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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | |
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> | The Reasonableness of Reasonable Doubt? / Juror Psychology: A Cognitive Approach? | | | -- By MichaelBerkovits - 10 Feb 2008 | |
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< | Section I | | | | |
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< | Subsection A | >
> | Introduction | | | | |
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> | Juries in criminal trials are tasked with passing the evidence adduced at trial through a special cognitive lens called the "reasonable doubt" standard in order to determine the guilt or innocence of the accused. Undoubtedly, some jurors will ignore the instruction entirely and convict or acquit based primarily on notions of racial or class justice. Some will decide based on something like a preponderance of the evidence standard: "well, I think he did it" or "Well, I don't think he did it." Many will understandably fail to pay rapt attention to the judge's monotonous intonation of the jury instructions, and instead rely on a rich cultural tapestry of movies, television shows, and newspapers that give meaning to the phrase. Each approach is more or less present in any individual juror, but ultimately all jurors do all of these things. This essay concerns that part of the process of applying the reasonable doubt standard that a well-intentioned juror would take in trying to follow the judge's instructions to the letter. | | | | |
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> | Applying the Standard | | | | |
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> | There are many constitutionally permissible formulations of the reasonable doubt jury instructions. Am. Jur. 2nd Trial § 1159. None contain language encouraging the jury to escape the cognitive biases that attend the evaluation of low probabilities. For example, Prospect Theory suggests that people tend to “neglect or underweight outcomes that occur with very small probabilities. Cf. here Suppose that the sum total of the evidence presented to an ordinary juror at trial suggest a 1% probability that the defendant is actually innocent of the alleged crime. (Putting aside, for the moment, questions of whether an exact probability like 1% can be properly represented; presumably, cognitive representations of probabilities are fuzzier than that.) The juror will tend to discount this probability to a negligible amount, perhaps zero. To the juror, the probability that the defendant is innocent will “feel like” zero, even though if the juror had to put a number on it, she would call it a 1% probability. A juror in this position would convict. Of course, this violates what most people would want the reasonable doubt standard to do: at least for serious crimes, we would be very uncomfortable knowing that one of every hundred people jailed was innocent. According to prospect theory, and the studies that confirm it, all low probabilities are downgraded. Assume that the jurors in any given trial construct some probability of innocence based on the evidence and that these probabilities, while subjectively determined, are not random but nevertheless vary around a mean. In cases where the probability of innocence is low, jurors will systematically underweight these probabilities downward. To the extent that subjective determinations of the probability of innocence go into jurors’ decisions of whether or not to acquit, the cognitive tendency to underweight low probabilities will cause more jurors to vote guilty than is justified by their own subjective weighing of the evidence.
Weighing the Evidence
Not only are jurors in a criminal trial ill-equipped to apply what is already a vague standard to their subjective valuation of the evidence presented, but jurors' processing of that evidence is handicapped by the systematic shielding of other, relevant information. This information comes in the form of meta-evidence: general facts applicable to the weighing of evidence at trial.
Eyewitness Testimony and Faulty Memory
First, jurors receive no official instruction as to the unreliability of eyewitness testimony. Jurors are repeatedly told, by defense counsel and by the judge, that witnesses may lie; they are essentially never told that witnesses may be "telling the truth" about what they saw and yet still be spewing misinformation. Memory is notoriously faulty (cite Loftus), all the more so when the eyewitness was involved in a terrifying or violent crime (cite case where woman recalled being assaulted by someone whom she described as looking like the tv news anchor who happened to be on the air while she was being assaulted). This would not be a problem if jurors already believed that eyewitness testimony was faulty; instead, jurors come in believing it is the evidentiary gold standard. | | | | |
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> | Lie-Detection
Similarly, people believe themselves to be good at telling when someone is lying. (Indeed, given the human tendency to inflate one's perception of one's talents (cite), jurors probably believe that they are better-than-average lie detectors.)
