Usually a court will not make a ruling using an argument which the parties to the case have not raised. This subject has been discussed on this site previously. However, I would argue that this legal principle only applies to substantive arguments, in other words when the argument involves interpretation of evidence. When an argument involves no interpretation and is based either on logic alone, or on evidence which admits of no alternative interpretations, then I would argue that a judge has the right to intervene. The question here is when does that right become a duty? Also, is there a Latin or other terminology that applies to this situation?

So, as an example of this, imagine a situation where a judge has previously presided over a criminal case in which a particular defendant was acquitted by a jury. Later, that same defendant is brought before the judge again on the same charge. For whatever reason, the defending attorney fails to argue that his client should be not be tried twice on the same charge. However, the judge knows for a fact that this is the case because he presided over the previous trial himself. Is it encumbent on the judge to dismiss the charge?

Here is another example involving logic alone. Imagine that a defendant is tried on a criminal charge and convicted by a jury on that charge. Before sentencing however, the judge discovers that the legislature had repealed the law under which the defendant was charged several weeks before the alleged crime had occurred. At this point the judge realizes that he made an error at the arraignment by allowing the case to come to trial at all. Is it now encumbent on the judge to set aside the jury verdict and dismiss the charge?

1 Answer 1



A common law judge’s (and jury’s) task is to resolve the case that the parties choose to bring based on admitted evidence.

Common law is adversarial, civil law is inquisitorial. A common law judge’s (or tribunal’s) role is to decide the parties’ dispute; unlike a civil law judge they have no (direct) interest in finding the truth.

A judge that decides on the basis of facts not in evidence or law that the parties have not had the opportunity to be heard on has not afforded them natural justice/procedural fairness. If they do that, they have fallen into reviewable error. Whether such an appeal is successful will turn on if doing it right rather than wrong might have made a difference.

The judge’s (or jury’s) personal knowledge is not evidence.

However, their hands are not tied. They can draw such matters to the parties’ attention and call for submissions. This meets the requirements of procedural fairness: if the parties’ want to say something or introduce evidence of the matter, they can and it is then properly before the forum. If they don’t, they don’t. Nevertheless, the judge needs to be impartial in this: they cannot become an advocate - it’s better to say “tell me about X” rather than “I think this about X”.

For your examples:

  1. The judge calls for submissions on the identity of the defendant and the identity of the defendant in the other case and if the charges are identical.
  2. The judge would go to the parties, advise them if the situation and ask if anyone would like to file a motion for the conviction (for that’s what it is once the verdict is delivered) to be set aside. They would probably withhold sentencing until the parties’ decided if they want to and the motion, if any, was resolved.
  • If decisions were not in any way binding upon anyone other than the actual parties to a case, then for a judge to consider issues not raised may be unfairly prejudicial in favor of the party that should have raised an issue but didn't. On the other hand, if decisions are binding upon non-parties, failure of the judge to consider an issue which a party should have raised but didn't is more unfairly prejudiced against people in similar situations who would have raised the issue, but will now have a harder time doing so because of "precedent". IMHO, a proper approach in cases where there is...
    – supercat
    Commented Nov 14, 2021 at 19:40
  • ...an issue which a party should obviously have raised but failed to do so, would be for a judge to explicitly call out the issue and instruct the party to either properly argue it or explicitly waive it, and if a party explicitly waives such an issue, a judge's decision should only be binding upon others who waive the issue, or whose opponents can demonstrate the issue's inapplicability in their particular case.
    – supercat
    Commented Nov 14, 2021 at 19:43
  • 1
    @supercat in the US, at least, trial courts do not create precedent, and the use of words such as "defense" and "jury" limits these examples to trial courts. In the appellate context, a subsequent party affected by a precedential ruling in which a certain argument was not raised can appeal on the basis of an argument that wasn't previously considered. For example, if a statute is challenged on free speech grounds and the supreme court finds the statute to be constitutional, a subsequent challenge on equal protection grounds could still succeed.
    – phoog
    Commented Mar 16, 2023 at 10:46
  • "Never" is the answer to a different question: when can the judge decide a case on an argument not considered by the parties? But in both examples 1 and 2, I think it is fair to say that the judge has a duty to intervene and rule on a question that was not raised by either party, after hearing submissions from them. Similarly, s 41(5) of the Evidence Act 1995 (NSW) is an example of a law that explicitly casts a duty on a judge to consider an issue even if it was not raised by either party.
    – sjy
    Commented Mar 16, 2023 at 12:37

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