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The Measure of the Judge An empirically-based framework for

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The Measure of the Judge An empirically-based framework for

75 Iowa L. Rev. 653

    Iowa Law Review

    March, 1990

    THE MEASURE OF THE JUDGE: AN EMPIRICALLY-BASED FRAMEWORK FOR

    EXPLORING TRIAL JUDGES' BEHAVIOR

     12Peter David Blanck, Robert Rosenthal, 34Allen J. Hart, Frank Bernieri

    Copyright ? 1990 by the University of Iowa (Iowa Law Review);

     Peter David Blanck, Robert Rosenthal, Allen J. Hart, and Frank Bernieri

    "A judge ... is more than a moderator.... Justice does not depend upon legal dialectics so much

    as upon the atmosphere of the courtroom, and that in the end depends primarily upon the 5judge."

    I. INTRODUCTION

The courts, legal practitioners, scholars, and social scientists have longrecognized that judges' 6behavior, both verbal and nonverbal, may have importanteffects on trial processes and outcomes.

    For example, appellatecourts have cautioned repeatedly that juries in criminal trials accord even themost subtle behaviors of the judge great weight and deference. One judgeconcluded that juries "can be easily influenced by the slightest suggestioncoming from the court, whether it be a nod of 7the head, a smile, a frown, or aspoken word."

     1 Associate Professor of Law, University of Iowa College of Law. J.D. 1986, Stanford University; Ph.D. 1982, Harvard University. The authors thank Michael Saks and Steven Semeraro for their helpful comments. 2 Professor of Psychology, Harvard University. Ph.D. 1956, U.C.L.A. 3 Graduate Student in Psychology, Harvard University. 4 Assistant Professor of Psychology, Oregon State University. Ph.D. 1988, Harvard University. 5 Judge Learned Hand in Brown v. Walter, 62 F.2d 798, 799-800 (2d Cir.1933). 6 See Note, The Appearance of Justice: Judges' Verbal and Nonverbal Behavior in Criminal Jury Trials, 38 Stan.L.Rev. 89, 97-101 (1985) (authored by Blanck, Rosenthal & Cordell) (relatively little systematic empirical study has been devoted to describing trial judges' behavior in actual trials) [hereinafter Appearance of Justice]; see also H. Kalven & H. Zeisel, The American Jury (1966) (classic study of judges and juries); J.P. Ryan, A. Ashman, B.D. Sales & S. Shane-DuBow, American Trial Judges: Their Work Styles and Performance (1980) (demonstrating a heightened sensitivity to understanding and analyzing judges' behavior); Blanck, The "Process" of Field Research in the Courtroom: A Descriptive Analysis, 11(4) Law & Hum.Behav. 337, 338 (1987) (discussing process of studying judges' behavior in "live" courtroom setting) [hereinafter The Process of Field Research]; Blanck, Off the Record: Nonverbal Communication in the Courtroom, 21 Stan.Law. 18, 21 (1987) (reprinted in 16(1) Student Law. 8 (1987)) (same) [hereinafter Off the Record].

     7 State v. Wheat, 131 Kan. 562, 569, 292 P. 793, 797 (1930) (Jochems, J., dissenting).

    Over the years, the courts have struggled, on a case-by-case basis, to assessthe impact, style, and consistency of judges' behavior. In the absence of apractical, reliable, and valid framework, courts remain reluctant to review acontention that a judge's verbal or nonverbal behavior somehow may 8haveunfairly influenced the trial process.

    This article first describes an empirically-based framework forexploring trial judges' behavior in 9actual trials. We then presentsome preliminary and exploratory results derived from our ongoing studies ofjudges' behavior with special emphasis on two areas of analysis: (1)descriptive--whether there are distinct and interpretable "global dimensions"of judges' behavior, particularly in the way judges relate to their juries,and (2) predictive--whether the delineated

    "global dimensions" of judges'behavior can be used to predict (or be predicted by) other more fine-grained"micro" nonverbal behaviors of these same judges, such as eye contact withtheir 10juries.

