I recently read a judgment in which the judge constructed arguments that normally one would have expected the prosecution to make. In fact, the defense in the case argued that the prosecutor failed to demonstrate their case by not arguing certain points that they should have. This seemed to create no problem for the judge who just "remedied" the situation by making the arguments that the prosecution should have made in her judgment.

My understanding is that judges are supposed to weigh the merits of the arguments put before them, not make new arguments to repair or strengthen the case for one of the sides. I thought that the judge's tendency to bolster the prosecution's case with such arguments smacked of judicial bias in favor of the prosecution.

Is it grounds for an appeal to complain of judicial bias if a judge makes a de novo argument in their judgement, assuming that argument would have been necessary for a conviction? If so, what are the relevant precedents in United States case law?

(PS is there a technical term for the rules concerning the "role" of the judge in a court, what they supposed to do, and not supposed to do?)

  • The rule would be different in civil cases and in criminal cases and it isn't clear which one you mean. Prosecution is a term usually reserved for criminal cases, but you used a "civil procedure" tag which applies to non-criminal cases only. Also, there is no "judge" in the spelling of the word "judgment".
    – ohwilleke
    Commented May 26, 2017 at 22:10
  • Do you have a reference for this judgment?
    – user6726
    Commented May 26, 2017 at 22:10
  • @ohwilleke In this case it was an adversarial hearing in an administrative court, so there was a prosecutor. For the purposes of the question, consider the case to be criminal.
    – Cicero
    Commented May 26, 2017 at 22:14
  • 3
    @Circero an adversarial hearing in an administrative court, even if there is a prosecutor, is actually civil for the purposes of this question, so I'll consider it that way. Criminal cases where incarceration is possible are different for a lot of reasons mostly related to the bill of rights.
    – ohwilleke
    Commented May 26, 2017 at 22:28
  • 1
    @Nij From the link: "In British English the normal spelling in general contexts is judgement. However, the spelling judgment is conventional in legal contexts, and in North American English." The is a North American legal context.
    – ohwilleke
    Commented May 29, 2017 at 15:19

4 Answers 4


This probably isn't a ground for an appeal.

While a party arguing to reverse a trial court's decision must show that the argument that they are making on appeal was "preserved" by that party at trial by making that argument in the trial court, the converse is not true.

Indeed, one of the rules of appellate practice is that a trial court's ruling will be upheld for any reason supported by the evidence even if it wasn't made by any party at trial.

Generally speaking, a trial court isn't supposed to try a pro se party's case for them, but once the evidence is in, the court is free to do original legal research and come to a conclusions contrary to the arguments made by either of the parties. A judge is supposed to correctly apply the actual law to the facts notwithstanding the efforts of the parties to lead it astray. This doesn't systemically happen in favor of one party or the other in my experience, but is more common when one or both parties is relatively inexperienced in the relevant legal field.

Appellate courts also come to conclusions about the law not advanced by either party on a regular basis.

If anything, this is even more common in the area of administrative law, where the judge is likely to be a subject area specialist, than in ordinary civil litigation. It is also more common in administrative law because a judge in that context is more focused on the institutional implications of a bad precedent than trial court judges in ordinary courts.

(PS is there a technical term for the rules concerning the "role" of the judge in a court, what they supposed to do, and not supposed to do?)

Probably, but there isn't any term that comes readily to mind. If I can think of one, I will update this answer.

  • I would think that if failing to raise an issue could form a legitimate basis for an "ineffective assistance of counsel" appeal, having the trial court judge recognize the issue may be a better use of everyone's time than issuing a ruling that ignores the issue but would be overturned on appeal. On the flip side, a judge who spontaneously introduces an argument for one party could be construed as denying the other party a right to counter that argument, unless the judge expressly gave that other party a chance to respond.
    – supercat
    Commented Mar 1 at 17:51

For a civil case there are grounds to appeal for denial of natural justice if the decision is based on grounds that were not raised by the parties.

However, if the defendant raises an issue which the plaintiff hasn't and by doing so perfects the plaintiff's case, this is something that has been raised and should be considered. It is not uncommon, particularly where a party is unrepresented (although lawyers stuff up too), for them to shoot themselves in the foot like this.

Judges are required to weigh the evidence and apply the relevant law to the dispute. If the parties argue that their dispute is contractual and make no argument about tort or equity, it is not open to the judge to decide on the basis of law not argued. However, if the parties open the door even a little bit, the judge can kick it wide open.

  • Arguments are part of evidence? This answer pretty much contradicts the ohwilleke's one, specifically "A judge is supposed to correctly apply the actual law to the facts notwithstanding the efforts of the parties to lead it astray.".
    – Greendrake
    Commented Apr 24, 2020 at 0:45
  • @Greendrake - I don't think we are talking about the same thing. i have edited my answer to be clearer.
    – Dale M
    Commented Apr 24, 2020 at 2:04

In the inquisitorial system the court is actively involved in investigating the facts of the case. This is distinct from an adversarial system, in which the role of the court is primarily that of an impartial referee between the prosecution and the defense.


According to me, the judge is not a mere arbitrator - hearing both sides and deciding who argued best - like a in a debate, no matter what her personal view is.

The primary duty of the judge is to ensure that justice is done and no injustice happens. Hence even as she listens carefully to the laws cited, the arguments made and the evidence presented, she cannot make give her judgement based on who argued best. She has to apply her own knowledge of the law and satisfy herself that the evidence and arguments are both correct and whole. If in her bet judgement, the laws cited are inadequate and the arguments and evidence defective - even if not challenged - she has to supplement with her knowledge and experience

  • 2
    Given how contradicting this answer is with the principles of adversarial system and another answer here, you should provide some supporting references.
    – Greendrake
    Commented Apr 24, 2020 at 0:49

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