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From devil's advocate to crime fighter: confirmation bias and debiasing techniques in prosecutorial decision-making
Uppsala University, Disciplinary Domain of Humanities and Social Sciences, Faculty of Law, Department of Law.ORCID iD: 0000-0002-3811-7517
Uppsala University, Disciplinary Domain of Humanities and Social Sciences, Faculty of Law, Department of Law.
Uppsala University, Disciplinary Domain of Humanities and Social Sciences, Faculty of Social Sciences, Department of Psychology.
2019 (English)In: Psychology, Crime and Law, ISSN 1068-316X, E-ISSN 1477-2744, Vol. 25, no 5, p. 494-526Article in journal (Refereed) Published
Abstract [en]

This research examines the role of confirmation bias in prosecutorial decisions before, during and after the prosecution. It also evaluates whether confirmation bias is reduced by changing the decision maker between arrest and prosecution. In Experiment 1, Swedish prosecutors (N = 40) assessed 8 scenarios where they either decided themselves or were informed about a colleague's decision to arrest or not arrest a suspect. Participants then rated how trustworthy the suspect's statement was as well as the strength of new ambiguous evidence and the total evidence. They also decided whether to prosecute and what additional investigative measures to undertake. In Experiment 2 the same method was used with Law and Psychology students (N = 60). Overall, prosecutors' assessments before the prosecution indicated that they were able to act as their own devil's advocate. Also, their assessments while deciding about whether to prosecute were reasonably balanced. However, after pressing charges, they displayed a more guilt-confirming mindset, suggesting they then took on the role as crime fighters. This differed from the student sample in which higher levels of guilt confirmation was displayed in relation to arrested suspects consistently before, during and after a prosecution decision. The role of prosecutors' working experience is discussed.

Place, publisher, year, edition, pages
Taylor & Francis Group, 2019. Vol. 25, no 5, p. 494-526
Keywords [en]
confirmation bias, cognitive bias, criminal procedure, arrest, prosecute, debiasing
National Category
Law and Society
Research subject
Jurisprudence
Identifiers
URN: urn:nbn:se:uu:diva-351673DOI: 10.1080/1068316X.2018.1538417ISI: 000466385700005OAI: oai:DiVA.org:uu-351673DiVA, id: diva2:1237551
Available from: 2018-08-09 Created: 2018-08-09 Last updated: 2019-05-22Bibliographically approved
In thesis
1. Confirmation Bias in Criminal Cases
Open this publication in new window or tab >>Confirmation Bias in Criminal Cases
2018 (English)Doctoral thesis, comprehensive summary (Other academic)
Abstract [en]

Confirmation bias is a tendency to selectively search for and emphasize information that is consistent with a preferred hypothesis, whereas opposing information is ignored or downgraded. This thesis examines the role of confirmation bias in criminal cases, primarily focusing on the Swedish legal setting. It also examines possible debiasing techniques.

Experimental studies with Swedish police officers, prosecutors and judges (Study I-III) and an archive study of appeals and petitions for new trials (Study IV) were conducted. The results suggest that confirmation bias is at play to varying degrees at different stages of the criminal procedure. Also, the explanations and possible ways to prevent the bias seem to vary for these different stages. In Study I police officers’ more guilt presumptive questions to apprehended than non-apprehended suspects indicate a confirmation bias. This seems primarily driven by cognitive factors and reducing cognitive load is therefore a possible debiasing technique. In Study II prosecutors did not display confirmation bias before but only after the decision to press charges, as they then were less likely to consider additional investigation necessary and suggested more guilt confirming investigation. The driving forces need further examination. Study III suggests that pretrial detentions influence judges’ perception of the evidence strength, making them more likely to convict, in cases where they themselves detained. This is indicative of a confirmation bias with social explanations, which, possibly, can be mitigated by changing decision maker between detention and main hearing. The confirmatory reasoning in Study I-III can be considered rational or irrational, following different types of rationality, like probabilistic or judicial rationality. In Study IV, statistical estimates based on empirical data from the Apellate Courts and the Supreme Court indicate that far from all wrongfully convicted who appeal or petition for a new trial are acquitted. A robustness analysis confirmed that these overall conclusions hold over a wide variety of assumptions regarding unknown parameters.                         

Also, the usage of empirical methods to study law and legal phenomena is discussed. The concept of Evidence-Based Law (EBL) is used to exemplify how empirical legal research may benefit both legal scholarship and law in a wider sense.

Place, publisher, year, edition, pages
Uppsala: Department of Law, Uppsala University, 2018. p. 284
Keywords
legal decision making, bias, confirmation bias, criminal cases, criminal procedure, police, prosecutor, judge, legal system, empirical legal research, evidence based law, debiasing technique
National Category
Law and Society Applied Psychology
Research subject
Jurisprudence
Identifiers
urn:nbn:se:uu:diva-351709 (URN)978-91-506-2720-6 (ISBN)
Public defence
2018-09-28, Sal IV, Universitetshuset, Biskopsgatan 3, 753 10 Uppsala, Uppsala, 10:15 (English)
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Available from: 2018-09-05 Created: 2018-08-10 Last updated: 2018-09-05

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