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"Smart people (like smart lawyers) can come up with very good explanations for mistaken points of view."

- Richard P. Feynman, Physicist

"There is a danger in clarity, the danger of over looking the subtleties of truth."

-Alfred North Whitehead

May 30, 2011

Racial Bias and Judicial Decisions

Racial bias and prejudice should have no place in a judicial decision. How good are judges at excluding this pernicious tendency from their deliberations? Researchers attempted to evaluate this question.[i]

These researchers explain that two types of potential bias exist can exist in the courtroom. The first is explicit bias which is bias that people are aware of and sometimes openly acknowledge. With cultural change, explicit bias has decreased and is certainly unacceptable within the judiciary.

The second type of bias is implicit bias which is bias that one may not be aware of and that operates at the unconscious level. Various techniques have been designed to measure implicit bias. One such technique is the Implicit Association Test (IAT) which measures the association between a race and words such as good/bad. (For several such tests see for example, )

The Rachlinski study showed the judges who were tested (from various geographical locations around the U.S.) had a strong white preference on the IAT test. The black judges showed no strong racial preference.

These researchers that attempted to discover whether measures of strong white preference in the IAT impact judicial decision making. The judges were asked to make judicial decisions involving the criminal justice system in three different cases. These questions involved a determination of the guilt of the individual as well as the appropriate disposition. The judges were primed to understand the race of the defendant. The results of this test showed that the judges’ decisions, on the average, were not affected with the race of the defendant.

However, the researchers discovered that judges who had a white preference in the IAT test gave higher sentences to black defendants and judges who had a black preference in the IAT test gave higher sentences to white defendants.

These researchers came to the following conclusions. “First, judges, like the rest of us, carry implicit biases concerning race. Second, these implicit biases can affect judges’ judgment, at least in context where judges are unaware of a need to monitor their decisions for racial bias. Third, and conversely, when judges are aware of a need to monitor their own responses for the influence of implicit racial biases, are motivated to suppress that bias, they appear able to do so.”[ii]

A judicial decision (or any decision within the criminal justice system) should never be affected by racial bias. Those of us in within the justice system must never tolerate explicit bias, and must be alert to, and guard against, implicit bias. The research would indicate if we are aware of our biases, and are committed to an unbiased decision, we have a reasonable likelihood at being successful in making unbiased decisions.

[i] Rachlinski, Jeffrey J., Sheri Lynn Johnson, Andrew J. Wistrich, and Chris Guthrie, 2009, Notre Dame Law Review, Vol. 84:3 pp. 1195-1246

[ii] Ibid, p. 1221

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

May 15, 2011

Thoughts of Death May Increase Desire to Punish

Terror management theory (TMT) posits that fear of death can strongly influence human behavior, including behavior within the courtroom. The theory starts with the hypothesis that when humans confront their own mortality, they are comforted by a belief that they share with others a stable world-view of various values. This world-view may be a transcendent religious view, or a this-world, shared sense of community values.

Multiple studies have been completed that show that when humans are reminded of their death, they have a tendency to want to protect, defend, and enforce their world-views. This tendency holds for decisions made in a courtroom—generally resulting in more punitive decisions.

Research has shown that when judges are reminded of their mortality, they will impose higher bail than judges who have not been reminded of their own mortality. Juries will have a greater tendency to convict on lesser evidence and recommend more severe sentences after being reminded of their mortality. People also can become more physically aggressive against those who threaten their world-views when they are reminded of their own mortality.

Research has shown that TMT can lead people being more lenient rather than punitive when it is the victim of the crime that threatens one’s world-view—any experienced criminal defense attorney understands this.

Terror management theory is another mechanism that those in the criminal justice system must be aware of. While advocates may attempt to exploit this phenomenon, judges must be on guard to protect against any undue influence on their or a jury’s decision from thoughts of one’s mortality.[i]

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

[i] Arndt, Jamie, Joel Lieverman, Alison Cook, (2005), Terror Management In the Courtroom: Exploring the Effects of Mortality Salience on Legal Decision Making, 11 Psychology, Public Policy and Law 407, pp. 407-437/

May 9, 2011

Judges May Not Be Able to Close the Valves of Their Attention

Emily Dickinson believed that the soul is able to “Close the valves of her attention like stone.” Is this ability limited to the ethereal world, or do judges also have this ability? As discussed in the last entry, the research shows that jurors find it difficult putting inadmissible information out of their minds when deliberating on a verdict. What does the research say about judges’ ability to do this?

