DEBIASING THE LAW:
How understanding cognitive biases leads to a more just legal system
By Dr. Gleb Tsipursky
Lawyers strive for fairness and justice in every case they handle. However, the behavioral science research shows that human reasoning in legal contexts is inherently flawed and vulnerable to cognitive biases. It is therefore crucial for legal professionals to understand and address these biases in order to ensure the integrity of the legal process.
The Rhyme-As-Reason Effect: A lesson from the O. J. Simpson Case
One of the most prominent examples of cognitive bias in legal proceedings is the famous defense from the O. J. Simpson trial:“ If it doesn’ t fit, you must acquit.” This statement, which has since become a part of legal folklore, is a prime example of the rhyme-as-reason effect, a cognitive bias where phrases that are easier to process – known as having cognitive fluency – sound more believable to the human mind.
The O. J. Simpson trial, held in 1995, was one of the most publicized criminal trials in American history. Simpson, a former professional football player and actor, was accused of the brutal murders of his ex-wife Nicole Brown Simpson and her friend Ronald Goldman. The case was filled with dramatic moments, but perhaps none more so than when Simpson tried on a pair of gloves allegedly used in the murders. The gloves appeared to be too small for Simpson’ s hands, leading to the now-infamous phrase by defense attorney Johnnie Cochran:“ If it doesn’ t fit, you must acquit.”
This statement is a classic example of the rhyme-as-reason effect. This cognitive bias suggests that if a statement or argument is presented in a way that is easy to process or understand, such as rhyming, it is more likely to be perceived as true. The defense team in the Simpson trial used this cognitive bias to their advantage, crafting a simple, memorable phrase that resonated with the jury. The phrase was catchy, easy to remember, and it simplified a complex legal argument into a straightforward, easily digestible concept. This ultimately contributed to Simpson’ s acquittal.
Anchoring: The impact of first impressions
Another pervasive cognitive bias in legal settings is anchoring. Anchoring is a cognitive bias that refers to the human tendency to rely heavily on the first piece of information encountered( the anchor) when making decisions. Once an anchor is set, all subsequent judgments are made by adjusting away from that anchor. The power of the anchor often overshadows subsequent evidence, causing it to be assessed through the lens of the first piece of information.
Consider, for instance, a scenario where a juror learns about a defendant’ s prior criminal record before hearing about the specific details of the current case. This initial piece of information serves as an anchor, setting a tone of criminality around the defendant. As a result, the juror may be more inclined to view the defendant as guilty, regardless of the evidence presented in the current case. This is the anchoring effect in action, and it can significantly influence the outcome of a case.
Recognizing the anchoring effect is crucial for us as legal professionals. Our understanding of this cognitive bias can help us strategize the presentation of evidence and arguments in a way that minimizes its impact. For instance, if we are aware that the prosecution is likely to introduce a defendant’ s criminal history early in the trial, we might preemptively address this issue in our opening statement. By doing so, we can set a different anchor, one that contextualizes the defendant’ s past and emphasizes the importance of judging the current case on its own merits.
Moreover, understanding the anchoring effect can also help us in our negotiations and plea bargaining. For example, the first offer made in a negotiation often serves as an anchor that influences subsequent discussions. If we are aware of this, we can use it to our advantage by making the first offer and setting an anchor that is favorable to our client.
However, merely recognizing the anchoring effect is not enough. We must also actively work to mitigate its impact. This could involve educating jurors about the existence of cognitive
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