     In the last section, we discuss how the framework we present may prove usefulto courts, legal 11practitioners, scholars, and social scientists studyingjudges' behavior. The final section also

    highlights how our frameworkmay help in the assessment and implementation of the recently 12adoptedamendments to the Model Code of Judicial Conduct (1990), set forth in PartIV(A).

    These amendments relate to the relationship between trialjudges' verbal and nonverbal behavior and the appearance of courtroom fairness.

    II. A FRAMEWORK FOR THE STUDY OF TRIAL JUDGES BEHAVIOR

    A. Studying the Appearance of Justice

The data employed in this article were gathered as part of an ongoing studyof judges' behavior, in 13which we videotaped portions of actual criminalmisdemeanor jury trials. Our initial research 14explored what has beendescribed by the courts as "the appearance of justice." That is,judges'

     8 See Appearance of Justice, supra note 2, at 97-101; Note, Removing Temptation: Per Se Reversal for Judicial Indication of Belief in the Defendant's Guilt, 53 Fordham L.Rev. 1333, 1334-36 (1985).

     9 Others have studied judges' working styles and have found, not surprisingly, that their qualitative methods demonstrate that judges vary in working styles. See Atkinson & Neuman, Judicial Attitudes and Defendant Attributes: Some Consequences for Municipal Court Decision-Making, 19 J.Pub.L. 69-87 (1970). The empirical study presented in this article is the first attempt to support this proposition by employing quantitative assessment of judges' actual behavior. See infra notes 102-09 and accompanying text. 10 See infra notes 74-100 and accompanying text. 11 See infra notes 105-15 and accompanying text. 12 See infra notes 112-14 and accompanying text.

     13 For a detailed review of the methodology, see The Process of Field Research, supra note 2, at 342-51; Appearance of Justice, supra note 2, at 101-13.

     14 Offutt v. United States, 348 U.S. 11, 14 (1954).

    15behavior or conduct must "appear" to the trial participants to be fair and impartial. In certain

    extreme circumstances, courts have heldthat the "appearance" of judicial unfairness alone may 16deny defendants theirconstitutionally protected right to a fair and impartial trial. Thus, the 17appearance of unfairness alone may be grounds for reversal.

    During a criminal jury trial, judges, like other human beings, developbeliefs and attitudes about certain aspects of the trial process, such as aboutthe defendant's guilt or innocence. The development of such beliefs is notnecessarily bad. We want humane and concerned judges sitting in our courts.However, these beliefs sometimes influence (or "appear" to influence) judges' behavior in relating to juries, often in ways difficult for trial counsel todocument for the appellate record. Our initial studies explored therelationship between judges' behavior and trial fairness as perceived bycounsel and their clients, jurors, and the judges themselves. This line ofstudy described how judges may reveal certain beliefs or attitudes to juriessolely through their nonverbal 18behavior at trial.

    Our earlier studies were useful for exploring the longstanding conceptionthat procedural fairness, at least in terms of judges' behavior, is not a fixedrequirement unrelated to the circumstances and individuals involved in aparticular trial. Not surprisingly, our earlier studies and discussions withparticipating judges showed that a fair and impartial trial is always thegoal. Nevertheless, it seemed to us that a judge's degree of involvement orgeneral style of behavior at trial represents an 19ongoing process of judgmentand discretion, guided by legally recognized limits. It is from

    thisperspective and empirical background that we focus our exploratory analyseshere toward the development of a practical framework for describing andassessing judges' behavior.

