Burke, Alafair

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Case Western Reserve University School of Law

Case Western Reserve Law ReviewVolume 57 | Issue 32007Commentary: Brady's Brainteaser: The AccidentalProsecutor and Cognitive BiasAlafair BurkeFollow this and additional works at: https://scholarlycommons.law.case.edu/caselrevPart of the Law CommonsThis Symposium is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law ScholarlyCommons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve UniversitySchool of Law Scholarly Commons.Recommended CitationAlafair Burke, Commentary: Brady's Brainteaser: The Accidental Prosecutor and Cognitive Bias, 57 Case W. Res. L. Rev. 575 (2007)Available at: https://scholarlycommons.law.case.edu/caselrev/vol57/iss3/10COMMENTARY: BRADY'SBRAINTEASER: THE ACCIDENTALPROSECUTOR AND COGNITIVE BIASAlafair BurketINTRODUCTIONIn his Article, Litigating Brady v. Maryland: Games ProsecutorsPlay,1 Professor Gershman rightly argues that it is bad for prosecutorsto play Hide and Seek or Blind Man's Bluff with Brady material. It isbad to treat one's constitutional obligation to disclose exculpatoryevidence as a gamble or a scavenger hunt. It is bad for prosecutors toplay all of these games. Rather than disagree with ProfessorGershman, I'd like to flesh out a point about a prosecutor's disclosurethat I think, unfortunately, could get lost if we place too muchemphasis on the comparison to games-in particular, if we take tooliterally the post-colon portion of this panel's title: "GamesProsecutors Play to Avoid Compliance."To say that prosecutors play games to avoid compliance withBrady is to suggest that Brady itself is perfectly sound doctrine andthat defendants would be in a fine position to have a fair shot in theadversarial system, just so long as those wily prosecutors would setaside their evil games, play fair, and comply with Brady. The story ismore complicated, as Professor Gershman acknowledges in his piece,because the Brady doctrine itself invites many of the prosecutorialtactics that can be depicted as unfair gamesmanship.t Professor, Hofstra Law School. My thanks to Case Western Reserve Law School forinviting me to participate in this symposium and to Professor Bennett Gershman for theopportunity to comment on his Article.1 Bennett L. Gershran, Litigating Brady v. Maryland: Games Prosecutors Play, 57 CASEWES. L. REv. 531 (2007).CASE WESTERN RESERVE LAW REVIEWWithout disagreeing with any of Professor Gershman'sobservations about purposeful, knowing, or ostrich-like prosecutorialfailures to disclose evidence that qualifies as Brady material, I willtalk about a problem that others have mentioned today but have notexplored: how virtuous prosecutors-acting in good faith and tryingto comply with Brady-might still fail to turn over exculpatoryevidence. To continue the analogy of games, what I am exploring isnot a game that prosecutors consciously play to avoid Brady, butinstead a brainteaser that Brady itself forces prosecutors to engage in.BRADY'S BRAINTEASERAs we know, the prosecutor's constitutional obligation to discloseexculpatory evidence, as defined by the Supreme Court, is limited bythe materiality requirement. So when a previously paraphrased localprosecutor says, "it is not misconduct if I don't get reversed," he takesa defensible view, at least as far as Brady is concerned. Bradyrequires prosecutors to disclose if, and only if, the evidence at issue,viewed in light of the entirety of the case, is sufficient to undermineconfidence in the proceeding's outcome.2 In other words, Bradyrequires a prosecutor who is deciding whether to disclose evidence, exante, to apply the same standard an appellate court would use ex postto decide whether to reverse a conviction if the prosecutor has notdisclosed.By requiring a comparison of the potentially exculpatory evidenceagainst the rest of the evidence in the case-remember, the case thathasn't been tried yet-Brady creates a brainteaser for the prosecutorwho is trying to give literal compliance with Brady. The prosecutormust first envision the trial: "What do I think the evidence is going tolook like once the case plays out?" And in step two of the brainteaser, the prosecutor is asked to hold up this piece of evidence atissue against everything else and say, "Do I think this piece ofevidence is sufficient to undermine my confidence in a guilty verdict Ihaven't yet achieved based on the rest of the evidence?"Now, we have all been stumped by brainteasers before. That isbecause all good brainteasers prey upon common fallacies in humancognition. I would like to focus on how the Brady standard preysupon cognitive biases that everyone, not just prosecutors, shares. Myargument is that these cognitive biases introduce non-random errorsinto the system. It is not simply that prosecutors sometimesundervalue materiality, and sometimes overvalue it. Rather, Brady2 Kyles v. Whitley, 514 U.S. 419, 435 (1995); see also United States v. Bagley, 473 U.S.667 (1985); United States v. Agurs, 427 U.S. 97 (1976).