non-authoritative fashion as I have no mastery of literature which speaks to judicial impartiality. I open with:

In an era when “we are all legal realists now,” perfect impartiality—the complete absence of bias or prejudice—is at most an ideal; “impartial enough” has, of necessity, become the realistic goal. Understanding when imperfectly impartial is nonetheless impartial enough is aided by conceptualizing judicial impartiality in three distinct dimensions: a procedural dimension, in which impartiality affords parties a fair hearing; a political dimension, in which impartiality promotes public confidence in the courts; and an ethical dimension, in which impartiality is a standard of good conduct core to a judge’s self-definition.

Thus, not surprisingly, your attack on judiciary impartiality would prima facie be discounted because your position presumes some absoluteness, the sort of object absoluteness that Wilfrid Sellars rejects in his attacks on given-ness, often under the appellation of the "myth of the given". The short view from critical realism is that there is no foundation of certainty in observation, even those of the lower consciousness that might be unencumbered by theory ladenness which is more conceptual in nature. So, your thesis is adequate if you are in the business of making logical paradoxes and injecting the ills of language into your philosophy as Wittegenstein himself recognized. Relevant from the paper is this:

In 1974, author Lillian Hellman wrote that “[n]obody outside of a baby carriage or a Judge’s chamber can believe in an unprejudiced point of view.”4 As jaded as she may have meant to sound nearly four decades ago, in a skeptical age when social science research has debunked the notion that judges entertain an “unprejudiced point of view,” the distinction she drew between judges and the general population seems almost naïve. Is the realm of the impartial now peopled only with infants—is judicial impartiality a fiction, or worse, a scam?

Thus, between a contemporary epistemological position which rejects the givens of your arguments about impartiality from a professional philosophical perspective, so too do academics and practitioners of law reject your essential premise regarding some absolute notion of bias-free existence as meaningless in practice.

Therefore, under the definition of judicial impartiality provided by the paper in question, your thesis fails on account that no part of your argument addresses specifically the procedural, political, or ethical dimensions of being a trier of fact. Again, your attacks, like your excessively skeptical demands that due process be predicated upon infallibilism, a response that drew my rebuke last time, again, you seek to inject an excessively impractical demand of infallibilism without so much an attempt to adequately delineate what you believe constitutes 'judical impartiality'. So, you can reject Gyeh's framework for assessing impartiality, but you would, in order to make your argument cogent, provide one before attempting to show that criteria have been met to declare it to be the universal state of affairs in legal practice.

But even if you manage to do that, the second pillar of your thesis is flawed. The observer paradox isn't meant to address social processes, but rather social research. The difference is that in the context of the social process of the execution of law under the umbrella of judicial impartiality, the judge absolutely should have an effect on the process. The judge is no mere observer of the practice of law as trier of fact, but is specifically given robust authority to direct the process. Judges be bosses, and what they do does and should influence the process. Where the observer paradox comes into play is an attempt by thinkers to show causality independence of the empirical process of research. That's simply not the role of a trier of fact, otherwise we would call them researchers of fact. In fact, judges are fact makers!

Triers of facts are not supposed to be causally aloof. They are meant to ensure the impartial administration of justice. The are meant to CAUSE the impartial administration of justice, and from the perspective of legal realism, that justice is not only pragmatic in terms of impartiality, but equity too, since relief may take in to consideration the broader needs of society. We expect our judges to be relatively free of politics, ethical transgressions, and to honor due process (procedural, substantial, protections from vagueness, and incorporation). Our expectations are so strong that we EXPECT our judges to be BIASED in favor of these dimensions of impartiality. For to be impartial requires a stance partial to impartiality, lest a judge is merely some capricious and random actor.

Thus, you have given an impossible implication of a definition of judicial impartiality, and then applied an epistemological concern that is suited to scientific appraisal of causal structure which is not the role of a trier of fact at all. Therefore, your thesis, while prima facie raises concerns that intimate that human cognitive bias that we all suffer from is grounds for declaring there is no such thing as fairness at all. And for all the injustice in the world, the latter point of contention simply rings hollow.

Answer 3

A trier-of-fact in a U.S.-based criminal trial would not, cannot, nor will be able to (reasonably) overcome the observer's paradox (or, perhaps better said, "the probe effect" if but an extrapolation of the "observer effect" in physics if but measurement error -- that is caused, if but partially, by the introduction of the trier-of-fact's partiality into the trier-of-fact's observation) in a U.S.-based criminal trial in order to (in the past, present, and/or future) represent itself as an impartial (if but "impartial enough" if but to be reasonably impartial) trier-of-fact in a U.S.-based criminal trial because no trier-of-fact would, can, nor will be able to reasonably overcome its partiality in order to reasonably overcome the observer's paradox caused by its partiality.