     15 We have defined trial participants to include judges, counsel, parties, witnesses and jurors. Elsewhere, we have included the press and the public generally to be "participants" in the trial experience. See Blanck, What Empirical Research Tells Us: Studying Judges' and Juries' Behavior, 40(2) Am.U.L.Rev. XX (forthcoming 1991). 16 See Bollenbach v. United States, 326 U.S. 607, 612 (1946); see also State v. Larmond, 244 N.W.2d 233, 236 (Iowa 1976) (defendant is not required to show that jurors were actually prejudiced by judge's behavior but merely that jurors could have inferred judicial bias); see generally Appearance of Justice, supra note 2, at 90 n.n. 4, 5. 17 See Bollenbach, 326 U.S. at 614 (fact that evidence may have supported conviction is irrelevant if appropriate standards and procedures are not followed); see also Larmond, 244 N.W.2d at 236; see generally Appearance of Justice, supra note 2, at 89-90. 18 Appearance of Justice, supra note 2, at 91-92. Through our collaborative efforts with real judges, we are beginning to understand what many judges and practitioners already intuitively "know" about the trial process. We hope our efforts may aid judges, courts, and other trial participants to more fully understand and assess the impact of their behavior during the trial and to understand the values and behaviors underlying the "appearance of justice."

     19 Appellate courts have attempted to balance a number of factors in assessing the propriety of a judge's behavior during a jury trial. Four such factors have been applied: "(1) the materiality or [legal] relevance of the behavior, (2) the empathic or overbearing nature of the behavior, (3) the efficacy of any curative instruction used [by the judge] to correct the error, and (4) the prejudicial effect of the behavior ... in light of the trial as a whole." Appearance of Justice, supra note 2, at 95-96. As is often the case with such "sliding scale" assessments, different courts have weighed the importance of these factors differently depending on the circumstances of the case. E.g., United States v. Olgin, 745 F.2d 263, 268-69 (3d Cir.1984) (appellate court concluded it proper to weigh the totality of these four factors in determining whether the "quantum of harm" from a trial judge's behavior amounted to reversible error), cert. denied, O'Broda v. United States, 471 U.S. 1099 (1985).

    B. Studying Trial Judges' Behavior

    To guide our study of judges' behavior we developed a working theoreticalmodel. As described in greater detail in Part IV(B)(2), this model orconceptual framework helps identify the variables 20that need to be studied toachieve a more fine-grained understanding of trial judges' behavior.

    The basic elements of this framework are: (A) the background variables of the trial participants; (B) the judge's attitudes and beliefs about trial processes prior to trial outcome; (C) the verbal and nonverbal behaviors that communicate the judge's attitudes and beliefs to the trial participants, and, in particular, to the jury; (D) the outcome of the trial itself, in terms of the jury's decision; (E) the judges' attitudes and beliefs about trial processes after trial outcome; and (F) the sentence 21imposed by the judge.

    The analyses in this article are designed to aid in the development of apractical description of judges' verbal and nonverbal communicative behavior.That is, an exploration of the "C" variable in our working model. Moreover,the analyses extend the descriptive power of our model by 22exploring (1)judges' "global" or basic behavioral dimensions in relating to juries, and (2) judges' 23"micro" or more fine-grained nonverbal behaviors in relating to their juries. The analyses also

    examine the relationship between these two types of variables.

    Our research framework attempts to maximize the "external validity," orthe real-world generalizability, of our findings and the precision of ratingjudges' behavior. In the present study, this goal is achieved by examining thevideotapes of actual trials and employing independent 24groups of raters toassess the communicative content of the videotapes. Judges' 25behavioranalyzed in this study came from five California state court judges who were 26videotaped delivering final pattern jury instructions to jurors inthirty-four criminal trials.

     20 See Appearance of Justice, supra note 2, at 101-02. The working model, described elsewhere in detail, is intended to serve generally as a theoretical guide for researchers and is not intended as a hard-and-fast predictive model for practitioners. Id. at 102. See generally The Process of Field Research, supra note 2, at 342-43. 21 See infra notes 128-35 and accompanying text. 22 For example, as embodied in the general communicative dimensions of "warmth" or "professionalism."

