American Injustice: Part 6 of 10

Based on the book Unfair: The New Science of Criminal Injustice by Adam Benforado.
For more detailed information, read the book.

The Science of Bias

Expert testimony is essential when there are people more qualified to interpret evidence than we are. The problem is that experts can lie, and we often rely on our own perceptive skills when they are flawed and dismiss them when they are accurate. We are sometimes blinded by our deference to expertise. Also, the common cues we use to detect lying are mostly inaccurate. Attractiveness and social status of the witness carry far more weight than they should. Nervousness is misinterpreted as lying. The average person can detect lies only 54 percent of the time, barely more than chance, in spite of being very confident. Even the polygraph test and fMRI and EEG brain scans have been declared inadmissible in court because they have not been proven a reliable measure of truthfulness.

Neuroscience is a double edged sword. It may eventually be perfected to be a reliable measure of truthfulness, but it can also indicate that brain function is responsible for criminal behavior thus absolving the person from responsibility. Even if a new neurological method is proven valid by testable, peer-reviewed research with an acceptable error rate, it will still affect how we view justice, the issue of free will and criminal responsibility, and the issue of privacy. Admissibility of evidence in court needs to be up to judges with adequate expertise in scientific research, which very few judges have.

Judges not only have inadequate scientific knowledge, they are nominated and confirmed by people with political agendas. All people tend to see third parties (judges, the media, debate monitors, and referees) as favoring their opponents unfairly when they disagree with the opinion. Judges with whom we disagree are seen as “activist judges” rather than as neutral and objective. We tend to see judicial bias even when it does not exist, and we view that bias as a conscious choice. That’s why there are rules prohibiting judges from holding political office, soliciting gifts from those coming before the court and from allowing personal relationships to influence decisions. Violations of these rules are very rare. The major problem is unconscious bias. No judge is a truly neutral umpire. They frequently use intuition rather than deliberative reasoning in their rulings.

Studies reveal that judges are influenced by their political affiliation, especially conservative judges. They are also influenced by age, gender, ethnicity, religion, military service, and whether they parent a son or daughter. Judges who have daughters are more likely to be favorable to equal pay and reproductive rights, for example. That makes judicial diversity very important and makes stare decisis (adhering to earlier court cases decided by educated European, Christian males) very suspect. It took 180 years for the Supreme Court to include an African American, 190 years to include a woman, and 220 years to include an Hispanic justice.

One powerful bias is the anchoring effect. A numerical judgement is strongly effected by a preliminary number, even a random number. The sentence a judge gives can be influenced by a number recommended by a prosecutor or even by the roll of dice. Research has shown that expertise and experience does not alter this effect.

Even very subtle factors can influence judges. Several research studies have shown that judges are much more lenient early in the day or right after a meal break than late in the day. As judges get tired, they rely on mental shortcuts but are completely unaware of their bias. Also, judges who have made several decisions in a particular direction, will make the next decision in a way that balances what they think the fair ratio should be.

Law school training inculcates lawyers and judges with the false idea that laws are consistent, predictable and fair. Belief systems such as Justice Antonin Scalia’s textual orginalism does not eliminate bias, it just provides a cover of legitimacy to bias and increases a false sense of certainty. Judges, like the rest of us, tend to form opinions and then find data to back up those opinions. Judges and their clerks conduct narrow, targeted searches to find the data that corroborates what they already think. Analytical skill and increased data do not improve decisions. Even internet search engines are programmed to give results that are skewed by your previous searches. Amicus curiae briefs are advocacy documents designed to persuade, not to expand knowledge.

Changing these biases requires collecting, aggregating and evaluating data. Seminars on implicit bias, record keeping by courts and individuals, and systems for feedback to judges, lawyers, police officers, and jurors need to be in place. Without feedback, court personnel do not see critical patterns in their own behavior. Doubt is not the enemy of justice, blind certainty is. Everyone in the justice system must be ready to look for and recognize bias and admit error. Stubbornly defending previous decisions and actions does not make them more correct.

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