except perhaps in the quantity and reliability of relevant experience on which he or she can draw and in awareness of possible biases that may require discounting.
B. Knowledge of the drug trade
In this case, the court was aided by its knowledge of the drug trade. "Judges in the district courts in the Second Circuit have had extensive experience with the nuances of the drug trade." United States v. Ekwunoh, 813 F. Supp. 168, 178 (E.D.N.Y. 1993), rev'd on other grounds, 12 F.3d 368 (2d Cir. 1993); see also Reena Raggi, Local Concerns, Local Insights: Further Reasons for More Flexibility in Guideline Sentencing, 5 Fed. Sent. Rep. 306, 306 (1993) ("Few judges have as broad an experience dealing with drug importation and large-scale distribution as my colleagues in the Eastern District of New York."). Judges must use this knowledge in reaching decisions. See, e.g., United States v. Jessup, 757 F.2d 378, 386 (1st Cir. 1985) (Breyer, J.) (knowledge of drug trade improves decision-making); Stein v. New York, 346 U.S. 156, 181, 73 S. Ct. 1077, 97 L. Ed. 1522 (1953) (the "jury and the trial judge -- knowing local conditions, close to the scene of events, hearing and observing the witnesses and parties -- have . . . undeniable advantages over any appellate tribunal"). In this case, on remand, the sentencing judge confirmed his beliefs about the drug trade by consulting with his colleagues on the bench. See infra Part X.B.
"The tongue of the witness," it has been said, "is not the only organ for conveying testimony." Jerome Frank, Law and the Modern Mind 109 (1931). Given this obvious truth, jury instructions routinely state that consideration of demeanor is not merely permitted, but expected. Cf. Henriod v. Henriod, 198 Wash. 519, 524-25, 89 P.2d 222, 225 (1939) (to watch attitude and demeanor "is not only the right but also the duty of the trier of facts"); 3A Wigmore on Evidence § 946, at 783 (James H. Chadbourn rev. ed. 1970) (demeanor, "without any definite rules as to its significance, is always assumed to be in evidence"); Fed. R. Evid., art. VIII, Advisory Committee's introductory note (hearsay rule) ("The demeanor of the witness traditionally has been believed to furnish trier . . . with valuable clues."); NLRB v. Dinion Coil Co., 201 F.2d 484, 487-90 (2d Cir. 1952) (Frank, J.) (recounting the history of "demeanor evidence" from Roman times); Olin Guy Wellborn, Demeanor, 76 Cornell L. Rev. 1075 (1991) (summarizing social science data relating to potential uses of demeanor).
Demeanor includes facial expressions, body language, and such matters as a defendant's forcefulness in consulting with an attorney during court proceedings. See, e.g., United States v. Schipani, 293 F. Supp. 156 (E.D.N.Y. 1968) (judge, at a bench trial, confirmed conclusions about susceptibility to coercion by observing and assessing demeanor), aff'd, 414 F.2d 1262 (2d Cir. 1969), cert. denied, 397 U.S. 922, 25 L. Ed. 2d 102, 90 S. Ct. 902 (1970). Triers must decide cases on the basis of evidence, which is on the record, interpreted in light of demeanor, which is not.
A judge may consider the demeanor and actions of a person even when that person is not testifying. In Schipani, the defendant whose demeanor influenced the trial judge's conclusions never took the stand. 293 F. Supp. at 163. The court of appeals agreed with the district court that "the trier's observation of the non-witness defendant's demeanor and general appearance may be -- and almost invariably is -- considered by him in evaluating evidence introduced at the trial." Schipani, 414 F.2d at 1268. The Supreme Court has also implicitly recognized that triers can rely on non-witness demeanor. See Stein, 346 U.S. at 181 (noting advantages of "observing the witnesses and parties") (emphasis added); United States v. Grayson, 438 U.S. 41, 50, 57 L. Ed. 2d 582, 98 S. Ct. 2610 (1978)("One serious study has concluded that the trial judge's 'opportunity to observe the defendant, particularly if he chose to take the stand in his defense, can often provide useful insights into an appropriate disposition.'" (quoting ABA Project on Standards for Criminal Justice, Sentencing Alternatives and Procedures § 5.1, at 32 (App. Draft 1968))). See also Michael & Adler, Real Proof, supra, at 365 ("Demeanor, whether that of a witness while testifying or of a person who is not giving testimony, is . . . a kind of event . . . which occurs in the presence of a jury and is sensibly apparent to it. Consequently, such an event need not be offered and cannot be excluded."). Cf. United States v. Nichols. 56 F.3d 403, slip op. at 4449, 4468 (2d Cir. 1995) ("We must . . . defer to the judgment of the district court, which had the benefit of examining [the defendant] . . . that [the defendant had] . . . the ability to assist his lawyer in mounting his defense.").