     23 For example, as expressed via head nods, eye contact, or body movements. 24 Cf. Ebbesen, & Konecni, On the External Validity of Decision Making Research, in Cognitive Processes in Choice and Decision Behavior (T.S. Wallsten ed. 1980). The process for evaluating the videotapes has been set forth in great detail in The Process of Field Research, supra note 2, at 349-53; Appearance of Justice, supra note 2, at 109-14; and Blanck, Rosenthal, Hart & Bernieri, Trial Judges' Verbal and Nonverbal Behavior in Criminal Jury Trials: Descriptive, Psychometric, and Predictive Analyses (working paper 1990). Basically, raters are assigned randomly to rate the judges' taped behavior on different emotional scales, and these ratings are then used in developing the composite or global dimensions as described herein. A separate group of raters assess the judges on the "micro" nonverbal behaviors, for example, head nods, smiles, and eye contact. See infra note 73 and accompanying text. 25 The judges studied included three males and two females. 26 The analyses here focus on judges' behavior while delivering final jury instructions because we were interested in describing the type and generality of this information during this important part of the trial process, when the judge addresses the jury on the law. Moreover, because all of the judges read "pattern" jury instructions, it was possible to isolate or "naturally control" the effects of the judges' behaviors from the content of the instructions themselves. The Process of Field Research, supra note 2, at 349-51.

Videotaping the trials enabled thesystematic separation and comparison of the verbal and the 27purely nonverbal channels of the judges' communication.

It is clear that individuals' verbal and nonverbal channels of communicationconvey different types 28and amounts of information. As suggestedabove, courts have long recognized the possible 29impact of a judge's nonverbalbehavior alone on perceptions of trial fairness. Accordingly,

    theanalyses are organized by both the "content-present" and "content-absent" channels of communication. "Content-present" refers to verbal channels ofcommunication, such as the judges' normal speech-only cues, and "content-absent" refers to purely nonverbal channels of 30communication, such as facialexpressions, body movements or tone of voice. Together, the

    analysesaid in the development of a framework for studying judges' communicativebehavior during "live" trials.

    III. THE MEASURE OF THE JUDGE: DESCRIPTIVE AND PREDICTIVE ANALYSES

    This part sets forth two types of empirical analyses that may prove usefulfor assessing judges' communicative behavior. For each analysis, we discussrelated research findings, describe our findings, and frame future researchquestions in the area.

    A. Analysis I: Descriptive Aspects of Trial Judges' Behavior

    1. Background and Method of Study

    The first analyses are aimed at delineating the global dimensions of judges'verbal and nonverbal behavior in relating to their juries. The term "globaldimension" is used to describe the general manner or mode of judges'communicative and interpersonal behavior--behavior often conveyed 31independentlyof verbal content. Although a particular global behavior mayreflect a judge's

     27 The dimensions of verbal and nonverbal behavior were assessed from altered versions of videotapes, including: (1) normal video-and-audio tapes, (2) audio-only tapes (normal speech only), (3) visual-only tapes (facial and body cues only), and (4) tone-of-voice-only tapes (by a "filtered" audio recording that allowed rhythm, pitch, and tone to be conveyed but not verbal content). See Blanck & Rosenthal, Developing Strategies for Decoding "Leaky" Messages: On Learning How and When to Decode Discrepant and Consistent Social Communications, in Development of Nonverbal Behavior in Children 203 (R.S. Feldman ed. 1982); Blanck, Rosenthal, & Vannicelli, Talking to and About Patients: The Therapist's Tone of Voice, in Nonverbal Communication in the Clinical Context 99-143 (P.D. Blanck, R. Buck & R. Rosenthal eds. 1986) [hereinafter Nonverbal Communication]; Blanck & Rosenthal, The Mediation of Interpersonal Expectancy Effects: Counselor's Tone of Voice, 76 J.Educ. Psychology 418 (1984) [hereinafter Mediation]; Blanck, Rosenthal, Vannicelli & Lee, Therapists' Tone of Voice: Descriptive, Psychometric, Interactional, and Competence Analyses, 4 J.Soc. & Clinical Psychology 154 (1986). 28 See supra note 23 (references cited therein). 29 See Appearance of Justice, supra note 2, at 97-101. 30 The content-present channel of communication was expressed via the normal video and audio tapes, and the content-absent channel of communication was expressed via tapes altered experimentally to show only visual and only tone of voice. 31 See Nonverbal Communication, supra note 23, at 108-12; Parloff, Waskow & Wolfe, Research on Therapist Variables in Relationship to Process and Outcome, in Handbook of Psychotherapy and Behavior Change 233 (S.L. Garfield & A.E. Bergin 2d ed. 1978); Schaffer, Multidimensional Measures of Therapist Behavior as Predictors of Outcome, 92 Psychological Bull. 670, 673 (1982).

