In the previous articles of our series on confirmation bias, aka Perception Bias in the legal system, we explored the profound impact of confirmation bias on jury selection and decision-making processes. We discussed how bias can lead to biased evaluations of evidence and witness testimony, as well as the tendency to favor information that aligns with preexisting beliefs during jury deliberations. Building upon this foundation, in this final installment, we deliver into strategies and techniques aimed at mitigating the effects that Perception bias exerts throughout the course of a legal trial.
There is not an easy solution to mitigate the effects of the “mother of all biases.” Addressing confirmation bias requires a multifaceted approach involving a clear understanding of the underlying science, proactive measures during jury selection, and ongoing interventions throughout the trial process.
- Embracing Diversity in Jury Panels: In the previous installment in this article series, we discussed how a juror’s pre-existing beliefs can be reinforced during deliberation, exacerbating their already initiated predisposition towards confirmation bias. However, that is only the case if the other jurors share their point of view. A group can be inoculated against maladaptive group dynamics, like groupthink and group polarization, if steps are taken to ensure that group is composed of people from diverse backgrounds with differing points of view. Diversity brings different perspectives, life experiences, and knowledge to the deliberation process. By including individuals from various backgrounds, ethnicities, gender, and socioeconomic statuses, you expand the range of viewpoints and reduce the risk of homogenous bias. There are many reasons that ensuring jury diversity in a jury is important, including the fact that homogenous juries are highly susceptible to confirmation bias and groupthink.
- Avoiding Attorney Biases – Scientific Jury Selection: Another issue raised in the second article in this series is the role that confirmation bias plays in the promulgation and acceptance of pseudoscientific ideas. Trial consultants whose strategies are premised on pseudoscience can lead to ineffective and biased jury selection. However, most people behave as intuitive psychologists in their everyday lives. This means trial attorneys also feel that they can develop their own anecdotal and intuition-based strategies for oral voir dire, strategies that research has also found to be ineffective (as discussed in more detail in article 2 of our confirmation bias series).
Given how enticing intuitive psychology is, how can one ward against its deleterious effects? As with most things, the first step is admitting you have a problem. No one with a human brain and its limited cognitive capacity is immune to cognitive biases: not scientists, not jurors, and not lawyers. Thus, avoiding your own biases by implementing rigorous jury selection processes that are derived from scientific and statistical approaches is critically important. The previous criticism of intuitive approaches to jury selection was only criticism of the approach, not the goal. In fact, intuitive and scientific approaches to jury selection both use juror characteristics to predict trial outcomes. However, the intuitive approach to jury selection is subject to cognitive biases and relies on subjective impressions and stereotypes. The scientific approach to jury selection implements safeguards against human bias and uses objective methods. Crucially, the scientific approach recognizes that whether a juror characteristic predicts trial outcomes depends on the specifics of each and every case. Pre-trial research that is based on behavioral science can be used to collect data that can be assessed using predictive analytics to explore statistical relationships between demographic and psychographic factors and attitudes relevant to a particular case. These results can be used to develop scientifically validated questions to be included on a supplemental juror questionnaire (SJQ) to screen for prospective juror biases, which help mitigate the likelihood that verdicts are affected by confirmation bias. The results can also inform oral voir dire strategies. Questions can be developed based on objective data rather than confirmation bias, and those questions can be used to more accurately identify individuals who exhibit strong biases that could undermine impartiality.
