Juries’ Judgment
Part of our focus in Chapter 11 was on how people draw conclusions based on the evidence they encounter, and, of course, this is exactly what a judge or jury needs to do in a trial—reach a conclusion (a verdict) based on the trial evidence. Can we therefore use what we know about judgment in other contexts to illuminate how judges and juries perform their task?
Consider, as one example, the separation between System 1 and System 2 thinking: System 1 thinking, we’ve argued in the chapter, is fast and automatic, but it can sometimes lead to error. System 2 thinking, in contrast, is slower and more effortful, but it can often catch those errors, leading to better judgment. The problem, though, is that people often rely on System 1 even for deeply consequential judgments. System 2, it seems, enters the scene only if appropriately triggered.
How does this play out in the courts? Consider, as one crucial case, the problem of racial prejudice in the legal system. It turns out that Blacks are more likely to be convicted than Whites, even if we focus our attention on cases in which the crimes themselves are the same in the comparison between the races, and if the evidence and circumstances are quite similar. Then, once convicted, Blacks are also likely to receive more severe punishments than Whites—including the death penalty.
What produces these race differences? One troubling hypothesis is that many people involved in the criminal justice system—including police, judges, and juries—are influenced by an easy and automatic association, provided by System 1 thinking, that links Blacks to thoughts of crime. This association may not reflect a belief, in the person’s mind, that Blacks are often guilty of crimes. Instead, the association may indicate only that the ideas of “Blacks” and “crime” are somehow linked in memory (perhaps because of images in the media or some other external influence). As a result of this linkage, activating one of the ideas can trigger the other, and this association may be enough to shape a System 1 judgment. This is because, after all, System 1 typically relies on the ideas that come effortlessly to mind; and so, if the idea of “Blacks” triggers the idea of “crime,” this can lead to a biased conclusion.
Can we use System 2 to override this effect? In a number of studies, researchers have simply called participants’ attention to the fact that a particular trial defendant is, in fact, a Black and that considerations of race may be pertinent to the case. Surprisingly, this is sometimes enough to put participants on their guard, so that they resist the easy conclusion that might be suggested by memory associations. As a result, merely making race explicit as a trial issue can sometimes diminish juror prejudice.
However, it is absurd to think we could somehow erase all the effects of prejudice merely by calling jurors’ attention to the defendant’s race. The situation is more complicated than this! In some cases, in fact, alerting jurors to the issue of race may increase prejudice rather than diminish it. (This would be true if, for example, the jurors were overtly racist; in that case, highlighting race might encourage the jurors to take their own racism into account in evaluating the case.) In still other cases, the jurors might suspect that the police are racist; if so, then highlighting the issue of race might prejudice the jury against law enforcement and so might create a bias in favor of the defendant. In light of these (and other) complications, there is surely no simple step that works in a general way to guarantee courtroom procedures that are free of bias.
Even so, the research certainly reminds us that we do need to consider how courtroom judgments can be shaped by System 1 thinking. What steps we can take to deal with this (and how, for example, we can ensure that System 1’s prejudices are overruled by the more careful thinking of System 2) is an urgent matter for future research.
Critical Questions
1. fiogf49gjkf0d Why would the use of System-1 thinking be troubling in the context of a jury deciding innocence and guilt? |
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2. fiogf49gjkf0d Think about a prejudicial belief that is held by some members of your community about a racial or cultural group. How might the representativeness and availability heuristics be sustaining this belief? |
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3. fiogf49gjkf0d Speculate on how we might make members of a jury more aware of the problems of System-1 thinking and encourage them to use System 2. |
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Pretrial Publicity
As Chapter 11 describes, reasoning can be pulled off track by many factors, so that our conclusions are sometimes less logical, less justified, than we would wish. How does this apply to the courts?
In many trials, potential jurors have been exposed to media coverage of the crime prior to the trial’s start, and this pretrial publicity can have many effects. One concern is the pattern called belief bias. In the lab, this term refers to a tendency to consider an argument “more logical” if it leads to a conclusion that the person believed to begin with. In the courtroom, this could translate into a juror’s evaluating the trial arguments not on their own terms, but in terms of whether the arguments led to the conclusion the juror would have endorsed (based on the media coverage) at the trial’s start. This influence of information from outside the courthouse is contrary to the rules of a trial, but jurors may be unable to resist this powerful effect.
As a related concern, consider confirmation bias. As the chapter discusses, this bias takes many forms, including a tendency to accept evidence favoring your views at face value but to subject evidence challenging your views to special scrutiny, seeking flaws or weaknesses in these unwelcome facts. This tendency can easily be documented in trials. In one study, participants were first exposed to a newspaper article that created a bias about a particular murder trial. These pretend “jurors” were then presented with the trial evidence and had to evaluate how persuasive each bit of evidence was. The results showed a clear effect of the newspaper article: Evidence consistent with the (biased) pretrial publicity was seen as more compelling; evidence inconsistent with the publicity was seen as less compelling. And, of course, this effect fed on itself. Each bit of evidence that the “jurors” heard was filtered through their confirmation bias, so the evidence seemed particularly persuasive if it favored the view the “jurors” held already. This led the “jurors” to be more confident that their view was, in fact, correct. (After all, the evidence—as they interpreted it—did seem to favor that view.) This now-stronger view, in turn, amplified the confirmation bias, which colored how the “jurors” interpreted the next bit of evidence. Thus, around and around we go—with confirmation bias coloring how the evidence is interpreted, which strengthens the “jurors’ ” belief, which creates more confirmation bias, which colors how later evidence is interpreted, which further strengthens the belief.
