Translate in another language

Swaying Judgement: A case for BIAS reduction

Swaying Judgement: A case for BIAS reduction
Image credit: Freepik

Hi There,

Many legal scholars believe that judges are able to make sound judgments by applying their lived experience of the law and thinking abilities they have picked up as legal practitioners and scholrasto the facts and the law before them but there is growing empirical evidence to suggest that the external environment plays a far greater role in shaping their decisions than previously thought(Rachlinski & Wistrich, 2017). This week we take a look at how judges get swayed by mental shortcuts.

Several studies prove that Judges' verdicts and sentencing decisions are influenced by heuristics, which also determine how they interpret evidence and evaluate witness testimony. For example, research has shown that judges are more likely to convict African American defendants than white defendants for the same crime. Why? Because they tend to find eyewitness testimony of African Americans less credible than that of whites; the same applies to defendants who are poor. Judges are also more likely to impose harsher sentences on defendants convicted of violent crimes when they believe the crime rate is on the rise in their jurisdiction.

While judges strive to act rationally, they are also influenced by System 1 (fast, automatic, intuitive) and System 2 (slow, reflective, effortful) thinking, which is subject to cognitive bias(Kahneman & Frederick, 2005).

A study was done by administering a CRT (Cognitive Reflection Test) to a group of 252 trial judges who were then asked to make decisions on a number of questions.

For example, a bat and ball cost $1.10 in total. The bat costs $1 more than the ball. How much does the ball cost? Most judges answered 10 cents. Despite being logical, this response is incorrect. If the ball costs 10 cents and the bat costs one dollar more, the bat costs $1.10. The bat and ball would cost $1.20 in total, not $1.10 as the problem specifies. Therefore, five cents is the right response. That means, the ball costs five cents, the bat costs $1.05, and the two cost $1.10.

Collectively, the study found judges typically rely more on intuition than on cognitive skills when reaching conclusions. A low CRT score indicates that judges frequently use intuition instead of reflection while making judgments, at least in general situations. Judges' reliance on intuitive reactions and anchoring also hinders their ability to be objective. As a result, they are often inclined to choose an outcome that is more or less favorable than the evidence warrants because they believe that the defendant will behave a certain way when they are on trial, no matter what the evidence says.

"Judges are influenced by heuristics and preconceived notions of legal doctrine and procedure" (Rachlinski et al,2007). In other words, judges use their knowledge and experience to make decisions, but they are often not very good at assessing the quality of the evidence that supports those decisions. Judges have been known to make systematic errors that favor certain parties or to write opinions that embed these mistakes. This can have a serious impact on a defendant's right to a fair trial.

Heuristics that affect judicial decisions include:

Anchoring (or anchoring bias): the tendency to anchor on an initial value, which pulls subsequent estimates towards this value even if the data do not provide support for this value. Recent study found that judges are influenced by journalist's inquiries with high or low anchors. They found that judges with articles with high anchors were more likely to convict, whereas those with low anchors were more likely to acquit.

Confirmation bias: the tendency to look for information that confirms our preexisting beliefs. Confirmation bias may also influence judges when they hear and analyse evidence in court. Judges may have a bias in favour of evidence that supports their preconceived notions and against evidence that contradicts those notions. Indeed, a number of studies have demonstrated that this prejudice exists among judges, attorneys, or police officers.

Hindsight bias: it is a well-known bias in decision-making. This bias (also known as the "I-knew-it-all-along" effect) is the mistaken belief that an event was predictable, even though one could not have known the outcome beforehand. Research proves that judges are susceptible to this bias, making judgments intuitively rather than deliberatively. However, in another study they demonstrated resistance to the bias, appearing to make determinations deliberatively rather than intuitively because they needed to apply rule of law.

So, What can be done to counteract judicial bias?
We still need more research on this and it needs to be informed from legal, anthropological, and economics along with psychology.

Judges can take steps to reduce (but not eliminate) their intuitive biases. Judges can possibly override (or “debias”) their biases by actively considering all possible explanations for the evidence. Additionally, awareness to the heuristic thinking and the resulting possible biases affecting judicial decisions is a prerequisite for any future attempt to limit the effects of such biases on justice. The Judicial Council of California recommends courts to address implicit bias by providing routine diversity training that emphasises multiculturalism and encourage judges to recognise that there are systemic barriers to equal justice for people of colour and other marginalised groups.

and all of us at the Behavioural Review

Great! You’ve successfully signed up.

Welcome back! You've successfully signed in.

You've successfully subscribed to IP Wave.

Success! Check your email for magic link to sign-in.

Success! Your billing info has been updated.

Your billing was not updated.