    general orientation in relating to others during the trial,judges probably show different global behaviors at different times, dependingon the circumstances of the trial process. For example, when responding toimproper attorney behavior a judge might show more directive or controllingbehaviors; conversely, when dealing with child witnesses a judge might showmore caring and patient behaviors.

In an analogous line of study, we examined the nonverbal global behaviors orgeneral demeanor of 32psychotherapists when talking to and about their patients. We found three basic dimensions of

    behavior in the way therapists interact with their patients. The first dimension of "professionalism" emerges and parallels what earlier researchers have called a "directive mode" of therapeutic 33interaction. The emphasis of the more professional or directive style of therapy is on the 34therapist's role in structuring, leading, and advising. In his classic analyses of the

    therapeuticinteraction, Carl Rogers described behavior high on the professional dimensionas providing "advice and persuasion," while others have interpreted this stylein therapy as influential, 35directive, and even critical. Not onlyare therapists who are high on the professional dimension more active in thetherapeutic interaction, but they are more likely to inhibit activity on thepart of 36the patient.

    A second global dimension of "warmth" in relating to patients emerges.High scores on this dimension embody the qualities of empathy and positiveregard in the therapeutic interaction and 37are characterized by an open-mindedand understanding therapeutic style. In relating to patients,

    thewarm therapist focuses on communicating to the patient in a "common sense"manner, with an emphasis on acceptance of the patient's feelings. In contrastto therapists rated high on the professional dimension, "warm" therapists mayattempt to create an atmosphere conducive to the 38patient's self-exploration anddevelopment. In our work with psychotherapists, a

    thirddimension that typically emerges is the degree of general anxiety ornervousness in relating to

     32 See Nonverbal Communication, supra note 23, at 108-12; see also F. Bernieri, P.D. Blanck, R. Rosenthal, M. Vannicelli & P. Yerrell, Therapists' Speech: Channel Congruency, Affect, and Variability, (presentation at the Am. Psychological Ass'n Convention) (August 10, 1990) (available from first author); Bernieri, Blanck, Rosenthal, Vannicelli & Yerrell, Therapists' Speech: Channel Congruency, Affect, and Variability in Speaking to and About Patients (1990) [hereinafter Therapists' Speech] (manuscript submitted). 33 See Gomes-Schwartz, Effective Ingredients in Psychotherapy: Prediction of Outcome from Process Variables, 46 J. Consulting & Clinical Psychology 1023, 1025-26 (1978); Gomes-Schwartz & Schwartz, Psychotherapy Process Variables: Distinguishing the "Inherently Helpful" Person From the Professional Psychotherapist, 46 J. Consulting & Clinical Psychology 196 (1978); Mintz, Luborsky & Auerbach, Dimensions of Psychotherapy: A Factor- Analytic Study of Ratings of Psychotherapy Sessions, 36(1) J. Consulting & Clinical Psychology 106, 110 (1971) [hereinafter Dimensions of Psychotherapy]. 34 See Rogers, The Necessary and Sufficient Conditions of Therapeutic Personality Change, 21 J. Consulting Psychology 95, 96 (1957). See generally C. Rogers, Counseling and Psychotherapy (1942). 35 Dimensions of Psychotherapy, supra note 29, at 110; Rogers, supra note 30, at 97-99. 36 Dimensions of Psychotherapy, supra note 29, at 110. 37 Nonverbal Communication, supra note 23, at 109; see also Bayes, Behavioral Cues of Interpersonal Warmth, 39 J. Consulting & Clinical Psychology 333 (1972). 38 Dimensions of Psychotherapy, supra note 29, at 109; Rice, Therapists' Style of Participation and Case Outcome, 29 J. Consulting Psychology 155, 158-60 (1965); Rice & Wagstaff, Client Voice Quality and Expressive Style as Indexes of Productive Psychotherapy, 31 J. Consulting Psychology 557, 560-62 (1967).