I present the following polysyllogism in defense of my thesis:

• There would not, cannot, nor will be anything that could, can, and/or will be able to "reasonably control for enough of" (or, in other words, reasonably overcome) the one or more extraneous variables in anything (such as a calibration device or mechanism) that might be used in an effort to reasonably control for enough of the trier-of-fact's extraneous variables that would, can, and/or will significantly contribute to its partiality in a U.S.-based criminal trial.
• There would not, cannot, nor will be anything (such as any postulated to exist "free will") that could, can, and/or will reasonably control for enough of the one or more trier-of-fact's extraneous variables that would, can, and/or will significantly contribute to the trier-of-fact's partiality in a U.S.-based criminal trial in order for the said trier-of-fact to have been, be, and/or in the future be able to reasonably overcome its partiality.
• No trier-of-fact would, can, nor will be able to reasonably overcome its partiality in order to reasonably overcome the observer's paradox caused by its partiality.

Therefore, a trier-of-fact in a U.S.-based criminal trial would not, cannot, nor will be able to (reasonably) overcome the "observer's paradox" in a U.S.-based criminal trial in order to (in the past, present, and/or future) represent itself as an impartial trier-of-fact in a U.S.-based criminal trial.

It is presumed that my aforementioned thesis in this answer may be tested (or "examined for falsifiability as to the thesis at the least being scientifically valid") through the following thesis:

No trier-of-fact in a U.S.-based criminal trial would, can, nor will be able to be said (or "reasonably proven") to be reasonably impartial (or "impartial") because no one would, does, nor will know if a trier-of-fact in a U.S.-based criminal trial is reasonably impartial -- in order for anyone to have said, say, and/or in the future say that a trier-of-fact in a U.S.-based criminal trial is reasonably impartial, whereby it is presumed that due process requires that such knowledge can be had (at the least, during the time of the trial that the trier-of-fact is in) in order for the said trier-of-fact in the U.S.-based criminal trial to be qualified as impartial (or "reasonably impartial").

I present the following polysyllogism in defense of that thesis:

• There was, is, and will be insufficient evidence to prove that anyone had, has, and/or will have enough reasonableness (or "authority") in order for said anyone to have had, have, and/or in the future have a valid solution to the problem of the criterion.
• No one had, has, nor will have enough reasonableness (or "authority") in order for said anyone to have had, have, and/or in the future have a valid solution to the problem of the criterion.
• No one had, has, nor will have a valid (if but reasonable) solution to the problem of the criterion in order to (in the past, present, and/or future) reasonably qualify what it means to know if a trier-of-fact in a U.S.-based criminal trial is reasonably impartial, whereby any resolve (other than from a reasonable solution to the problem of the criterion) by a someone (such as the Court) to derive knowledge of something (such as whether or not a trier-of-fact is reasonably impartial) would be “too arbitrary” (or “unreasonable”) of a resolve because such resolve would violate due process, whereby such assumption may be derived from the assumption that if a trier-of-fact asserts the claim that someone who does not have a reasonable solution to the problem of the criterion is not non-willfully ignorant of the law, then said someone’s right to due process will have been violated by that trier-of-fact because said someone did not have a reasonable solution to the problem of the criterion in order to be willfully knowledgeable of the law, whereby it is presumed that only a reasonable solution to the problem of the criterion can allow someone to have knowledge of the law without the possibility of error because such prevents arbitrary assumptions from being used from any resolve that does not come from a solution to the problem of the criterion in an effort to derive knowledge of what the law is that might present error, whereby such assumption may be derived from the assumption that there was, is, and will be insufficient evidence to the contrary.
• It was not, is not, nor will be possible for anyone to have had, have, and/or in the future have a reasonable standard for knowing something with which to use in order to know if a trier-of-fact in a U.S.-based criminal trial is reasonably impartial.
• No one would, does, nor will have a reasonable standard for knowing something with which to use in order to know if a trier-of-fact in a U.S.-based criminal trial is reasonably impartial.
• No one would, does, nor will know if a trier-of-fact in a U.S.-based criminal trial is reasonably impartial -- in order for anyone to have said, say, and/or in the future say that a trier-of-fact in a U.S.-based criminal trial is reasonably impartial, whereby it is presumed that due process requires that such knowledge can be had (at the least, during the time of the trial that the trier-of-fact is in) in order for the said trier-of-fact in the U.S.-based criminal trial to be qualified as impartial (or "reasonably impartial").

Therefore, no trier-of-fact in a U.S.-based criminal trial would, can, nor will be able to be said to be reasonably impartial.