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Are the decisions made by lawyers and judges as fair and unbiased as they appear?

Topic: Cognitive bias
by Emily, 2020 Cohort

While decisions made in legal contexts are often framed as rational, fair and based on facts, cognitive bias often influences legal decision-making. Cognitive bias is a flawed systematic response to a judgement or decision problem (e.g. whether or not a suspect is guilty of committing a crime).

In criminal trials, suspects and offenders are often perceived as poor decision-makers that allow their judgements to be clouded by cognitive bias. However, the impacts of cognitive bias in the legal system is not limited to the decisions made by suspects or offenders. Cognitive bias can equally impact legal professionals (such as lawyers and judicial officers) and others in the courts (such as juries and witnesses).

To reduce bias in legal decision-making, legal professionals require legal expertise, knowledge and skills and the ability to understand their decision-making process and how it is impacted by cognitive bias.

To reduce the impact of cognitive bias on their decision-making, legal professionals should:

  • Research background information to avoid relying on assumptions.
  • Practice identifying and correcting cognitive bias in their own decision-making.
  • Take more time to deliberate when making decisions- recall the facts, apply the law and develop conclusions

While any type of cognitive bias can impact decision-making in any context, the following types of cognitive bias tend to have the greatest impact on decision-making in legal contexts.

Confirmation bias / Tunnel vision#

Confirmation bias (also referred to as tunnel vision) is focusing on information and evidence that confirms your own previously formed opinion at the exclusion of information and evidence to the contrary. For example, searching for evidence incriminating the primary suspect in a criminal case while ignoring evidence incriminating other suspects.

Familiarity bias#

Familiarity bias is the assumption that offenders are more likely to harm strangers than individuals they know personally. For example, a jury deciding that a defendant is not guilty of murder as the victim was her sister.

Omission bias#

Omission bias is the view that actions are more significant than omissions. For example, a judge handing down harsher sentences for offenders that act to cause harm compared to offenders that cause harm through the failure to act.

Endowment effect#

Endowment effect is the view that individuals value their own property higher than others value it. For example, a defendant awarded damages for the value of his stolen car that is not satisfied as it does not reflect the sentimental value of losing his first car.

Re-iteration effect#

Re-iteration effect is the increased belief in arguments or statements that are repeated multiple times. For example, a juror changing her mind and believing an argument made by a defendant because his lawyer repeated it several times throughout the trial.

Discriminatory bias#

Discriminatory biases are views that reinforce existing social disadvantages such as racism, sexism and homophobia. For example, profiling suspects of a crime based on their race or ethnicity.

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Disclaimer#

This content has been contributed by a student as part of a learning activity.
If there are inaccuracies, or opportunities for significant improvement on this topic, feedback is welcome on how to improve the resource.
You can improve articles on this topic as a student in "Unravelling Complexity", or by including the amendments in an email to: Chris.Browne@anu.edu.au

While decisions made in legal contexts are often framed as rational, fair and based on facts, cognitive bias often influences legal decision-making. Cognitive bias is a flawed systematic response to a judgement or decision problem (e.g. whether or not a suspect is guilty of committing a crime).

In criminal trials, suspects and offenders are often perceived as poor decision-makers that allow their judgements to be clouded by cognitive bias. However, the impacts of cognitive bias in the legal system is not limited to the decisions made by suspects or offenders. Cognitive bias can equally impact legal professionals (such as lawyers and judicial officers) and others in the courts (such as juries and witnesses).

To reduce bias in legal decision-making, legal professionals require legal expertise, knowledge and skills and the ability to understand their decision-making process and how it is impacted by cognitive bias.

To reduce the impact of cognitive bias on their decision-making, legal professionals should:

  • Research background information to avoid relying on assumptions.
  • Practice identifying and correcting cognitive bias in their own decision-making.
  • Take more time to deliberate when making decisions- recall the facts, apply the law and develop conclusions

While any type of cognitive bias can impact decision-making in any context, the following types of cognitive bias tend to have the greatest impact on decision-making in legal contexts.

Confirmation bias / Tunnel vision#

Confirmation bias (also referred to as tunnel vision) is focusing on information and evidence that confirms your own previously formed opinion at the exclusion of information and evidence to the contrary. For example, searching for evidence incriminating the primary suspect in a criminal case while ignoring evidence incriminating other suspects.

Familiarity bias#

Familiarity bias is the assumption that offenders are more likely to harm strangers than individuals they know personally. For example, a jury deciding that a defendant is not guilty of murder as the victim was her sister.

Omission bias#

Omission bias is the view that actions are more significant than omissions. For example, a judge handing down harsher sentences for offenders that act to cause harm compared to offenders that cause harm through the failure to act.

Endowment effect#

Endowment effect is the view that individuals value their own property higher than others value it. For example, a defendant awarded damages for the value of his stolen car that is not satisfied as it does not reflect the sentimental value of losing his first car.

Re-iteration effect#

Re-iteration effect is the increased belief in arguments or statements that are repeated multiple times. For example, a juror changing her mind and believing an argument made by a defendant because his lawyer repeated it several times throughout the trial.

Discriminatory bias#

Discriminatory biases are views that reinforce existing social disadvantages such as racism, sexism and homophobia. For example, profiling suspects of a crime based on their race or ethnicity.

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