By Shawn C. Marsh, PhD
“The law deals fundamentally with human behavior. It deals with choices people make – to do right or wrong, to lie or tell the truth. It deals with perceptions and memories – what color shirt was the mugger wearing? It deals with decision making – should I vote guilty or not guilty?”
[Wargo, E. (2011). From the lab to the courtroom: How psychological scientists are having an impact on the legal system. Observer, 24(9), 10–14(33).]
Note: This is an interactive article. You can click on the highlighted links for resources illustrating or discussing each concept.
Our brains are remarkably efficient. But what price do we pay for efficiency? Sometimes our brains can lead us terribly astray despite our best intentions—and this can have very real implications for the justice system.
Consider issues related to perception and memory. Cognitive psychologists have demonstrated repeatedly that we do not necessarily accurately perceive our world, that we can be so focused on tasks that we miss things right in front of us, and that our memories are more malleable than we think. Perception and memory play a huge role in the justice system—such as understanding the credibility of eyewitness testimony. Specifically, the number one reason innocent people are wrongfully convicted is eyewitness evidence. Perception and memory errors also have implications for non-criminal cases. For example, the suggestibility of memory has real implications for interviewing children in dependency cases, as well as assessing the viability of historical accounts of parties in divorce proceedings. Overall, when it comes to perception and memory, human beings think they notice more than they do, believe they remember more accurately than they do, and underestimate the role of stress and cognitive load in how they interpret the world around them.
Of course, behavior and decisions are not just influenced by how our brain acquires and retrieves information. Humans are very social animals by nature, and our behavior is often shaped by others. Several classic social psychological studies such as the Milgram experiments, the Stanford Prison experiment, and the Asch experiments demonstrate the power of authority, roles, and conformity in shaping human behavior—with very sobering implications for understanding real world events (e.g., Abu Ghraib). As with perception and memory, social influence dynamics also have real implications for the justice system. Specifically, the number two reason innocent people go to jail is false confession. Again, there are implications for non-criminal cases. For example, these lines of research can inform how to best design youth detention programs, as well as help us to better understand behavior in abusive relationships. Central to application to the law, psychological science shows us that human beings are susceptible to engaging in extreme behavior in the presence of authority, are susceptible to adopting behavior consistent with a given role, and are social animals that take cures from others about how they should behave. (In fact, humans are so interconnected that when a person is socially ostracized for even a brief period of time, the part of the brain that detects physical pain is activated.)
In addition to perception, memory, and social influence, bias also can influence our decisions. Bias can be explicit (i.e., we are aware of our preference) or implicit (i.e., we are not aware of our preference). Many justice system professionals are increasingly familiar with the work social scientists are doing to better understand stereotypes, automatic processing of information, and implicit bias (e.g., see Project Implicit). There are, however, many other types of biases: Wikipedia alone lists over 300 types of cognitive biases and fallacies. One example is the just-world hypothesis, which is the tendency for people to want to believe that the world is fundamentally just, causing them to rationalize an otherwise inexplicable injustice as deserved by the victim.
Another less known—but intriguing—bias is implicit egotism [See Pelham, B. W., Mirenberg, M. C., Jones, J. T. (2002). Why Susie sells seashells by the seashore: Implicit egotism and major life decisions. Journal of Personality and Social Psychology, 82(4), 469-487.] For example, research suggests we like our first and last initials better than other letters (a bias documented in at least 14 countries and termed the name letter effect). Research suggests implicit egotism can even influence behavior. In the 2000 presidential campaign, for example, people whose last names began with B and G were more likely to contribute to the election funds of Bush and Gore, respectively. Our names also seem to influence our decision where to live (e.g., statistically disproportionate number of residents named Mildred live in Milwaukee) and what we do for a living (e.g., statistically disproportionate number of lawyers are named Larry).
Although not as sophisticated as these studies in terms of analyses, the NCJFCJ research staff examined the initials of all judicial members of the National Council of Juvenile and Family Court Judges. The single most common first initial of judges was J at nearly 47% more common than the next most common initial M. Applying bias research to the law, we have learned that decisions can be influenced in many different ways. For example, social science suggests irrelevant information—such as priming legal professional with a random number—can influence the length of “sentences” they assign to criminals (i.e., anchoring heuristic). Implications for non-criminal cases include decisions regarding whether or not to place a child in foster care, as well as the amount of damages awarded in malpractice or personal injury cases. Overall, human beings are not as aware or in control of their thoughts and behaviors as they like to think, do have many types of biases, and are attracted to things that we identify as part of our self.
In conclusion, psychological science has much to offer the justice system. Perception, memory, social influence, and bias all play a role in how actors in the system acquire, retain, retrieve, and act on information. Psychological science not only illuminates these and other social cognitive processes, but can provide insight on how to best adjust practice to limit unintended consequences of our decisions. Although outlining potential preventive strategies is for another article, an important first step that I hope to have accomplished here is to further develop awareness that we are, after all, only human… very, very human.
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Shawn C. Marsh, PhD, is the Director of the Juvenile and Family Law Department of the National Council of Juvenile and Family Court Judges. Dr. Marsh is a social psychologist with research and teaching interests in trauma, adolescent development, resiliency, and social cognition.