When conducting social psychology research, the starting point is devising a clear research question, with operationally defined outcome variables. What do I want to know and how can I translate that question into measurable terms? To investigate that question, you then assemble a group of randomly selected participants. You want to ensure that the group selected is demographically representative of the population you are interested in, and that you clearly define the exclusion criteria for your study so that participants who could confound your results are not included.
When conducting jury selection, the steps taken to ensure an objective trial are quite similar to the ones psychologists take to ensure objective research. If you substitute the word ‘juror for the word ‘participant, the courtroom setting can effectively be seen as a naturally occurring social psychology laboratory. This means that those who study social psychology are well suited for observing and analyzing the complex array of psychological phenomena occurring in a courtroom. The recognition of the parallels between the processes social psychological research tries to account for and the processes occurring in a courtroom has given rise to the use of psychologists as trial consultants.
However, there are some who remain skeptical about the idea of applying empirical methods to litigation. The legal profession has a long history and tradition. That history garners a respect for how things have always been done and can lead to a belief that precedent should guide current legal practice rather than scientific research. For litigators who have spent years honing their craft, it is also natural to develop the perception that what they do is an art rather than a science: the fear that results is that relying too heavily on empirical research could undermine their own professional judgment and intuition. However, the idea that something that is an art is beyond the realms of science creates a false dichotomy. Human intuition, which is based on our ability to build categories and recognize patterns, is remarkably useful and adaptive. However, it is also prone to errors and overgeneralizations, making it important to subject one’s intuitions to the scientific method.
A misconception about research is that it is itself purely a science. In fact, oftentimes the starting point for research is intuition. Psychologists use their instincts to make predictions about psychological phenomena, personal experience and expertise laid the groundwork for the insight that led to the hypothesis, but those same sources led to a lifetime of accruing biases and heuristics that can cloud one’s judgment. Therefore, the art of developing research questions must always be subjected to the scientific method. One of the difficulties of using psychological research in applied settings is that psychology can seem like it is “the science of common sense”. If I tell you that people with very different interests have the strongest relationships, you may say, “Well, naturally, opposites attract”. However, if I instead told you people who have very similar views have the strongest relationships, you could feel that sounds intuitive because “birds of a feather flock together”. This is a clear problem for any situation in which you rely solely on intuition. If our intuition can convincingly lead us to mutually exclusive conclusions, it cannot be thought to be motivated entirely by accuracy. In fact, people have a tendency to be able to explain any reasonable-sounding outcome. In other words, we are often impacted by hindsight bias, one of the many biases that affect how accurate our intuitions are. While the starting point of research can be intuition, the scientific method is the necessary next step to ensure our cognitive biases do not impede our decision-making.
Applying psychological research to legal proceedings is important as the human brain is complex, and not always rational in its decision making. In fact, the human brain is prone to biases and heuristics that can lead to errors in judgment and decision-making. The challenge is that biases and heuristics are mental shortcuts, this can be adaptive in some situations, but it also means that these exert their influence automatically and without our awareness. In our day-to-day life, this feature of human cognition is relatively efficient and even when errant, its effects are benign. Research and litigation are similar in the sense that the decisions being made are too important to risk omitting empirical methods from our approach. Yet, ironically, the same cognitive tendencies can render our intuition faulty, and can lead us to conclude that empirical approaches are not necessary and that there is no need to more carefully consider our assumptions. Feeling confident in our “gut instincts” is not an indication that our intuitions are accurate, but a symptom of the cognitive biases that influence the development of our intuitions. For instance, confirmation bias leads us to only notice information that confirms our pre-existing beliefs, leading to the strengthening of those initial beliefs.
The reason jurors are well-suited to the examination of social psychology is not because there is something particularly unique about jurors that makes them uniquely prone to biased thinking. Insights from social psychology apply to jurors simply because they are humans. All cognition is influenced by both conscious and unconscious forces. Even the psychologists who study these processes are not immune to biased thinking, which is why theory development does not end at hypothesis generation but necessitates that any assumptions are empirically validated. Legal professionals, regardless of their level of expertise, are similarly not immune to these biases. For example, lawyers may rely on their gut instincts when selecting jury members, not realizing those instincts are based on stereotypes and heuristics. A lawyer’s confidence that their expertise alone should guide trial preparation may lend itself to confirmation bias. If you are so confident in your version of events, you will only see information that confirms your instincts, and you may overlook important factors or evidence that contradicts your own case. These biases can have serious consequences for not only a lawyer’s clients, but the legal system as a whole.
Empirical research can help to overcome these biases by providing objective data and insights into human behavior and decision-making. For example, research on jury decision-making has shown that jurors are more likely to be influenced by vivid or emotional testimony, rather than by dry or technical evidence. This research can help lawyers to tailor their arguments and evidence to be more effective in court. Additionally, research on implicit bias can help lawyers to recognize and overcome their own biases and make more informed decisions in the courtroom. While the evidence for an effective approach to implicit bias training remains inconsistent, there is consensus in the field that in order to overcome implicit biases you must first be made aware of them.
The benefits of applying empirical research to litigation are numerous. By using empirical research to inform their decision-making, lawyers can make more informed decisions that are based on objective data rather than biases and heuristics. This can lead to better outcomes for their clients, as well as for the legal system as a whole. Additionally, empirical research can help to ensure that the legal system is fair and just, by identifying and addressing biases that may be present in the system.
In conclusion, it is important for lawyers to recognize that their thinking is prone to biases and heuristics, and that empirical research can help to overcome these biases and make more informed decisions in litigation. By using objective data and insights from behavioral sciences in pre-lit research, lawyers can improve their decision-making processes and ensure that the legal system is fair and just for all.