1. How judges use demeanor
Gauging credibility is the best known application of demeanor. Ironically, this may be one of its least effective uses. See, e.g., Victor Barall, Book Review, Thanks for the Memories: Criminal Law and the Psychology of Memory, 59 Brook. L. Rev. 1473, 1482 (1994)("The proverbial sweaty palms and averted gaze may be more indicative of language difficulties, cultural differences in etiquette or stowage than of fabrication."); Jeremy A. Blumenthal, A Wipe of the Hands, A Lick of the Lips: The Validity of Demeanor Evidence in Assessing Witness Credibility, 78 Neb. L. Rev. 1157 (1993) (similar). Cf. Quercia v. United States, 289 U.S. 466, 77 L. Ed. 1321, 53 S. Ct. 698 (1933) (reversible error for trial judge to tell jury that wiping hands during testimony "is almost always an indication of lying").
Other applications of demeanor may produce more reliable results. In Stein, supra, the issue before the trial court was whether the defendants' confessions had been coerced. Demeanor was relevant to the susceptibility of the defendants to coercion. Likewise, in an action for an order of physical protection, no judge would ignore a threatening gesture made by the respondent on his way out of the courtroom. In such situations, behavior in the courtroom properly supports inferences about behavior out of court.
2. Demeanor and appellate review
As Professors Michael and Adler have observed:
In observing . . . demeanor and in coming to a conclusion on that demeanor a judge does not use any approved formulas; nor does he practice any art; nor does he proceed in any scientific way. So there is no terminology that he may employ to explain to an appellate court what has taken place.
Michael & Adler, Real Proof, supra, at 102. Thus, while demeanor evidence must be used by the trier in evaluating evidence, it is generally unavailable to the court of appeals in reviewing that evaluation. The trial court cannot "transmit" demeanor to the court of appeals. At most, it can attempt to briefly describe that demeanor, and assume that the court of appeals will give its judgments adequate deference. It is desirable at times, for purposes of assisting appellate review, for the judge to describe demeanor that departs from that suggested by the transcript.
The opportunity, which exists in the trial court alone, to observe and assess credibility explains in part the reluctance of appellate courts to overturn findings of fact. See Olin Guy Wellborn, Demeanor, 76 Cornell L. Rev. 1075, 1077 (1991) ("The opportunity of the trier to observe the demeanor of the witnesses is a principal basis for the deference accorded by reviewing courts to factual determinations of trial courts . . . ."); see also United States v. Pfeiffer, 50 F.3d 3 (2d Cir. 1995) (unpublished) ("Deference is owed to the district court's determinations with respect to competence when they are based on observation of the defendant during the proceedings.") Since appellate courts cannot withhold "permission" to consider demeanor, they must allow for the existence of factors not discernible from the written record.
D. Assumptions about criminal behavior
Every sentencing judge receives daily instruction in criminology. He or she generally takes from this continuing education the strong belief that many criminals lack flexibility. Some will repeat the same crime, in the same way, until caught. Criminologists have long noted this tendency. See, e.g., Arnold Miles, How Criminals Are Caught 32 (1940) (tendency to form habits well-known to police); Charles E. O'Hara, Fundamentals of Criminal Investigation 597 (1970) (criminals are "loath to alter . . . operational procedure"). This propensity to repeat criminal conduct combines two distinct phenomena. First, criminals, like many others, are creatures of "habit." See generally, Don C. Gibbons, Society, Crime, and Criminal Careers: An Introduction to Criminology (1973). Second, criminals, like rational businesspeople, tend to adhere to methods that have worked. See Mark Moore, "The Pusher As a Rational Business Man," in Crime in Society 716, 741 (Leonard D. Savitz & Norman Johnston eds., 1978) (describing criminals as choosing "portfolios of tactics" that maximize profits); C. Peter Rydell & Susan S. Everingham, Controlling Cocaine: Supply Versus Demand Programs 59 (Report of Rand Drug Policy Research Center, 1994) ("Suppliers have learned how to run their business more efficiently over time."). See also discussion of economics of smuggling in Part X.C, infra.
The inflexibility of many criminals was described by Wigmore. See, e.g., J.H. Wigmore, The principles of Judicial Proof or the Process of Proof as Given by Logic, Psychology, and General Experience 161 (2d ed. 1931) ("It is now well known to detective police officials that professional criminals tend to limit their misdeeds to special kinds and methods. In short, they develop a habit with respect to the crime.") (emphasis in original); id. at 161 n.1 ("[This] fact has of course been known ever since the institution of organized police."). Such observations underlie Federal Rule of Evidence 404, which permits introduction of evidence of prior acts for a number of purposes, including identity -- that is, the likelihood that a crime was committed by a defendant known to have committed a similar crime in a similar manner in the past.
The reverse inference -- that a defendant known to have committed previous crimes used the same method of operation on each occasion -- is permissible in some cases. Every decision by a court allowing the introduction of evidence of prior crimes is an endorsement of the theory that criminals develop routine methods of operation. See, e.g., People v. Peete, 28 Cal. 2d 306, 169 P.2d 924, cert. denied, 329 U.S. 790, 67 S. Ct. 356, 91 L. Ed. 677 (1946) (strikingly similar murders committed 20 years apart); id., 28 Cal. 2d at 328 (Carter, J., dissenting) (arguing, unconvincingly, that the defendant would not have used the same "m.o." that resulted in earlier arrest). Assumptions about modus operandi underlie much of the work of law enforcement and judicial personnel.
