A courtroom judge is often compared to a sporting referee or umpire, but just how apt is that analogy, really? A cursory comparison reveals some pretty stark similarities: neither the judge nor the referee should have a vested interest in the outcome except for their role in making sure that outcome is absolutely as fair as humanly possible. Equally true is the fact that both the judge and referee may be called upon at certain moments to make judgments to ensure that the respective proceedings remain fair. When digging a little deeper beneath the surface, however, it becomes clear that it is the differences between a judge and referee that are even more striking.
No matter which team wins a sporting event, once decided the matter is fairly well over. True, the match itself may be a springboard for another in a long line toward a championship, but essentially once done the referee need never bother second guessing himself. On the other hand, a judge may preside over a life and death decision. The point is that should a referee make a bad call-even a call that is blatantly obvious in a video replay-it rarely if ever becomes a life-altering event. On the other hand judges very often-if not necessarily routinely-preside over cases in which a guilty man goes free or an innocent man is sentenced to jail. There is much more at stake for a judge than merely making sure that the trial is fair.
How maddening it must be in court systems such as America where a judge must simply sit and listen to evidence and have no power to intervene with questioning of his own when necessary as in the British court system. The American judge is perhaps more suited to the comparison with a referee than the British judge; the American has very little actual power to control or shape the proceedings. He is, in fact, only there to respond to questions of unfairness when the counsel raises them. One can only imagine that American judges envy the power of their British counterparts. And yet that power clearly marks a significant bifurcation between the power of the referee and the power of a judge.
It is true that a referee does not seek to affect the outcome of a sporting event and yet he cannot but affect it unless the game is played flawlessly. When a foul is called and a penalty enforced, the game is forever altered. While that is the duty and that is the rule of the game, what of when a foul is committed but not noticed and penalized? Compare that to the judge. If a judge raises an objection to the credibility of evidence is he not affecting the outcome? On the other hand, if a judge truly questions the credibility of evidence, but refuses to acknowledge it because he believes the defendant to be guilty or innocent and the acknowledgment of faulty evidence may inhibit a verdict one way or another, is that not affecting the outcome?
The court system simply holds much higher stakes than a sporting event and it may be questionable whether that cannot but influence a judge. Objectivity may be the goal in the court system, but is it possible when the human factor is considered? Very few criminal proceedings result in universally unanimous agreement on a verdict. In other words, most trials are not cut and dry like they are on television. The verdict is very often in doubt to the bitter end. The judge overseeing the proceedings may be there to make sure that things run smoothly and fairly, but if everyone else wants justice, then how can a judge be excluded? Indeed, one would imagine there are few people in any country who desire that justice always be delivered within a courtroom than the judge himself.
Is there a difference between affecting the outcome and shaping the outcome? It is agreed that a judge shall not take steps to unfairly prejudice the case one way or another. When a tennis ball call is overruled during a tennis match is one or the other judges trying to consciously affect the outcome or is it merely a case of perspective? The same thing occurs in the courtroom. A judge has the power to shape the presentation of evidence; to ask questions for clarification sake; to call into question certain stakes of credibility. Few honestly believe that the average judge does these things in order to overtly affect the outcome of the case, but a judge by definition-not to mention experience and psychological formation-already has a vested interest in seeing that justice is done. This is not to suggest that every judge willfully or even unconsciously overlooks a matter here or gives too much latitude there in order to see that the guilty are punished despite lack of evidence. It is to suggest, however, that unlike a referee a judge simply cannot expect to practice complete objectivity. There will always be sports fans willing to go to their grave thinking their favorite team was robbed because a referee expressed favoritism in his calls, but most rational people know that unless a referee is taking money to see that a certain teams wins, they are among the most objective judges in the world.
A judge who oversees criminal or civil proceedings stands in stark contrast to the sporting referee, however, because should be on the side of justice. When a judge oversees a case, it is not a question of being for this or that team or player and it is not about being for this or that defendant. But it is about being on the side of simply wanting to see that justice is done; that the bad guys pay for the offenses. We may not want a judge to act in any way that unfairly affects the outcome of a case, but few would honestly deny that they want the judge to referee on the side of justice.