Judging, Fast and Slow: Using Decision-Making Theory to Explore Judicial Fact Determination
| Author | Emma Cunliffe |
| Published date | 01 April 2014 |
| Date | 01 April 2014 |
| DOI | http://doi.org/10.1350/ijep.2014.18.2.447 |
| Published By | Sage Publications, Inc. |
| Subject Matter | Article |
USING DECISION-MAKING THEORY TO EXPLORE JUDICIAL FACT DETERMINATION
Judging, fast and slow:*
using decision-making
theory to explore judicial
fact determination
By Emma Cunliffe**
Associate Professor, UBC Faculty of Law
Abstract Empirical research with judges and jurors has provided research into
the process by which legal decision-makers come to a view about the facts of the
case. However, much remains uncertain, including questions about how judges’
reasoning processes might differ from jurors’ when thinking through the facts
of a case, and how well the insights of decision-making research translate into
the noisy context of real criminal trials. This article offers a preliminary
exploration of connections between Pennington and Hastie’s story model of
decision-making, heuristics and biases research, and areas of fact determi-
nation that have presented persistent difficulties to criminal courts, including
sexual assault, child homicide and the assessment of expert testimony. I discuss
some of the key insights that cognitive psychology can offer to those who are
interested in understanding how decision-makers think about the facts of a
case, and where decision-makers may be prone to error.
Keywords Judges; Heuristics and biases; Implicit prejudice; Stereotyping; Expert
decision-making
doi:10.1350/ijep.2014.18.2.447
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2014) 18 E&P 139–180 139
* With apologies to Daniel Kahneman.
** Email: cunliffe@law.ubc.ca. I am grateful to Gary Edmond, David Hamer, Kristy Martire, Brettel
Dawson, Brian Lennox, Michael Pollanen and the participants in the 2013 Expert Evidence
Workshop at UBC for offering helpful feedback on this article and the ideas contained within it.
Exemplary research assistance was supplied by Yun Li, Pooja Parmar, Camille Israel, Jennifer Dyck
and Tal Letourneau. This research was funded by a Social Sciences and Humanities Research
Council of Canada Standard Research Grant.
Law is, and cannot be anything but, the creation of human minds;
legal materials cannot answer legal questions, people do.1
mpirical research with judges and jurors has provided insights into the
process by which legal decision-makers come to a view about the facts of
a case. A relatively well-established body of research suggests that jurors
reach their decisions by formulating a story, or narrative, of the events in a case
and testing that story against the available verdicts.2Other research suggests that
judges may be prone to many of the cognitive biases and systematic errors in
reasoning that have been documented by cognitive psychologists.3However,
much remains uncertain, including questions about how judges’ reasoning
processes might differ from jurors when thinking through the facts of a case, and
how well the insights of decision-making research translate into the noisy context
of real criminal trials.
This article offers a preliminary exploration of connections between the story
model of decision-making, heuristics and biases research, and areas of fact deter-
mination that have presented persistent difficulties to criminal courts. In
particular, I discuss some of the key insights that cognitive psychology can offer to
those who are interested in understanding how decision-makers think about the
facts of a case, and where they may be prone to error. Writing from Canada, where
99 per cent of criminal cases are tried by judge alone,4I focus particularly on
judges as fact-finders. The Canadian practice offers two relevant and interesting
features for work such as this. First, judges (unlike jurors) find themselves
repeatedly engaged in fact determination over the course of a career, and are
therefore professionally interested in the challenges of finding facts accurately.
Secondly, the obligation imposed on judges (but not jurors) to provide reasons
offers academic researchers some record of the reasoning process followed by
these triers of fact. These two features make Canada a particularly fruitful juris-
diction in which to study the possibilities and constraints of fact determination in
real cases.
140 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
USING DECISION-MAKING THEORY TO EXPLORE JUDICIAL FACT DETERMINATION
E
1 D. Simon, ‘Freedom and Constraint in Adjudication: A Look Through the Lens of Cognitive
Psychology’ (2001) 67 Brooklyn Law Journal 1097 at 1097.