VI. How decision-makers learn and decide
A. Inferences based on prior information and training
Recently, Judge Frank M. Coffin applauded another judge's "candid recognition of the judge's 'hunch' . . . [,] that intuitive flash of understanding which makes the jump spark connection between question and decision." Frank M. Coffin, Judging Books, A.B.A. Judge's J., Spring 1994, at 47 (reviewing Edward F. Hennessey, Judges Making Law (1994) (quoting Joseph Hutcheson, The Judgment Intuitive: The Function of the "Hunch" in Judicial Decision, 14 Cornell L.Q. 274, 278 (1929))). What is sometimes called a hunch is an important part of judging -- given the need to reach initial determinations quickly. See 1A Wigmore on Evidence § 25, at 955-56 (Peter Tillers rev. ed. 1983) (time constraints make judging as much art as science). A trial judge's "hunch" is generally based on the evidence and experience, albeit with the inferential chain unstated. As Justice Holmes recognized, "many honest and sensible judgements . . . express an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions, . . . which may be beneath consciousness without losing their worth." Chicago B & O Ry. v. Babcock, 204 U.S. 585, 598, 51 L. Ed. 636, 27 S. Ct. 326 (1907); see also Oliver W. Holmes, Book Review, 5 Am. L. Rev. 539, 540 (1871), reprinted in Holmes Uncollected Papers 90 (Shiver ed. 1936) ("Judges know how to decide a good deal sooner than they know why."). Thus a hunch, when its underlying assumptions are examined and articulated, may be validated as a sound conclusion. As Justice Shientag observed 50 years ago:
During the course of a trial or the argument of a motion or an appeal, there is a constant interplay of intelligence, sensibility and intuition. When at the conclusion of a trial or argument the judge has what is called a "first impression," that may be the result of quick reasoning by a disciplined mind; it may be an inference made so rapidly as to be almost instantaneous; it may be an intuition, depending for its strength on the background of learning and experience behind it; it may be shrewd, native horse sense; or it may be little more than a guess. The conscientious judge checks up his first impressions.
Bernard L. Shientag, The Personality of the Judge 74 (1944). Justice Shientag concluded:
The term "judicial hunch" . . . is misleading. . . . The use of that term tends to underestimate the logical quality of the judge's thought and judgment. . . . Properly used and understood, it is a great aid to reflective reasoning, and instead of merely giving the judge an easy way out of his difficulty, it adds clarity and strength and validity to the conclusion he finally reaches.
Id. at 73-74.
B. Methods of reaching conclusions
In using available information to arrive at an estimate of the probability that a material proposition is true, a judge may employ a number of analytic methods. Several are described below. None in itself fully explains how the mind of the trier works in any case. Each, however, provides a useful partial view.
1. Classical step-by-step analysis
A trier's conclusion -- whether presented as the "hunch" or elucidated in a full opinion -- utilizes observed evidence, draws inferences from that evidence based upon hypotheses predicated upon knowledge of the world (or supplied by experts), and results in an informed decision. Wherever practicable, a conclusion should be tested and explained. See, e.g., John H. Mansfield, Norman Abrams, Margaret E. Berger, et al., Cases and Materials on Evidence, ch. 1 (8th ed. 1988); James Bradley Thayer, Select Cases on Evidence at the Common Law (1892); Edward M. Morgan, John M. Maguire, et al., Cases and Materials on Evidence (4th ed. 1957); John M. Maguire, James H. Chadbourn, et al., Cases and Materials on Evidence (6th ed. 1973). In the language of classical forensic analysis, a line of proof necessarily consists of a series of minor and major premises and conclusions -- a sequence of inferential steps ending in an estimate of the probability of a material (ultimate) fact. See, e.g., Jerome Michael & Mortimer Adler, The Nature of Judicial Proof (Colum. L. School 1931); lA Wigmore on Evidence § 37.3, at 1026-30 (Peter Tillers rev. ed. 1983); Jerome Michael & Mortimer Adler, The Trial of an Issue of Fact: I and II, 34 Colum. L. Rev. 1224, 1252, 1462 (1934).
Except when provided by experts, major premises, or hypotheses, are generally based on background knowledge, which will vary from trier to trier. See, e.g., Peter Tillers, Webs of Things in the Mind: A New Science of Evidence, 87 Mich. L. Rev. 1225, 1226 (1989) ("Theory of relevancy and inference . . . put[s] great emphasis on the role of experience and on generalizations based on experience.").
The classical analysis of scholars such as Michael and Adler relies on a series of inferential steps, each utilizing a probans, a hypothesis, and a probandum to prove or disprove a material proposition. The analysis employs the following terminology:
Statement about a matter of fact which is a specific example falling within the general class which is one of the elements of the applicable rule of law.