Cognitive Psychology and the Law

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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.
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Why would the use of System-1 thinking be troubling in the context of a jury deciding innocence and guilt?
2.
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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?
3.
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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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