2 N. Pennington and R. Hastie, ‘Evidence Evaluation in Complex Decision Making’ (1986) 51 Journal of
Personality and Social Psychology 242; W. Twining, Rethinking Evidence: Exploratory Essays, 2nd edn
(Cambridge University Press: Cambridge, 2006) at 306–11 and 443–6.
3 For example, C. Guthrie, J. Rachlinski and A. Wistrich, ‘Blinking on the Bench: How Judges Decide
Cases’ (2007) 93 Cornell Law Review 1; Simon, above n. 1.
4 L. Dufraimont, ‘Evidence Law and the Jury: A Reassessment’ (2008) 53 McGill Law Journal 199 at 209.
This article uses sexual assault and child homicide trials to illustrate the potential
for psychological research to help lawyers and legal academics understand the
processes that underlie fact determination. Examples from these fields have been
chosen because such cases seem to provoke considerable anxiety for criminal
lawyers and may be especially vulnerable to error. The persistence of low
conviction rates for sexual assault despite reforms that have tried to prevent past
injustices to sexual assault victims from recurring is an example of a legal
problem that seems intractable, or at least unresponsive to normal legal tools.5At
the same time, Innocence Projects in the USA have documented DNA exonerations
for rapes (particularly rape/murders) in numbers that suggest that there is also a
problem with wrongful convictions in this field or a sub-set of the field.6The same
dual concern about over- and under-prosecution marks child homicide. Numerous
wrongful convictions have been identified in the past decade and are widely
attributed to erroneous expert evidence.7However, concerns that the difficulties
of detecting child homicide may lead to under-enforcement are also expressed
within the literature.8Good evidence of error in fact determination makes sexual
assault and child homicide particularly productive fields for the application of
insights from cognitive psychology.
In section 1 below, I introduce the Pennington and Hastie ‘story model’ of complex
decision-making and draw on Dan Simon’s work to consider how it may apply to
judges who act as finders of fact. I link Simon’s account to the heuristics and
biases work pioneered by Daniel Kahneman, and Amos Tversky, and particularly
their concepts of coherence and bias. In section 2 below, I explain two types of
cognitive error identified by Kahneman and others—substitution and stereo-
typing—that may be particularly relevant to the trial context, and draw on
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 141
USING DECISION-MAKING THEORY TO EXPLORE JUDICIAL FACT DETERMINATION
5 For example, W. Larcombe, ‘Falling Rape Conviction Rates: (Some) Feminist Aims and Measures for
Rape Laws’ (2011) 19 Feminist Legal Studies 27; K. Daly and B. Bouhours, ‘Rape and Attrition in the
Legal Process: A Comparative Analysis of Five Countries’ (2010) 39 Crime and Justice 565.
6 These wrongful convictions are ‘wrong person errors’ identified by DNA testing, and are not false
complaints. See, e.g., B. L. Garrett and P. J. Neufeld, ‘Invalid Forensic Science Testimony and
Wrongful Convictions’ (2009) 95 Virginia Law Review 1 at 8. The concentration of rape cases among
identified wrongful convictions is at least partly attributable to the fact that this crime is
particularly likely to yield biological evidence of the perpetrator for reanalysis.
7 For example, in England: RvClark [2003] EWCA Crim 1020; RvCannings [2004] EWCA Crim 1; Rv
Anthony [2005] EWCA Crim 952; RvHarris [2006] 1 Cr App R 5 (quashing two convictions in separate
cases, and reducing a third from murder to manslaughter); RvHenderson [2010] EWCA Crim 1269.
In Canada, see RvMullins-Johnson 2007 ONCA 720; RvSherret-Robinson 2009 ONCA 886; RvCM 2010
ONCA 690; RvCF 2010 ONCA 691; RvKumar 2011 ONCA 120; RvMarquardt 2011 ONCA 281; RvBrant
2011 ONCA 362.
8 For example, J. Frederick, C. Goddard and J. Oxley, ‘What Is the “Dark Figure” of Child Homicide
and How Can It Be Addressed in Australia?’ (2012) 1 International Journal of Injury Control and Safety
Promotion 9.
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