    39patients.

Little attention, if any, has been devoted to the empirical study of judges'interpersonal or global 40behavior. One study that employedparticipant observation methods examined the differences in 41the working styles,and by implication, "interpersonal" roles of nine criminal court judges. These

    researchers developed a typology of six major judicial behavioral roles: Political Adventurer-Careerist, Intellectual-Scholar, Routineer-Hack, Judicial Pensioner, Hatchet-Man, and Tyrant-Showboat-Benevolent Despot. Particularly relevant to our interests are these researchers' behaviorally-based descriptions of these judges' different roles. For example, in the "Tyrant-Showboat-Benevolent Despot" style the judge "completely dominates the proceedings and manipulates them toward his own ends.... He manipulates juries through smiles, smirks, and unrecorded off-the-cuff comments which may tend to discredit a witness or a defendant's 42testimony during a trial."

    Unlike this earlier work, our research assesses judges' behavior fromvideotapes of actual criminal trials, utilizing groups of individuals who arenot connected with the trials, assigned randomly to rate the judges' behavior.Ratings of the judges' behavior were made on ten different scales: (1) professional--not professional, (2) warm--not warm, (3) open-minded--not open-minded, (4) honest--not honest, (5) dominant--not dominant, (6) competent--not competent, (7) dogmatic--not dogmatic, (8) wise--not wise, (9) hostile--not hostile, and (10) anxious--not 43anxious.

    These ten scales were selected for several reasons. First, many of thesescales have been employed in a variety of studies of verbal and nonverbalcommunication and have been shown to be related

     39 See Nonverbal Communication, supra note 23, at 108-12 (although these dimensions seem to be independent of the professionalism and warmth dimensions, anxiety in relating to patients comprises both the more "critical" aspects of professionalism and the more "uncomfortable" aspects of the dimension of warmth). 40 E.g., Ungs & Bass, Judicial Role Perceptions: A Q-Technique Study of Ohio Judges, 6 Law & Soc'y Rev. 343, 343 (1972). 41 Smith & Blumberg, The Problem of Objectivity in Judicial Decision- Making, 46 Soc. Forces 96, 102-03 (1967). 42 Smith & Blumberg, supra note 37, at 105. An analogous line of study demonstrates how global dimensions of verbal and nonverbal behavior could affect trial outcomes. See, e.g., Edinger & Patterson, Nonverbal Involvement and Social Control, 93 Psychological Bull. 30, 38 (1983); Erickson, Lind, Johnson & O'Barr, Speech Style and Impression Formation in a Court Setting: The Effects of "Powerful" and "Powerless" Speech, 14 J.Exptl.Soc. Psychology 266 (1978); Lind & O'Barr, The Social Significance of Speech in the Courtroom, In Language and Social Psychology 66 (H. Giles & R.N. St. Clair eds. 1979); Scherer, Voice and Speech Correlates of Perceived Social Influence in Simulated Juries, in Language and Social Psychology 88-120 (H. Giles & R.N. St. Clair eds. 1979); see also Sigal, Braden-Maguire, Hayden & Moseley, The Effect of Presentation Style and Sex of Lawyer on Jury Decision Making Behavior, 22 Psychology, Q.J. Hum.Behav. 13, 14-15 (1985) (discussing how mock jurors, who viewed a simulated courtroom trial in which defense attorneys adopted either an assertive, aggressive, or passive behavioral style, found that the defense attorneys' assertive and aggressive courtroom style tended to result in significantly more "not guilty" verdicts than the passive style). 43 See Appearance of Justice, supra note 2, at 117-18 & App. C. Ten videotaped sections of the California Pattern Criminal Misdemeanor Jury Instructions, read by the judges to their juries, were rated. These sections were chosen to reflect the beginning, middle, and ending segments of the instructions, and all of these sections were rated for all 34 trials.

