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Justice will be done: Forget the consequences
Blinded by bias
Selecting an unbiased jury is crucial for a just trial
Imagine you are considering whether a man is guilty of dangerous driving. According to US law, defendants in this kind of liability case are supposed to be judged on their conduct, regardless of the consequences of that conduct. It is only when deciding the damages to be paid that the courts should consider the consequences. But it is easy to see how your judgement might be influenced by the knowledge that the speeding car ended up crippling a pedestrian. This tendency, known as hindsight bias, is very difficult to avoid; several studies have shown that potential jurors are unable to focus solely on the person’s conduct and ignore the irrelevant information. Simply warning the jurors not to consider the consequences might help – though these kinds of biases can be very difficult to overcome through conscious reasoning (New Scientist, 12 November 2011, p 38). Edie Greene, a psychologist at the University of Colorado in Colorado Springs, instead suggests that the case should be split into separate liability and damages trials, so that the jury only receives the relevant facts – a process known as bifurcation. Running re-enactions of real cases, she found that bifurcation better enabled the jury to focus on the correct information, so that they gave
a fairer judgement overall. Just telling the jurors not to consider the irrelevant information, on the other hand, was largely ineffective (Law and Human Behaviour, vol 29, p 505). Split trials already take place in the UK, where a dangerous driver will stand in a criminal court to decide whether their actions were criminal, and a civil court where the injured person may sue for damages separately. It is also employed in some US states – but Greene’s results suggest that its use should become far more common.
Skin-deep justice According to a study of 77,000 US criminal cases, race and gender have a strong influence on the sentence a person receives for the same type of crime AVERAGE SENTENCE LENGTH 46 MONTHS BLACK
+12%
HISPANIC OTHER NON-WHITE – 12%
+9.8% +5%
FEMALE
SOURCE: JOURNAL OF LAW AND ECONOMICS, VOL. 46 (APRIL 2001)
Forget the consequences
Standing outside many courtrooms across the world, you will find a dignified figure known as Lady Justice, with a pair of scales in one hand and a blindfold often covering her eyes. They are symbols of the objectivity of courts, which are meant to weigh up the facts of a case regardless of the person’s identity. It is surprisingly hard to achieve, and the effects are even more insidious than you might imagine. Racial prejudice is perhaps the best explored issue. Numerous studies have shown that both judge and jury can harbour implicit biases that could swing a conviction and sentence (Current Directions in Psychological Science, vol 20, p 58). In one particularly comprehensive study, David Mustard at the University of Georgia in Athens considered more than 77,000 cases from the 1990s. Even when he controlled for all kinds of mitigating factors such as wealth, education and previous criminal record, race accounted for around 10 per cent of the differences in the length of a sentence (The Journal of Law and Economics, vol 44, p 285). The influence of bias can stretch to every aspect of a trial. For example, the prejudice might not be against the defendant, but an eyewitness. When Lara Frumkin, then at the University of Maryland in Baltimore, set up mock trials using videotaped eyewitness testimony, the jury perceived the same person to be less credible if they spoke with a foreign accent (Psychology, Crime & Law, vol 13, p 317). What can be done? Some suggest more extensive testing of potential jurors for implicit biases, though that option remains controversial. One surprising solution might be to simplify the language of the court. For instance, in some US states where a jury advises on the sentencing of the death penalty, the jurors’ instructions, which are meant to guide them through the decision, can be very hard for a layperson to understand. Confused, they often rely on gut instincts to make the choice, giving a freer rein to bias. Rewriting the instructions in plainer English reduced this tendency in a set of mock trials, so that the participants were equally likely to recommend the same sentence for a black or white criminal (Behavioural Sciences and the Law, vol 26, p 603). Even so, some psychologists remain sceptical that we will ever be able to eliminate all the effects of prejudice. “Our experiences, attitudes and beliefs always influence how we interpret things,” says Greene. n Jessica Hamzelou is a writer based in London 12 May 2012 | NewScientist | 47
