Can Defense Attorneys Detect Forensic Confirmation Bias?

Abstract

Abstract. Knowledge of task-irrelevant information undermines the probative value of forensic evidence (i.e., forensic confirmation bias). Cross-examination may sensitize jurors to bias – but do attorneys recognize when bias has tainted evidence against their client and adjust their cross-examination strategy accordingly? To address this question, 130 defense attorneys imagined representing a man charged with manslaughter and reviewed a case file that included, among other things, an autopsy report from a medical examiner who was either aware or unaware of their client’s recanted confession before ruling the death a homicide. When the examiner knew of the confession, attorneys rated the autopsy as no less probative or reliable, they were no less confident in their client’s guilt, and only 46% raised the possibility of confirmation bias on cross-examination. Our findings suggest that defense attorneys underappreciate the impact of forensic confirmation bias, such that biased forensic testimony would be better avoided via procedural reform.

Forensic Confirmation Bias: Do Jurors Discount Examiners Who Were Exposed to Task‐Irrelevant Information?*†

“…It is unlikely, however, that real world jurors would hear an examiner make such a concession. A recent study found that defense attorneys failed to recognize when confirmation bias had tainted evidence against their client, such that only 46% of attorneys who read a patently biased autopsy report asked the medical examiner about potential bias during cross-examination (67). Moreover, while many examiners recognize that cognitive bias can affect their peers, few believe that they are personally vulnerable to bias (i.e., a "bias blind spot;" [24][25]).…”

The Relationship Between Confirmation Bias and Depression Level

“…However, through "Figure 1", it is clear that our depression level does have some impact on our level of confirmation bias. People with confirmation bias tend to seek and select the information that confirms their previous beliefs, and ignore all the disadvantaged information that comes to them [1]. People with depression have higher level of anxiety, that cause people to have sleeping problems, and difficulties on concentration, which will lead them to seek the information that is confirming their preexisting belief [13].…”

“…Confirmation bias is what all the human being had, and is what that help persist people's belief and keep helping people to reach the goal they want eventually. A confirmation bias is the tendency to seek, select, or to interpret the information that is confirmed through human's pre-existing belief, and this phenomenon is ubiquitous [1]. In other word, confirmation bias is the tendency to interpret the information in a way that confirms one's preexisting belief.…”

“…In other word, confirmation bias is the tendency to interpret the information in a way that confirms one's preexisting belief. This phenomenon is well known in the forensic science [1]. People are willing to believe in what they previously believe, and seek the information about that pre-existing belief, and make a quick decision in different situations [2].…”

“The Psychology of Forensic Evidence”

“…Attorneys are expected to identify risks that could jeopardise their clients' interests, but their role in detecting forensic bias has largely been neglected in today's literature. Despodova, Kukucka, and Hiley (2020) took on this understudied topic by assessing whether defense attorneys can detect if an autopsy report from a medical examiner had been tainted by knowledge of the defendant's recanted confession. Defense attorneys appeared insensitive to the possibility of biased forensic reporting.…”