[Vol. 57:32007] THE ACCIDENTAL PROSECUTOR AND COGNITIVE BIAS 577invites prosecutors to systematically undervalue the materiality ofevidence.COGNITIVE BIASESThe first cognitive bias I want to talk about is confirmation bias.We have all heard that good scientists are supposed to seek outinformation that would disprove their own theory. The best way toprove your theory is to first attempt to disprove it; the failure todisprove a theory is proof that it may be correct.Social science evidence indicates that instead, when humans try totest a theory, we look only for evidence that confirms that theory. Forexample, in one frequently cited study,3 researchers told half of theirsubjects to write out questions that they would ask a person todetermine if that person was an extrovert, and told the other half ofthe subjects to write down questions to determine whether a personwas an introvert. The subjects demonstrated classic confirmation bias.Those who were trying to test for extroversion would ask questionssuch as, "What do you do to liven up things at a party?" Those whowere looking for evidence of introversion would ask questions like,"What is it about large groups that makes you feel uncomfortable?"These questions elicit answers that only support the subjects'operating theories, not disprove them if wrong. A suspected introvert,for example, would be encouraged to discuss what makes himuncomfortable at a party, without being asked whether parties, as awhole, in fact make him uncomfortable.There is also evidence of confirmation bias in recall. When peopleare trying to test a theory by searching their own knowledge, theyretrieve information from memory in a biased manner. For example,in another well-known study,4 all subjects were shown a list ofattributes for a hypothetical woman named Jane. Some of theseattributes suggested that Jane was an extrovert, some suggested shewas an introvert, and some were neutral. Some days later, eachsubject was asked a question about Jane. Half of the subjects wereasked, "Do you think Jane would be a good real estate agent?" Thesesubjects tended to recall things about Jane that were consistent withextroversion, such as the fact that Jane struck up a conversation with astranger. The other half of the subjects, who had been shown the sameexact list of attributes about the hypothetical woman, were askedMark Snyder & William B. Swann, Jr., Hypothesis-Testing Processes in SocialInteraction, 36 J. PERSONALITY & SOC. PSYCHOL. 1202 (1978).4 Mark Snyder & Nancy Cantor, Testing Hypotheses About Other People: The Use ofHistorical Knowledge, 15 J. EXPERIMENTAL SOC. PSYCHOL. 330 (1979).CASE WESTERN RESERVE LA WREVIEWwhether Jane would make a good librarian. These subjects recalledseemingly introverted facts, such as Jane's preference to take hercoffee break by herself. In sum, people recall information frommemory in a manner that is biased toward supporting their currenthypothesis.Another cognitive bias is selective information processing. Thisterm is used to describe people's tendency to evaluate evidence basedon their existing beliefs. If we don't recognize this in ourselves, weall at least recognize it in others with whom we've disagreed. We'veall argued with someone who refuses to budge from his or herposition. If you point out some objective piece of evidence thatcontradicts their theory, they undermine it. They may say, "That mustbe made up," or, "That sounds like junk statistics to me," or, "Thatcan't be right." This kind of maddening reasoning is an example ofselective information processing.Here is another example from the social science literature.5Subjects were given contradictory empirical studies about the deathpenalty, one purporting to show that capital punishment was adeterrent against crime, one purporting to show it was no deterrent atall. Those subjects who walked into the room favoring capitalpunishment thought the study showing it was a deterrent was well-conducted, but criticized the format of the study purporting to showno deterrence. Meanwhile, those subjects who walked into the roomopposed to the death penalty found numerous problems with the pro-capital punishment study, as opposed to the study finding no deterrenteffect. As a result of selective information processing, the subjectsbecame more convinced of their own pre-existing views, even thoughthey had all been exposed to the same contradictory information.THE INFLUENCE OF COGNITIVE BIASES ON BRADY'S BRAINTEASERLet us assume for a second that prosecutors are human. The lasttime I checked, all the ones I knew were carbon-based. If we knowthat people generally suffer from cognitive biases like selectiveinformation processing, it is only natural to assume that prosecutorsfall prey to these same cognitive fallacies.Look at how Brady's brain teaser invites even virtuous prosecutorsto systematically undervalue materiality. Take a simple example.Suppose a prosecutor has a robbery case and learns that a criticaleyewitness is a chronic alcoholic. The prosecutor doesn't actually5 Charles G. Lord, Lee Ross & Mark R. Lepper, Biased Assimilation and AttitudePolarization: The Effects of Prior Theories on Subsequently Considered Evidence, 37 J.PERSONALITY & SOC. PSYCHOL. 