Precedents Affect Judges’ Decisions

​​​You may have assumed that a trial judge simply hears the facts of a case and makes a decision based on those facts. After all, isn’t that the way it happens on television? Few people outside the legal community understand how many factors enter into a trial judge’s decisions, and, in particular, how precedents govern those decisions.

Q: What is a precedent?
A: A precedent is a prior judicial decision involving the same legal issue that is currently being decided. For example, before 1996, when a police officer stopped a criminal defendant for a minor traffic violation, and found incriminating evidence (drugs, for example), the defendant would argue, sometimes successfully, that the traffic violation was just a “pretext,” or an excuse, and that the real reason for the stop was the police officer’s hunch that the defendant was involved in serious criminal activity. The defendant would argue that, because the police officer had no reason to believe that a serious crime was being committed, the evidence of that crime should not be used in evidence at trial. In 1996, both the United States Supreme Court and the Supreme Court of Ohio decided that, even when a minor traffic violation is not the real reason for stopping a motorist, the stop is legitimate if the driver has, in fact, committed a minor traffic violation. As a result of those decisions, Ohio trial judges may no longer throw out evidence just because it is obtained as the result of a “pretextual” stop.

Q: Must trial judges follow these precedents?
A: Yes. Our judicial systems, both federal and state, are organized as hierarchies, so that when one court decides a legal issue, all courts below it in the hierarchy must follow its decision. All Ohio courts must follow decisions of the Supreme Court of Ohio; Ohio trial courts within an appellate district must follow decisions of that district’s court of appeals.

Q: Why must trial judges follow decisions of higher courts?
A: We value uniformity in the law, which requires at least one court with the authority to decide, for the entire judicial system, what the law is. Also, a trial judge would not have the time to decide every legal issue that comes up from scratch. When a novel issue arises, the three judges of an appellate panel can bring their collective wisdom to bear on the issue, and the most important issues will be decided with the collective wisdom of seven justices of the Supreme Court of Ohio (or the nine justices of the United States Supreme Court).

Q: Suppose the judge disagrees with a higher court’s precedent?
A: Because our judicial system is hierarchical, the judge must follow legal precedents decided by a higher court. A judge who feels strongly enough may express disagreement in his or her decision, while still following the higher court’s decision.

For example, in a 2001 decision by the Ohio 2nd District Court of Appeals, the issue was whether a natural father’s having sent his daughter just one Christmas card, in the year before the proposed adoption of the daughter by her stepfather, was enough contact with the child to require the father’s consent to the adoption. The Supreme Court of Ohio had held that any communication, however slight, between a parent and a child within the year preceding a proposed adoption was enough to require the parent’s consent. The court of appeals followed this decision, as required, but noted its disagreement with the decision in its opinion. Occasionally, the Supreme Court of Ohio may change its mind after having reviewed such an opinion.

Q: So does this mean higher courts sometimes overturn their old decisions?
A: Yes. Occasionally, a court will overrule itself not long (within a few years) after handing down a decision. The court might, for example, be made aware of legal authority it didn’t know about when it made the earlier decision. More common is the overruling of an older precedent. This can reflect changing social conditions, or changes in other areas of the law, or, it can reflect the recognition that, in the light of experience, the old decision just isn’t working out well.


This "Law You Can Use"consumer legal information column was provided by the Ohio State Bar Association. It was prepared by Judge Mike Fain of the 2nd District Court of Appeals in Dayton.

Articles appearing in this column are intended to provide broad, general information about the law. This article is not intended to be legal advice. Before applying this information to a specific legal problem, readers are urged to seek advice from a licensed attorney.



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