    44to the transmission of beliefsand attitudes. Second, various social science studies have 45foundthese scales useful in describing the communication of affect and interpersonalstyle. Third,

    these scales reflect the dimensions on which judges'behavior has been described by the courts in case law requiring judges to befair and impartial, and on which judges and practitioners base their 46ownobservations of the importance of communicative behavior in the courtroom.

    In describing and delineating judges' global dimensions of behavior, weemployed a principal 47components analysis. Principal componentsanalysis is a practical way to reduce the number of scales or variablesrequired to describe behavior. This type of analysis is particularlyapplicable to studies of complex courtroom behavior in which the goal is togenerate hypotheses and descriptions of behavior in the spirit of exploratorydata analysis. After performing the principal components analyses, we"rotated" the data matrix to maximize the ability to interpret resulting"factors" or "components," which are then used to create composite"supervariables" or, 48as we term them, the "global dimensions" of judges'behavior.

    2. Descriptive Analyses of Trial Judges' Behavior: Results and Discussion

    Here, we present our empirically-based description of the participatingjudges' global dimensions of behavior. These analyses are summarized in Table1 below:

     44 See The Process of Field Research, supra note 2, at 351; Nonverbal Communication, supra note 23, at 103; see also R. Rosenthal, Experimenter Effects in Behavioral Research (enlarged ed. 1976) [hereinafter Experimenter Effects]; Skill in Nonverbal Communication: Individual Differences (R. Rosenthal ed. 1979); Rosenthal, Conducting Judgment Studies, in Handbook of Methods in Nonverbal Behavior Research (K.R. Scherer & P. Ekman eds. 1982) [hereinafter Judgment Studies]; Rosenthal, Nonverbal Cues in the Mediation of Interpersonal Expectancy Effects, in Multichannel Integrations of Nonverbal Behavior 105-28 (A.W. Siegman & S. Feldstein eds. 1985). 45 See Nonverbal Communication, supra note 23, at 103. 46 For example, the National Conference of State Trial Judges describes the essential qualities of a good judge to include graciousness, moral courage, reputation for fairness, mercy, patience, ability to communicate, decisiveness, innovation, open-mindedness, brevity, dignity, honesty, and integrity. See Nat'l Conf. of State Trial Judges, ABA, The Judge's Book 31-38 (1989) [hereinafter Judges' Book]; see also Appearance of Justice, supra note 2, at 95-96. 47 This is a form of factor analysis. See R. Rosenthal & R.L. Rosnow, Essentials of Behavioral Research: Methods and Data Analysis 414-19 (1984). 48 See R. Rosenthal & R.L. Rosnow, supra note 43, at 415-19. In our analyses, the mean of the raters' ten ratings of the judges' behaviors were intercorrelated, separately for the content-present and for the content-absent channels, and a principal components analysis with varimax rotation was computed for each of these correlation matrices. See also infra notes 49-52 and accompanying text; cf. Nonverbal Communication, supra note 23, at 110.