In this study, the pretrial publicity had a powerful effect on the “jurors’ ” verdict, but we need to be clear that the publicity did not influence the verdict directly. Indeed, the odds are good that the “jurors” weren’t thinking of the publicity at all when they voted “guilty” or “not guilty.” Instead, their verdicts were based (as they should be) on the participants’ evaluation of the trial evidence. The problem, though, is that this evaluation was itself powerfully shaped by the pretrial publicity, via the mechanisms we have just described.
In light of these results, we might worry that the courts’ protections against juror bias may not be adequate. In some trials, for example, jurors are merely asked: “Can you set aside any personal beliefs or knowledge you have obtained outside the court and decide this case solely on the evidence you hear from the witness stand?” Such questions seem a thin shield against juror prejudice. As one concern, jurors might not know whether they’ll be able to set aside their prejudices. They might not realize, in other words, that they are vulnerable to belief bias or confirmation bias, and so they might overestimate their ability to overcome these effects. As a related point, jurors might be determined to vote, in the jury room, based only on what they heard during the trial. As we have now seen, though, that’s no protection at all: In the study we described, the jurors’ ultimate decision was based on the evidence, but that doesn’t change the fact that the decision was based on the evidence as viewed through the lens provided by pretrial publicity.
Belief bias and confirmation bias are powerful effects that often work in a fashion that is completely unconscious. This strongly suggests that the courts need to seek more potent means of avoiding these influences in order to ensure each defendant a fair and unbiased trial. Possible solutions include stricter screening of jurors, and procedures that would make it easier to change a trial’s location. In any case, it seems clear that stronger precautions are needed than those currently in place.
Critical Questions
1. fiogf49gjkf0d What are "belief bias" and "confirmation bias"? |
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2. fiogf49gjkf0d Why is it important to make sure that a potential juror has not already been exposed to media coverage of the crime? |
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3. Jurors are often asked if they will be able to make a decision based solely on the evidence presented in court and to set aside any prior knowledge of a case. Is this a realistic expectation? Why or why not? |
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Confirmation Bias in Police Investigation
In the criminal justice system, a confession from a suspect is powerful evidence, and juries rarely fail to convict someone who has confessed to a crime. It turns out, though, that sometimes people confess to crimes they did not commit, so we need some means of separating genuine confessions from false confessions.
How often do false confessions occur? No one really knows, but one insight comes from the cases (mentioned in Chapter 7) of men who have been convicted in the United States courts but then exonerated, often years later, when DNA evidence finally showed that they were actually not guilty at all. Scrutiny of these cases indicates that roughly 25% of these men had offered confessions—and, since the DNA evidence tells us they were not guilty, we can be sure that these confessions were false.
Police officers understand that not all confessions are true, so the police usually seek further evidence to corroborate (or, in some cases, undermine) a confession. The problem, though, is that this collection of further evidence can be biased by the confession itself. In other words, the confession can lead the police officer to believe the suspect is guilty, and then confirmation bias enters the scene, shaping the subsequent investigation, and perhaps even producing errors in the investigation.
One recent study indicates that the concern here must be taken seriously. The researchers examined all of the DNA exoneration cases that included a confession (and, again, the DNA evidence makes it clear that these confessions are false) and found that these cases tended to contain other errors as well. Specifically, these confession cases tended also to include invalid or improper forensic evidence, mistaken eyewitness identifications, and false testimony from snitches or informants. Each of these types of errors were more common in the false-confession cases than in cases without confessions. And, troubling, in the cases involving multiple errors, police records indicate that the confessions were obtained early in the case, before the other errors occurred. The suggestion, then, is that the false confessions may have caused (or invited, or encouraged) these other errors.
Other studies indicate a similar pattern. For example, hearing about a confession can influence the judgment of experienced polygraph examiners and also latent-fingerprint experts: These trained investigators, once they have heard about a confession, are more likely to interpret their evidence (the polygraph results or a fingerprint) as indicating guilt, just as we might expect based on confirmation bias.
What should we do with these results? At the least, it seems important to get these findings into the view of the police, in the hope that they can somehow guard against this type of bias. It’s also important to get these findings into a jury’s view, with the goal of helping the jury interpret confession evidence. More broadly, these results highlight the dangers of false confessions, and urge us toward a closer examination of the procedures through which confession evidence is obtained in the first place. In addition, these findings provide a compelling reminder of how confirmation bias can shift how even a trained professional perceives the world, pays attention to evidence, and evaluates that evidence.
Critical Questions
1. fiogf49gjkf0d Describe the evidence that suggests that confirmation bias exists in police investigations. |
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2. fiogf49gjkf0d Describe how confirmation bias could lead police officers to overlook conflicting evidence. |
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3. fiogf49gjkf0d If you were a police officer, what steps would you take to ensure that you did not succumb to confirmation bias? |
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