Quite possibly the most powerful way in which a judge can shape and mold a trial to reach his/her desired outcome is the power to control what evidence the finders of fact are permitted to have made available to them.  The trial court judge has the discretion to determine what testimony or evidence is admitted.  Seldom do appellate courts overturn a trial judge on the basis of trial decisions about what evidence is admissible.  Most often it is acknowledged to be within the discretion of the trial judge and only when it is blatantly and grossly abused is there any reparative action at the appellate level.

    In this case Judge Czajka ruled that an expert the defense wished to have testify about the identity of a person in a photograph was not admissible.  The basis was "I'm making a determination this is not the kind of testimony or evidence that is beyond the canon of a lay person." (p. 410).  The testimony would have been that the person in the photograph (which was quite ambiguous) was not the defendant.  The jury was denied the opportunity to hear and evaluate the expert testimony for itself.  There is a large, well replicated body of research on eyewitness identification, photo identification, the expectancy effect, that shows conclusively that the lay person neither knows nor understands the error rate when there are claims of eyewitness identification.  This is good scientific data and ought to have been admitted.  A recent law review article is relevant.  In reviewing the status of psychological testimony and the current standards for evidence admissibility it concludes this type of evidence is admissible as science and is not known by the general public (Risinger, D. M., Saks, M. J., Thompson, W. C., & Rosenthal, R. (2002).  The Daubert/Kumho implications of observer effects in forensic science: Hidden problems of expectation and suggestion. California Law Review, 90(1), 1-67.).

    Judge Czajka shows his reliance upon ill founded and erroneous stereotypes in his claims that he can successfully lay aside improper evidence he has heard so that it will not affect his decisions and in his comments in sentencing which show he has demonized those accused of child sexual abuse and sees them as the most reprehensible and wicked of human beings.  He has also accepted uncritically that concept that children are inevitably damaged by sexual abuse whereas the scientific evidence shows only a minority of abused children experience long term emotional damage.

    A large body of research also shows that low base rate behaviors (i. e., homosexual pedophile abuse of children) cannot be accurately predicted or diagnosed when using as an evidentiary factor a high base rate phenomenon (i. e. possession of pornography).  Even using the most accurate tests or assessments, the rate of false positive conclusions far exceeds the rate of true positive conclusions.  When the high base rate of an evidentiary factor exceeds the low base rate of an alleged crime, error is introduced into the reasoning process of weighing guilt or innocence.  This is what occurs when judges and others use an intuitive stereotyping approach to arrive at conclusions (Davis, D., & Follette, W. C. (2002).  Rethinking the probative value of evidence: Base rates, intuitive profiling, and the "Postdiction" of behavior. Law and Human Behavior, 26(2), 133-158. ).

    Finally, the bias of Judge Czajka is evident in the data from the trial transcript on his responses to objections raised by prosecutor and defense counsel.  Objections raised by the prosecution and the defense were tabulated into a 2 x 2 table where the four cells were prosecution objections sustained and overruled and defense objections sustained and overruled.  The tabulation showed that 86 prosecution objections were sustained and 32 were overruled.  Defense objections were sustained 55 times and overruled 76 times.  These results were submitted to a Chi-square statistical analysis.  The Chi-square makes it possible to determine whether an observed frequency is within or departs from theoretical or empirical expectations.  The Chi-square compares the frequency of occurrence actually observed with the frequency expected by chance.

Judge's Rulings

    The probability of < .001 is that assigned by the tables in our statistics book for a Chi-square of 10.83 which is the lowest probability contained in the statistical tables.  The Chi-square in this case was 23.38.  This is an outcome that cannot be a chance result.  Unless other factors can be found to account for it, the results of .the analysis suggest an extreme bias by the trial judge in favor of the state.  This same type of data is recognized in the justice system as determinative in showing racial and/or sexual discrimination, potential bias in juror pools, and police profiling of minority groups.

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