2098 (1979).[Vol. 57:32007] THE ACCIDENTAL PROSECUTOR AND COGNITIVE BIAS 579know whether the eyewitness was drunk on the night of the robbery;she could very well have been sober. For purposes of ourhypothetical, we have to assume that the prosecutor continues tobelieve the witness provided an accurate account because we are,after all, supposing a virtuous prosecutor. If the information weresuch that the prosecutor herself no longer believed the defendant wasguilty, our virtuous prosecutor would dismiss the case.Thus, it is just a question of whether the prosecutor has to tell thedefense attorney that her witness is a chronic alcoholic. To applyBrady, the prosecutor first has to envision the trial without thedisclosure of the witness's alcoholism. Because of confirmation bias,as she retrieves the evidence in the case from memory, she is likely torecall facts that support her existing belief in guilt, such as theexistence of another eyewitness, the defendant's inculpatoryadmissions, or the fact that the defendant was found in possession ofsome of the robbery proceeds in a search incident to arrest. Inaddition, selective information processing comes into play. Whileevaluating all of the evidence that suggests the defendant is guilty, theprosecutor will say to herself, "It sounds like very good evidence ofguilt. I still believe he is guilty."In her analysis, the prosecutor is not likely to emphasize facts thatmight undermine her existing belief in the defendant's guilt. Perhapsthe defendant's inculpatory admissions were accompanied byexculpatory denials. Maybe his statements were made under policepressure. Perhaps some of robbery proceeds are missing, with noexplanation for their whereabouts. Maybe the other eyewitness alsosuffers from memory or credibility problems. Because ofconfirmation bias, the prosecutor may not even consider these factswhen she envisions her case. She may recall only the evidence thatsuggests the defendant's guilt. Even if she does consider theseexculpatory facts, she may give them short shrift because of selectiveinformation processing. In short, she is going to overestimate thestrength of her own case.The second step of Brady requires her to evaluate the exculpatoryvalue of the evidence at issue in the context of the entirety of the case.But because of the cognitive biases at play in the first step, she has aninflated estimate of the strength of her own case. And because ofselective information processing, she is going to scrutinize thepotentially exculpatory evidence for flaws. So what if her witness is achronic alcoholic? It doesn't mean the witness was drunk on the nightof the robbery. Even so drunks can still make accurate IDs. Becausethe prosecutor underestimates the exculpatory value of the evidence atCASE WESTERN RESERVE LAW REVIEWissue, and overestimates the inculpatory value of everything else, shemay conclude that the witness's alcoholism does not make adifference. Accordingly, she may decide not to disclose theinformation. This is not because she is trying to avoid Brady byplaying games, but because she is trying to solve the brain teasercreated by the Brady doctrine itself. At each step of the analysis,Brady invites cognitive biases that will systematically causeprosecutors to undervalue materiality.I choose to emphasize this particular game-Brady's game, ratherthan prosecutors' games-for a couple of reasons. First, I think itshapes the direction of reform. Some in this Symposium havesuggested that prosecutors should be disciplined more, disbarredmore, or even prosecuted criminally for Brady violations. However,upping the sanctions for purposeful violations is unlikely to alter thedecision making of prosecutors who unwittingly and accidentally failto disclose exculpatory information.Secondly, it is important as a narrative matter to explore how evenvirtuous prosecutors might fail to disclose exculpatory evidence. Ifwe discuss only glaring, purposeful violations, or even ostrich-likewillful blindness, ethical prosecutors can quickly disregard theconduct of a few unethical lawyers without appreciating how theycould still fall prey to Brady's traps themselves.Many prosecutors believe and say to themselves, "I don't need toworry about these things. I don't violate Brady. I would never do that.I am out to do justice," without considering the possibility that theymight unwittingly err while trying to do the right thing. Explainingprosecutorial decision making through the lens of cognitive bias is away to include prosecutors in a discussion of these problems andperhaps even in the solutions.[Vol. 57:3

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Commentary: \u3ci\u3eBrady\u3c/i\u3e\u27s Brainteaser: The Accidental Prosecutor and Cognitive Bias

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