Cognitive Psychology and the Law

Unconscious Thinking

Chapter 13 argues that much of your thinking goes on unconsciously, and, like many of the observations we’ve encountered throughout the text, this fact has important implications for the legal system. In many trials, for example, the judge knows that jurors have been exposed to prejudicial pretrial publicity. The judge may ask the jurors, therefore, whether they’ll be able to set aside what they’ve heard prior to the trial and decide a verdict based only on the trial evidence. But how accurately can the jurors answer this question? Can the jurors forecast what they’ll be influenced by? Then, at the time of the verdict, will the jurors know whether they were influenced by the pretrial publicity? Research on the cognitive unconscious suggests pessimistic answers to these questions—because the relevant influences are likely to be unconscious, and so not something the jurors could ever assess. On this basis, the judge’s initial question to the jury (“Will you be influenced by . . .”) and the judge’s subsequent instruction (“Make sure that you only consider . . .”) provide little protection against the effects of pretrial publicity.

Similar concerns apply to the trial’s witnesses. Imagine, for example, that the police show you six photographs and ask you to pick out the man who robbed you. After you make your choice, the police officer smiles and says, “Yes, that’s who we suspected. By the way, how certain are you in your selection?” Then the officer asks some additional questions: “How good a view did you get of the perpetrator? How far away was the perpetrator? For how many seconds was the perpetrator in view?”

In this situation, notice that you received a bit of confirming feedback right after the identification (“Yes, that’s who we suspected”), and research tells us that this feedback has a powerful influence. As we mentioned in Chapter 7, study participants given this sort of feedback report that they are more confident in their choice, compared with participants not given feedback. (And similar effects have been observed with actual witnesses to actual crimes!) Participants given this feedback also end up remembering that they paid closer attention, had a better view, and were able to see more of the perpetrator’s face, in comparison to people not given this feedback. Of course, these recollections are mistaken—because, in the experiments, the feedback and no-feedback groups got exactly the same view and could see exactly the same details.

Why does feedback have these effects? It is as if research participants were saying to themselves, “I guess I can set my doubts to the side, because the officer told me that I did get it right. With my doubts now suspended, I suppose I can say that I’m certain. And since I apparently chose the right guy, I guess I must have gotten a good view, been standing close enough, and so on. Otherwise, I’d have no explanation for why I made the right choice and am so confident in my choice.”

This certainly sounds as if participants are drawing inferences from the feedback and reaching conclusions about what they did or didn’t see. But such reasoning happens unconsciously. Participants are aware only of the product that results from these steps: a specific level of confidence in their identification, and a set of recollections about the event. They are entirely unaware of the process that led to these products. And as Chapter 13 describes, there is nothing unusual or exotic about this example. Instead, this is the way cognition works in general—with most of your thought process hidden from view. As a result, witnesses will be the unwitting victims of their own unconscious inference and may give misleading evidence because of this inference. And, because the relevant processes are unconscious, witnesses may well deny making these inferences, if asked directly, and so make their testimony seem more compelling than it really should be.

Do these steps really happen? I testified in one trial in which a store’s security video made it clear that a key witness was looking away from the robber for most of the duration of the robbery. This witness did, however, identify the defendant from a police lineup, and the police assured him that he’d selected the “right guy.” He then testified in court, telling the jury how clear a view he’d gotten, and how he’d spent most of the robbery staring at the robber’s face. In other words, his testimony was completely inconsistent with the security video, and, in my testimony, I suggested that we should put more faith in the video than in the witness’s recall. In explanation, I described to the court the effects of feedback, and how feedback can lead to a distorted memory. What happened next? The prosecution re-called this witness to the stand and asked him directly: “Were you influenced in any way by the feedback you received?” The witness confidently said no, and this denial was apparently persuasive to the jury. However, the jury probably got this wrong, because the witness’s denial was, in truth, of little value. The denial simply tells us that the witness wasn’t consciously influenced by the feedback, but that doesn’t mean that the witness was immune to the feedback.

These are all troubling points and suggest that we might need to rethink some of our judicial procedures—whether we’re talking about procedures for protecting a trial from the influence of earlier publicity, or procedures for deciding how much weight to give to an eyewitness’s account. More broadly, we might need to find ways to educate jurors so that they’ll be more sophisticated in their thinking about what’s conscious and what’s not. These steps would, we can hope, help everyone in the justice system to think more accurately about psychological processes, and, with that, to render better, more accurate, more just decisions.

Critical Questions

1.
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What do we mean when we say that people may be aware of the "products" of their cognitive operations, but not the "process"? Provide an example.
2.
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How could a witness who has just identified a photo of a crime suspect be influenced by feedback? How could the witness be unaware that this has occurred?
3.
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Think of an additional example from outside the courtroom setting, in which one person's confidence in a decision could be unconsciously affected by the feedback of another person.

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