Selecting an unbiased jury is crucial for a just trial
Imagine you are considering whether a man is guilty of dangerous driving. According to US law, defendants in this kind of liability case are supposed to be judged on their conduct, regardless of the consequences of that conduct. It is only when deciding the damages to be paid that the courts should consider the consequences. But it is easy to see how your judgement might be influenced by the knowledge that the speeding car ended up crippling a pedestrian. This tendency, known as hindsight bias, is very difficult to avoid; several studies have shown that potential jurors are unable to focus solely on the person’s conduct and ignore the irrelevant information. Simply warning the jurors not to consider the consequences might help – though these kinds of biases can be very difficult to overcome through conscious reasoning (New Scientist, 12 November 2011, p 38). Edie Greene, a psychologist at the University of Colorado in Colorado Springs, instead suggests that the case should be split into separate liability and damages trials, so that the jury only receives the relevant facts – a process known as bifurcation. Running re-enactions of real cases, she found that bifurcation better enabled the jury to focus on the correct information, so that they gave
a fairer judgement overall. Just telling the jurors not to consider the irrelevant information, on the other hand, was largely ineffective (Law and Human Behaviour, vol 29, p 505). Split trials already take place in the UK, where a dangerous driver will stand in a criminal court to decide whether their actions were criminal, and a civil court where the injured person may sue for damages separately. It is also employed in some US states – but Greene’s results suggest that its use should become far more common.
Skin-deep justice According to a study of 77,000 US criminal cases, race and gender have a strong influence on the sentence a person receives for the same type of crime AVERAGE SENTENCE LENGTH 46 MONTHS BLACK
+12%
HISPANIC OTHER NON-WHITE – 12%
+9.8% +5%
FEMALE
SOURCE: JOURNAL OF LAW AND ECONOMICS, VOL. 46 (APRIL 2001)
Forget the consequences
Standing outside many courtrooms across the world, you will find a dignified figure known as Lady Justice, with a pair of scales in one hand and a blindfold often covering her eyes. They are symbols of the objectivity of courts, which are meant to weigh up the facts of a case regardless of the person’s identity. It is surprisingly hard to achieve, and the effects are even more insidious than you might imagine. Racial prejudice is perhaps the best explored issue. Numerous studies have shown that both judge and jury can harbour implicit biases that could swing a conviction and sentence (Current Directions in Psychological Science, vol 20, p 58). In one particularly comprehensive study, David Mustard at the University of Georgia in Athens considered more than 77,000 cases from the 1990s. Even when he controlled for all kinds of mitigating factors such as wealth, education and previous criminal record, race accounted for around 10 per cent of the differences in the length of a sentence (The Journal of Law and Economics, vol 44, p 285). The influence of bias can stretch to every aspect of a trial. For example, the prejudice might not be against the defendant, but an eyewitness. When Lara Frumkin, then at the University of Maryland in Baltimore, set up mock trials using videotaped eyewitness testimony, the jury perceived the same person to be less credible if they spoke with a foreign accent (Psychology, Crime & Law, vol 13, p 317). What can be done? Some suggest more extensive testing of potential jurors for implicit biases, though that option remains controversial. One surprising solution might be to simplify the language of the court. For instance, in some US states where a jury advises on the sentencing of the death penalty, the jurors’ instructions, which are meant to guide them through the decision, can be very hard for a layperson to understand. Confused, they often rely on gut instincts to make the choice, giving a freer rein to bias. Rewriting the instructions in plainer English reduced this tendency in a set of mock trials, so that the participants were equally likely to recommend the same sentence for a black or white criminal (Behavioural Sciences and the Law, vol 26, p 603). Even so, some psychologists remain sceptical that we will ever be able to eliminate all the effects of prejudice. “Our experiences, attitudes and beliefs always influence how we interpret things,” says Greene. n Jessica Hamzelou is a writer based in London 12 May 2012 | NewScientist | 47