Trial advice that is derived from pseudoscience has never had to be tested objectively to determine whether or not it is accurate. Instead, people point to their own anecdotal experience with seeing their strategies work effectively. However, by this point, hopefully it has been established that once we have a belief, we are predisposed only to see evidence that reinforces it. If a trial consultant developed an intuitive theory that includes the belief that athletes are not sympathetic towards injured victims, what do you think would happen when they encounter a juror who is both an athlete and reports being very sympathetic towards an injured victim? Based on what we know of human psychology, it is not likely they will revise their theory based on the disconfirming evidence. The more likely conclusion is that they will arrive at some justification that allows them to maintain their initial beliefs (e.g., “I only meant young athletes,” “That only applies to athletes who play team sports,” “They are exaggerating their sympathy – they just want to appear”). Every time an athlete does report being unsympathetic, they will selectively attend to that and point to that as evidence for their theory. Every time something happens to contradict that (i.e., an athlete does report feeling sympathetic) that evidence will be explained away or disregarded. The tendency to be blind to how we are affected by our own biases makes it important for intuition to remain only the starting point of a theory, a starting point that is then held up to an objective standard.
Leveraging a team of behavioral scientists is the best way to ensure that your intuitions about a case are supported by valid and objective evidence. Behavioral scientists not only possess expertise in the underlying science of confirmation bias but understand how to effectively study human behavior. Behavioral scientists aren’t immune to confirmation bias, but they do take careful steps to avoid succumbing to it.
Effective and accurate behavioral research and effective and accurate jury selection both require the same basic considerations, which makes the expertise of behavioral scientists powerfully applicable to jury selection. Both endeavors require an understanding of human psychology, expertise with applying the requisite research methodology to human behavior, and the capability to collect and analyze the data required for objective and valid conclusions. Human behavior is a complex and multifaceted issue to navigate, which makes having an expert to aid in that navigation can be extremely beneficial during trial preparation.
- Jury Instructions and Interventions: Remember, the first step to safeguarding against confirmation bias is admitting you are vulnerable to it, so educating the jury about this issue is important. Providing clear instructions to jurors about the importance of impartiality and highlighting the risks of confirmation bias can foster awareness and counter its effects during the trial. Ideally, a short informative video designed by psychologists could be shown to jurors before a trial. Judges can also remind jurors to remain open-minded, critically evaluate evidence, and consider alternate perspectives.
- The role of legal professionals: Lawyers and judges play a critical role in recognizing confirmation bias and actively addressing it through strategic questioning, cross-examination, and jury instructions. By challenging jurors’ biases through compelling arguments and evidence, legal professionals can encourage jurors to engage in more objective decision-making.
Future Directions and Recommendations:
Continued efforts are needed to advance the understanding of confirmation bias and develop evidence-based strategies to minimize its impact on the legal system.
- Technology-assisted jury selection: Exploring the use of artificial intelligence (AI) technology to assist in jury selection can significantly improve the integrity of the process. Algorithms can be developed to analyze a wide range of data, including demographic and psychographic information and case-specific information, to minimize bias and increase diversity in jury composition. Leveraging data and predictive analytics can help identify potential biases, allowing for a more informed and objective selection process. Additionally, AI tools can provide real-time feedback to legal professionals during jury selection, highlighting potential biases and ensuring a more representative and unbiased jury.
- Incorporating psychological insights into legal training and practice: Integrating knowledge from social psychology and quantitative methods into legal education and training can equip legal professionals with a deeper understanding of confirmation bias and other cognitive biases. AI can play a role in this through the use of AI-powered chatbots, which can engage in dialogue with legal professionals and provide feedback that enables them to navigate the complexities of jury selection and trial advocacy with greater awareness of their own biases.
- Advancing research on confirmation bias and its impact on litigation: Continued research on confirmation bias and its effects on jury selection and trial outcomes can provide further insights and inform evidence-based strategies for bias mitigation. Collaborations between social scientists, legal scholars, and practitioners can foster a more comprehensive understanding of confirmation bias within the legal context.
Conclusion:
Confirmation bias poses a significant challenge within the legal system, influencing jury selection and the overall fairness of trial outcomes. By understanding the psychological mechanisms behind confirmation bias and implementing strategies to mitigate its effects, legal professionals and jury analysts can enhance the integrity and impartiality of the legal process. Recognizing the relevance of confirmation bias and working towards its mitigation will pave the way for a fairer and more equitable legal system for all.