But in controlled studies, ordinary people cannot detect lies at better-than-chance levels (cite). Logically, then, there is no reason to allow in testimony regarding a topic for which the two sides will present competing witnesses, one of whom is by definition lying - the jury will have no (rational) basis for determining which is lying! | | | | |
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> | Error Rates
A third meta-evidentiary fact kept from the jury is evidence of errors made by other juries. Unlike the two topics just discussed, jurors actually come in with correct knowledge about this third topic, i.e., that some people innocent of the crime with which they are charged are found guilty. But no judge would ever instruct a jury to keep this fact in mind, and any judge that did might find herself reversed on appeal. The rules of evidence bar meta-evidence on the grounds that it is not "relevant" (cite; CJS?). But, of course, if reasonable people applying a "no reasonable doubt" standard get it wrong more than a reasonable proportion of the time (and most of us feel that any error rate much above zero is wholly unreasonable, at least until we begin to suspect what the actual error rate is and quickly adjust our definition of reasonableness to permit us to remain comfortable with the system as it is), then evidence to that effect is highly relevant to a jury made up of such people. | | | | |
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> | Highly relevant to the reasonable doubt query - are we just moving dials up and down to attain a conviction rate proper for comfort level? we're not after truth at all! | | | | |
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< | Section II | | | | |
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> | Prescriptions for Change / Where do we go from here?
Psychologists as judges?
Discuss Frank or other readings?
Why don't we just say, "absolutely no doubt," knowing that jurors tend to overconvict anyway? | | | Subsection B
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< | Juries in criminal trials are tasked with passing the evidence adduced at trial through a special cognitive lens called the "reasonable doubt" standard in order to determine the guilt or innocence of the accused. Undoubtedly, some jurors will ignore the instruction entirely and convict or acquit based primarily on notions of racial or class justice. Some will decide based on something like a preponderance of the evidence standard: "well, I think he did it" or "Well, I don't think he did it." Many will understandably fail to pay rapt attention to the judge's monotonous intonation of the jury instructions, and instead rely on a rich cultural tapestry of movies, television shows, and newspapers that give meaning to the phrase. Each approach is more or less present in any individual juror, but ultimately all jurors do all of these things. This essay concerns that part of the process of applying the reasonable doubt standard that a well-intentioned juror would take in trying to follow the judge's instructions to the letter. (169 words) | | | | |
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< | There are many constitutionally permissible formulations of the reasonable doubt jury instructions. Am. Jur. 2nd Trial § 1159. None contain language encouraging the jury to escape the cognitive biases that attend the evaluation of low probabilities. For example, Prospect Theory suggests that people tend to “neglect or underweight outcomes that occur with very small probabilities. Cf. here Suppose that the sum total of the evidence presented to an ordinary juror at trial suggest a 1% probability that the defendant is actually innocent of the alleged crime. (Putting aside, for the moment, questions of whether an exact probability like 1% can be properly represented; presumably, cognitive representations of probabilities are fuzzier than that.) The juror will tend to discount this probability to a negligible amount, perhaps zero. To the juror, the probability that the defendant is innocent will “feel like” zero, even though if the juror had to put a number on it, she would call it a 1% probability. A juror in this position would convict. Of course, this violates what most people would want the reasonable doubt standard to do: at least for serious crimes, we would be very uncomfortable knowing that one of every hundred people jailed was innocent. According to prospect theory, and the studies that confirm it, all low probabilities are downgraded. Assume that the jurors in any given trial construct some probability of innocence based on the evidence and that these probabilities, while subjectively determined, are not random but nevertheless vary around a mean. In cases where the probability of innocence is low, jurors will systematically underweight these probabilities downward. To the extent that subjective determinations of the probability of innocence go into jurors’ decisions of whether or not to vote for acquittal, the cognitive tendency to underweight low probabilities will cause more jurors to vote for guilty than is justified by _their own_ subjective weighting of the evidence. | | | | |
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< | Initial Notes: | >
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Preliminary Musings: | | | Eben touched on a number of quirks of the jury system and of the trial process. |
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