The interplay between knowledge, expertise, and intuition in a criminal judicial decision-making process : a perspective from the bench

Abstract

This research focuses on the role knowledge, expertise, and intuition play in a criminal judicial decision-making process through the perspective of retired members of the judiciary. This study seeks to explore what members of the judiciary understand by these three constructs and the interplay between them. The relevance of this study is related to the justice system, in particular the judgments delivered by sentencing magistrates and judges. This phenomenological qualitative study adopted a two-pronged data collection method approach: a discourse analysis of 50 randomly selected judgments delivered between 2017 and 2021 and 12 semi-structured interviews. The purpose of the discourse analysis was to identify and seek interpretation in context of the notions explored. The aim of the interviews was to gain a first-hand account of the three constructs and their application in a criminal judicial decision-making process. The findings reveal that the legislator adopted a restrictive approach with regard to knowledge, experience, and skills. It is concluded that the knowledge base and the experience required should be wider than those adopted by the legislator and are to include extra-legal knowledge and experience which goes beyond professional experience. ‘Analytical skill’ is one of the mandatory requirements to be admitted to the bench. The analysis reveals that members of the judiciary should develop and practise more than one cognitive skill. Magistrates and judges are to interpret and apply the laws, following strictly the letter of the law. This research reveals that members of the judiciary were sensitive to intuitions which, unlike laws, are not written and defined. Intuitions could be verified or corroborated by subjecting them to a deliberative process, including by questioning the persons taking the witness stand. This strategy informs and guides both the in genere inquiries conducted by magistrates and the criminal judicial decision-making process. Intuition may guide members of the judiciary to fill in for any evidence which may not be stated purposely or inadvertently. It is recommended that the minimum number of years of legal practice required to be admitted to the bench be revised upwards. It is recommended also that training programmes in skills development, including the interpretation of human behaviour and non-verbal cues, be introduced. This study concludes that the criminal judicial decision-making and the judgments are enhanced by the introduction of sentencing guidelines with the objective to increase consistency and reduce biases which may arise out of previous knowledge, experience, and intuitions