Psychological Factors of Subjectivity in Judge’s Decisions
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Abstract
The paper focuses upon cognitive-psychological phenomena leading judge’s decision making. According to general law presumptions, the judge tries the case in the most possible objective and rational way, considering all necessary data and law and in this way providing the only best decision.
During the last four decades, psychological studies have given a good basis to cast these presumptions in doubt. It has been shown that the judge often takes his decisions using not exact, but intuitive decision algorithms (heuristics) and uses only a part of all data that would have been indispensable for a really perfect decision. Especially important is demonstration of a hidden way, in which such intuitive decision algorithms work. Such an algorithm functions without any control of consciousness and acts in a spontaneous way. This makes them a channel for judge’s uncontrolled subjectivity and brings diversity of judge’s decisions in identical cases.
The paper reviews the main stages of the trial and discusses intuitive decision algorithms used on each of them. Their impact on judge’s decisions is discussed, as well.
The principal intuitive decision algorithms used by judges have been discussed. The most important ones, most often and deeply affecting judge’s decisions are conformation bias, availability and anchoring algorithms.
The impact of the use of these algorithms upon decisions of judges is demonstrated. The main consequences of the use of discussed intuitive decision algorithms are diversity of the ways and outcomes in decisions of different judges in identical situations. The analysis of psychological experiments carried out in different countries has shown that the effect of this factor on judging is considerable, which violates one of the most important legal principles – principle of uniformity, demanding similar decisions in similar cases.
Especially, an important discovery is the dependence of the relative frequency of the use of intuitive algorithms on different psychological states of the judge’s mind, especially his mood.
Based upon related publications, it is shown that the methods should be sought that could support judges in making more objective decisions and preventing them from any unwanted impact of heuristics algorithms.
The obstacles and problems in arranging such a support are discussed in the paper.
The most important of this seems to be the unconscious functioning of the intuitive algorithms – their impact is often of covered nature and any judge’s attempt to realize them meets problems.
This explains failure of attempts to support judges by simple information on intuitive algorithms and their impact upon judge’s decisions.
During the last four decades, psychological studies have given a good basis to cast these presumptions in doubt. It has been shown that the judge often takes his decisions using not exact, but intuitive decision algorithms (heuristics) and uses only a part of all data that would have been indispensable for a really perfect decision. Especially important is demonstration of a hidden way, in which such intuitive decision algorithms work. Such an algorithm functions without any control of consciousness and acts in a spontaneous way. This makes them a channel for judge’s uncontrolled subjectivity and brings diversity of judge’s decisions in identical cases.
The paper reviews the main stages of the trial and discusses intuitive decision algorithms used on each of them. Their impact on judge’s decisions is discussed, as well.
The principal intuitive decision algorithms used by judges have been discussed. The most important ones, most often and deeply affecting judge’s decisions are conformation bias, availability and anchoring algorithms.
The impact of the use of these algorithms upon decisions of judges is demonstrated. The main consequences of the use of discussed intuitive decision algorithms are diversity of the ways and outcomes in decisions of different judges in identical situations. The analysis of psychological experiments carried out in different countries has shown that the effect of this factor on judging is considerable, which violates one of the most important legal principles – principle of uniformity, demanding similar decisions in similar cases.
Especially, an important discovery is the dependence of the relative frequency of the use of intuitive algorithms on different psychological states of the judge’s mind, especially his mood.
Based upon related publications, it is shown that the methods should be sought that could support judges in making more objective decisions and preventing them from any unwanted impact of heuristics algorithms.
The obstacles and problems in arranging such a support are discussed in the paper.
The most important of this seems to be the unconscious functioning of the intuitive algorithms – their impact is often of covered nature and any judge’s attempt to realize them meets problems.
This explains failure of attempts to support judges by simple information on intuitive algorithms and their impact upon judge’s decisions.
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
