When judges realize their written opinion contains a mistake, should they publicly acknowledge the mistake and the correction? U.S. Court of Appeals for the Ninth Circuit Judge Andrew D. Hurwitz answered that question in the affirmative in his recent essay for the Arizona Law Review, titled When Judges Err: Is Confession Good for the Soul?:
My thesis is that we all would be better off if judges freely acknowledged and transparently corrected the occasional “goof.” Confession is not only good for the soul, it also buttresses respect for the law and increases the public’s understanding of the human limitations of the judicial system.
Judge Hurwitz examined the “goofs” of a handful of judges, including himself, and the different ways the judges handled them. The appellate court on which he presided publicly “fessed up” to a case altering mistake. But, other judges (including justices on the Supreme Court), while fixing the error, did not openly admit the mistake. And, some judges admitted the error, but failed to change the case outcome accordingly. Ending his article with examples of judges who “[did] it right,” Judge Hurwitz provided examples of judges who took full responsibility for their errors, admitted so in the subsequent written ruling, and remedied the result. In the final analysis, Judge Hurwitz concluded that judges make mistakes, and when they do, they should correct them transparently.
Judges hold a special place in our society and system of government, and they are afforded special privileges commensurate with their status. . . . But judges are not infallible. We make mistakes.
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But, whenever judges learn of significant mistakes that affect the outcome of a case, there is value to correcting them transparently. Correcting errors is not only required to do justice, but reemphasizes a sad but important truth–that although almost all judges try very hard to do their best, we sometimes fall short.
Judge Hurwitz provides judges much food for thought. But his article provides an important truism for legal consumers as well:
Citizens should understand that not every case comes out right, whether decided by a lay jury or a learned judge. The admission of fault not only is a strong goad to avoid future errors, but has an important educational impact on the administration of justice as a whole.
We hope all judges — and legal consumers — are listening.