Researchers examined this question by testing a group of judges with a series of questions.[i] The first scenario looked at the effect of judge’s exposure to settlement discussions on their ultimate award of damages. One group of judges learned that the plaintiff is requesting $175,000 in damages. Another group of judges learned that the plaintiff is requesting $10 million in damages. Each group of judges is paired with another group that is not involved in the settlement discussions. Judges are warned not to use the information gleaned from the settlement discussions in their ultimate determination of damages.

The group of judges that are exposed to the $175,000 anchor (see Anchoring and Adjustment ) awarded damages averaging $612,000 compared to $1.4 million for the group of judges who were not exposed to the anchor. The group of judges that are exposed to the $10-million anchor awarded damages averaging $2.2 million compared to $808,000 for the group of judges who were not exposed to the anchor. The differences were statistically significant. The judges were not able to disregard the information they learned from the settlement discussions.

The second scenario involved judges deciding a contract dispute. Half of the judges had to rule on a discovery dispute involving the attorney/client privilege which included an in camera examination of a letter between the plaintiff and his/her attorney. The letter greatly weakened the case for the plaintiff. For the control group of judges, who were not exposed to the letter, 55.6% ruled for the plaintiff. Only 29.2% of the judges who were exposed to the letter and found it privileged, found for the plaintiff. Of the judges who were exposed to the letter and did not find it privileged (and therefore could consider it as evidence) only 25% found for the plaintiff. The 29.2% and the 25% were not statistically significant from each other. Again, it appears that judges were not able to put the privileged materials out of their minds when deciding the case.

The third scenario involved a court trial of a criminal sexual assault charge. The issue was consent. One set of judges had to rule on a pretrial motion in limine regarding the complaining witness’s prior sexual history for being promiscuous. The controls were not exposed to this information regarding the complaining witness. About 49% of the judges who had not been exposed to the information, found the defendant guilty, whereas 20% of the judges who had been exposed to the information about the victim and who had found it inadmissible, found the defendant guilty. (Only 7.7% of the judges who were exposed to the information and found it admissible convicted the defendant. However, because of the small sample size it was not significantly different from 20 %.) Again, it appeared that judges, on the average, could not keep the inadmissible evidence out of their decision making process.

The fourth scenario involved judges again making a determination of damages in a personal injury case. One set of judges were told that the plaintiff had a prior conviction involving swindling elderly people out of their life savings in an investment scheme. This was inadmissible evidence. Those judges, who learned of the plaintiff’s conviction, awarded 12% less than the judges who didn’t learn of this information. The difference was marginally statistically significant. Judges did not appear to be as affected by this information in this decision.

The fifth scenario involves sentencing a defendant. Some condemning information was received from the defendant through a cooperation agreement. The information was ruled inadmissible. The set of judges who were not exposed to this information sentenced the defendant to 78 months in prison. The judges who were exposed to the information, and had found the condemning information inadmissible, sentenced the defendant to an average of 85.9 months in prison. Again, it appears that the prohibited information was used in the judicial decision.

The sixth scenario involved one group of judges making a decision on whether or not to find probable cause for a search warrant, and the other group of judges having to make the same decision, but this time during a suppression motion evaluating the same facts after the police did the search and found a large amount of drugs. (The police had clear authority to search without a warrant under the circumstances of the scenario, provided they had probable cause.) About 24% of the judges would have issued the warrant, and about 28% would have found probable cause at the suppression hearing. The differences were not statistically significant. Judges appeared to be able to keep the fact that drugs were found, which is not relevant to the inquiry, out of their minds.

The seventh scenario involved judges again deciding the guilt of a defendant. One set of judges heard a suppression motion on a statement of the defendant where he confessed to the crime. The statement was inadmissibly obtained and suppressed by the court. Of the judges that did not hear the suppressed evidence, 17.7% of the judges convicted the defendant. Of the judges who had heard the suppression motion, 20.7% of the judges convicted the defendant. Again, these two conviction rates were not statistically significant from each other. Again, judges appear to have been able to keep the inadmissible information from affecting their decision.

