The Hidden Structure of Fact-Finding

Abstract

This Article offers a new account of legal fact-finding based on the dual-process framework in cognitive psychology. This line of research suggests that our brains possess two radically different ways of thinking. "System 1" cognition is unconscious, fast, and associative, while "System 2" involves effortful, conscious reasoning. Drawing on these insights, I describe the ways that unconscious processing and conscious reflection interact when jurors hear and decide cases. Most existing evidential models offer useful insights about the ways that juries use relevant information in deciding cases but fail to account for situations in which their decisions are likely to be affected by irrelevant stimuli. The dual-process approach, by contrast, is able to explain both probative and prejudicial influences on decision making. As a demonstration, I use the dual-process framework to explain the surprising result in People v. Rivera, a case in which a jury convicted a man of rape and murder despite the admission of exonerating DNA evidence. This result, I suggest, was not the product of an unusually lazy or unreasonable jury but rather illustrates the way that our ordinary cognitive processes can lead us to endorse quite unreasonable results if primed using certain common prosecutorial strategies.After elaborating the dual-process model in a descriptive form, I then consider some of its normative implications. Many leading evidence scholars have argued that verdicts resting on "pure" or "naked" statistical evidence are problematic. Although the dualprocess model of fact-finding is descriptive rather than normative, it nevertheless provides surprising insight into this debate by showing that our intuitive discomfort with verdicts that are based on purely statistical data may arise from the failure of such evidence to speak in terms that our unconscious, intuitive System 1 can process reliably. In such circumstances, intuitions about outcomes should be treated with caution. Thus, what unites the seemingly disparate examples of the † Assistant Professor, Florida State University College of Law. I am very grateful to

Scientific Thinking About Legal Truth

“…They use the synthesis of evidence, logic, life experience, and the rules of evidence to determine whether to rely on the testimony (Cao and Zhang, 2017 ). Finally, their decisions are guided by confidence in the coherence of the information (Spottswood, 2013 ).…”

On the limitations of a unitary model of the proof process

“…Rather, it could either take their probability estimations as a given and focus on how those judgments are combined and turned into verdicts, or it could attempt to unpack the sources of miscalibration so that they can be better understood (see e.g. Spottswood, 2013: 197–199). And of course, we can talk about the notion that jurors have varying levels of credence, and even quantify such levels mathematically in our theorizing, without making the silly assumption that jurors typically attach explicit numbers to their own levels of confidence throughout the process.…”

“…Moreover, it seems unlikely that a deliberating jury would be able to systematically examine the consistency of each item of evidence with multiple competing explanations, or rigorously justify intuitive feelings that one theory was more coherent or simple than another. Instead, they might often default to defending an existing intuition about which party’s case felt stronger, using the factors in an ad hoc way, rather than proceeding systematically from first principles with an open mind (see Spottswood, 2013: 190–191). If so, the prescriptive benefits of an explanationist approach may be surprisingly minimal.…”