    TABLE 1

    Descriptive Aspects of Trail Judges’

    Behavior: Principal Components Analyses

     Content-Present Channels Component (Factor)

     I II III IV

    Judicial Directive Confident Warm

    Variable Professional .779 .267 -.260 -.156

    Wise .589 .503 .063 .281

    Competent .743 .446 -.196 .011

    Honest .808 .023 -.162 .206

    Dogmatic -.025 .870 .119 -.055

    Dominant .255 .798 .064 -.054

    Not Anxious -.0146 -.015 .911 .060

    Not Hostile -.205 .267 .782 -.264

    Warm .153 -.020 -.095 .936

    Open-Minded .726 -.232 -.056 .413

     Content-Absent Channels Component (Factor)

     I II III IV

    Judicial Directive Confident Warm

    Variable

    Professional .721 .152 -.356 -.048

    Wise .829 .052 -.080 .132

    Competent .823 .214 -.207 .046

    Honest .799 -.091 .003 .282

    Dogmatic .112 .778 .192 -.163

    Dominant .080 .900 .071 -.054

    Not Anxious -.193 .099 .888 -.042

    Not Hostile -.192 .319 .710 -.333

    Warm .068 -.081 -.119 .920

    Open-Minded .474 -.242 -.159 .628

    Table 1 shows that for both the content-present and content-absentchannels of communication, the principal components analysis yields fourinterpretable components or basic global dimensions of the judges' behavior,namely: judicial, directive, confident, and warm.

    The following conclusions may be drawn about the four global dimensions onwhich judges may behave (or "appear" to behave) toward their juries: (1) A judge high on the judicial dimension is rated as more professional, wise, competent, and honest; (2) A judge high on the directive dimension is rated as more dogmatic and dominant; (3) A judge high on the confident dimension is rated as less anxious and less hostile; and (4) A judge high on the warm dimension is rated as

     Loadings serving to define each of the component-based global variables are underlined.

    49warmer and more open- minded.

Interestingly, it seems that these judges' four global dimensions are readilyassessed from either the 50content-present or the content-absent channels ofcommunication. Overall, the four

    empirically-derived dimensions ofjudges' behavior, analyzed separately for the content-present and content-absent channels, parallel earlier descriptions of the basic dimensions (or factor structure) 51of interpersonal communication.

    To develop a single interpretable solution across the content-present andcontent-absent channels of behavior that could be employed practically insubsequent analyses, we performed a cluster 52analysis. As would beexpected, the cluster analysis yielded the same four global dimensions ofjudges' behavior: judicial, directive, confident, and warm. The implicationsof this analysis are summarized in Table 2.

     49 The only difference between the content-present and the content- absent conditions is that in the content-absent condition the "open-minded" scale loads more highly on the warm than on the judicial dimension. This factor structure parallels our earlier findings and descriptions of behavior for psychotherapists, business executives, and children. See Nonverbal Communication, supra note 23, at 108-12. 50 This may result from the constrained nature of the judges' behavior when presenting pattern jury instructions. See supra note 22. We are presently exploring the relationship between the content-present and the content-absent channels during other portions of the trial process. 51 See Wish, Dimensions of Dyadic Communication, in Nonverbal Communication 371-85 (S. Weitz ed. 1979) (showing that our findings are consistent with a series of earlier studies that revealed five basic dimensions of interpersonal communication, interpreted as (1) task-orientation, (2) formality, (3) intensity, (4) dominance, and (5) cooperativeness). 52 Cluster analysis is a method for grouping complex sets of variables, such as those described above. See R. Rosenthal & R.L. Rosnow, supra note 43, at 424-25. Our cluster analysis is based on the "de-meaned" ratings or scores--that is, we standardized the scores by subtracting the group mean from each raw channel score, then aggregating across the content-present and the content-absent channels. To form a meaningful cluster or "global dimension," the median intra-correlation of the group needs to be substantially greater than the median inter-correlation of the group. See R. Rosenthal & R.L. Rosnow, supra note 43, at 424-25.

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