This research casts some doubt on whether or not judges have the ability to “close the valves of their attention like stone”. It appears that this closure, under many scenarios, is more like cotton cloth than stone.

[i] Wistrich, Andrew J., Guthrie, Chris, and Rachilinski, (2005), Can judges ignore inadmissible information? The difficulty of deliberately disregarding, University of Pennsylvania Law Review, Vol. 153, pp 1251-1345.

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

May 2, 2011

Do Not Consider this Entry for Any Purpose

Jurors are often asked whether or not they can put aside what they heard or saw about a case and decide the case fairly and impartially based only upon the evidence presented at trial. In highly publicized cases, often jurors who had been exposed to pretrial publicity remain on a jury, after assuring all that they will remain “fair and impartial.” Jurors are also often instructed to “disregard that answer” or to use evidence in one way, but not for any other purpose, such as with “other-acts” evidence.

Are jurors able to follow these instructions? Empirical studies do not support the conclusion that they can. Researchers exposed mock jurors to different levels of two types of incriminating pretrial evidence—either factually oriented or emotionally oriented. They further measured the effect of time after exposure to that evidence on any bias resulting from the pretrial publicity. They found that the passage of time between the exposure to the pretrial publicity and the trial reduced any biasing effects of the publicity for factually oriented material. However, they did not find that this delay reduced the biasing effect of emotionally laden pretrial publicity.[i]

This research was replicated using videotaped and written pretrial publicity. No differences were found in the biasing effect of either videotaped or written pretrial publicity. Further, these researchers did not find a difference in the biasing effects of factually oriented pretrial publicity and emotionally laden pretrial publicity.[ii]

Research regarding trial instructions to disregard certain evidence, or to use certain evidence in limited ways is mixed. Research that looked at the disclosure of the defendant’s criminal history show that evidence of prior convictions did not necessarily increase the conviction rate. If the convictions were for similar conduct, then jurors were not able to keep it from influencing their verdicts. Some research shows that the deliberation process may assuage the effects of inadmissible evidence on juror bias.

One study looked at the type of instructions the judge used to inform the jury not to consider a statement of the defendant. A jury informed not to regard the statement because it was illegally obtained was less likely to follow the admonition than a jury informed not to regard the statement because the quality of the tape was too poor.[iii]

One finding in the research related to admonitions to disregard evidence is what is called the “back-fire effect”. The “back-fire effect” is when a jury pays more attention to evidence that they are instructed not to consider than if they were not so instructed. The explanation for the exclusion of the evidence appears to impact whether or not a jury will heed judicial instructions to disregard the evidence. There is some evidence to support the idea if the exclusion of the evidence is based on the unreliability of the evidence, such as hearsay, jurors will be more likely to heed the judicial instruction.

There are many psychological theories as to why jurors will not disregard, or are not capable of disregarding, inadmissible evidence. One of the more common and interesting theories is the production of a reactance in jurors. Reactance theory maintains that when a people are told that they cannot do something that they believe they should be able to do, they react to this prohibition by increasing their determination to engage in the behavior.[iv]

The research regarding the ability of a jury to disregard various inadmissible evidence shows that there is reason to believe that they often can’t. I don’t think this conclusion is anything that surprises anyone experienced in the court room. It does provide us with a warning to redouble our efforts to minimize a jury’s exposure to inadmissible evidence, and to not be misguided by fictions that believe that a limiting instruction can cure everything.

[i] Kramer, G.P., Kerr, N.L. & Carroll, J.S. (1990). Pretrial publicity, judicial remedies, and jury bias. Law and Human Behavior, 14, 4009-438.

[ii] Wilson, J.R & Bornstein, B.H. (1998). Methodological consideration in pretrial publicity research. Is the medium the message? Law and Human Behavior, 22, 585-598.

[iii] Kassin, S.M., & Sommers, S.R. (1997). Inadmissible testimony, instructions to disregard, and the jury: Substantive versus procedural considerations. Personality and Social Psychology Bulletin, 23, 1046-1054.

[iv] Lieberman, Joel D. and Arndt, Jamie (2000). Understanding the Limits of Limiting Instructions, Psychology, Public Policy and the Law, Vol 6, No. 3 677-711.

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.