The Hidden Structure of Fact-Finding

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 dual-process 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 Rivera trial and the naked statistical evidence debate is that, in both contexts, it feels right to do wrong

Dan Hughes\u27 Dyadic Developmental Psychotherapy for Children with Trauma and Attachment Histories: an Introduction for Caretakers and Therapists

Children who learned from early experience to not trust adults for help or care can present troubling emotional challenges to loving caretakers. This presentation will explain the experiential logic behind that mistrust, as well as Dan Hughes’ relationship-focused approach to re-engaging such children. Attendees will hear the theory behind Hughes’ model, practice an attitude of PACE (Playful, Accepting, Curious and Empathic), and view short clips of a variety of DDP therapy sessions (subtitled)

Live Hearings and Paper Trials

This Article explores a constantly recurring procedural question: When is fact-finding improved by a live hearing or trial, and when would it be better to rely on a written record? Unfortunately, when judges, lawyers, and rulemakers consider this issue, they are led astray by the widely shared—but false—assumption that a judge can best determine issues of credibility by viewing the demeanor of witnesses while they are testifying. In fact, a large body of scientific evidence indicates that judges are more likely to be deceived by lying or mistaken witnesses when observing live testimony than if the judges were to review a paper transcript. Witness presence, in other words, may often harm, rather than improve, the accuracy of credibility assessments. The fact that legal actors value hearings for mistaken reasons does not mean that hearings have no value, but it does raise the concern that live procedure will be employed when it is unneeded or even counterproductive, especially given the lack of available guidance on this question. In this Article, I attempt to remedy this problem by suggesting some guiding principles that lawyers, courts, and rulemakers could rely on when choosing between live and paper-based fact-finding. Live hearings and trials will often, but not always, do more harm than good. In addition to the fact that demeanor cues generally impair credibility judgments, there are a number of cognitive biases that may arise from having one’s first impressions of a witness be visual and auditory impressions. These include a persistent human tendency to trust or distrust witnesses based on their physical attractiveness, their social status, their race, or other features that may make them similar to, or different than, the fact-finder. On the flip side, live factfinding may help a judge make sense of confusing evidence. In addition, in-court hearings may feel fairer to participants than paper-based decisions, due in large part to the desire to have expressive input in decisions that affect their well-being. And occasionally, a live hearing or trial may be preferable for reasons of cost or practicality. A better understanding of the costs and benefits of live fact-finding could have profound implications for the design of our civil justice system. Our current approach relies on predominantly paper-based, pretrial fact-finding, followed in rare cases by a live trial process. Unfortunately, this system uses paper-based procedures at a point when live hearings may often be cheaper and more reliable, then shifts to live examination when its benefits will have evaporated and its costs are likely to be prohibitive. A preferable system would allow for more live hearings early in a case. Even when there is no direct credibility conflict, live proof at this stage may increase the legitimacy of rulings, may lower litigation costs, and will often be more reliable than the paper-based alternative of affidavit evidence. By contrast, rulemakers should be more willing to authorize—and judges should be more willing to use—paper trials at the final fact-finding stage of a dispute. At this late stage, live procedure is expensive and unreliable, and as a result litigants use it so rarely that it provides them with few opportunities for self-expression. In short, we should reverse our present approach to civil case fact-finding by holding more live pretrial hearings and more paper trials

The Perils of Productivity

This Essay urges that those who seek to minimize delay in litigation should proceed with greater caution. Productivity reform proponents usually assume that an increase in case processing speed can be purchased at little cost to other procedural values, but this may not be the case. Such reforms may lower the quality of lawyers’ case preparation and worsen the quality of judicial decisions. The extent of these effects is unclear because the proponents of such changes have not made an effort to establish that increases in speed can be achieved without undermining the accuracy of litigation outcomes. Relatedly, it is common to assume that reductions in time to disposition usually result in increased litigant satisfaction and decreased litigation costs. These assumptions, however, are doubtful in theory and contrary to the existing empirical evidence. As a result, we should be quite cautious before assuming that a reform that speeds case processing is an improvement to the litigation process

Ordering Proof: Beyond Adversarial and Inquisitorial Trial Structures

In typical trials, judges and juries will find it easier to remember the proof that occurs early in the process over than what comes later. Moreover, once a fact-finder starts to form a working hypothesis to explain the facts of the case, they will be biased towards interpreting new facts in a way that confirms that theory. These two psychological mechanisms will often combine to create a strong “primacy effect,” in which the party who goes first gains a subtle, but significant, advantage over the opposing party. In this article, I propose a new method of ordering proof, designed to minimize the inaccuracy or unfairness that arises due to primacy effects. A neutral third person, rather than the disputing parties, would prepare an opening “statement of the dispute,” which would take the place of partisan opening statements. In lieu of separate, partisan cases-in-chief, this neutral third party would also decide the order of testifying witnesses, balancing considerations of clarity, efficiency, and neutrality between the parties. This proposed ordering would, however, be subject to variations by agreement among the parties. In lieu of a jury trial, the presiding judge could perform these new functions, while a magistrate judge or an appointed master could do so in nonjury trials. After exploring the reasons why this new mode of ordering proof would likely improve the fairness and accuracy of our system without excessive cost or inconvenience, I propose a policy experiment to test the proposed method in a random selection of jurisdictions, so that its impacts on outcomes, costs, and litigant satisfaction can be measured

Signal vs. Noise: Some Comments on Professor Stein\u27s Theory of Evidential Efficiency

In this Essay, I examine Professor Stein\u27s intriguing new theory of evidential efficiency, which posits that judges should admit evidence whenever it has a sufficiently high signal-to-noise ratio. I explore a slightly different definition of the concepts of signal and noise than Stein, based upon likelihood ratio values rather than the underlying probabilities of events, and I explain why these altered concepts may be analytically superior. Additionally, I call into question the strength of the connection between the signal-to-noise ratio of a piece of evidence and the costs of admitting it at trial. Nevertheless, Stein\u27s project is worthy of great praise because it focuses our attention on the fact that evidentiary rules have many costs beyond their direct contributions to outcome accuracy. Failing to consider these costs does great harm to individual litigants, the justice system, and society at large

The Perils of Productivity

This Essay urges that those who seek to minimize delay in litigation should proceed with greater caution. Productivity reform proponents usually assume that an increase in case processing speed can be purchased at little cost to other procedural values, but this may not be the case. Such reforms may lower the quality of lawyers’ case preparation and worsen the quality of judicial decisions. The extent of these effects is unclear because the proponents of such changes have not made an effort to establish that increases in speed can be achieved without undermining the accuracy of litigation outcomes. Relatedly, it is common to assume that reductions in time to disposition usually result in increased litigant satisfaction and decreased litigation costs. These assumptions, however, are doubtful in theory and contrary to the existing empirical evidence. As a result, we should be quite cautious before assuming that a reform that speeds case processing is an improvement to the litigation process