We recently published an article about the confirmation bias here. However, now we want to go into detail and find out how the confirmation bias affects the legal profession. Understanding the confirmation bias is of utmost importance because it is one of the most dangerous biases in the judicial context.

Hogan Lovells decribes it as follows: “Although the phenomenon of confirmation bias would appear to be contrary to the notion that the legal profession requires, the application of an objective mind, the manner in which litigation – civil and criminal – is both conducted and adjudicated is closely aligned to a remarkable degree with this phenomenon.”

The implications of this bias for the judicial system are various and appear every day. Trials can be long and complex, having members of the jury often form their decisions early and interpret following evidence in a way that supports their conclusions, thus it is reasonable to expect an attitude polarization effect. It is striking that inquisitorial and adversarial criminal justice systems are both affected by confirmation bias. In criminal investigations, preferring information that supports the investigator’s beliefs could lead investigators to disregard evidence that challenges their perceptions of and hypotheses about a case.

One example is the Central park jogger case from 1989. Five teenagers confessed to raping and assaulting a woman as she jogged through Central Park. However, they said that police had coerced their confessions. There was neither physical evidence nor eyewitnesses linking the teenagers to the attack. Although they retracted their confessions, a jury found all five of them guilty. Prior to that Detectives and prosecutors misinterpreted the evidence that undermining their theory. This mistake took the legal sector almost 13 years to be solved. In 2002, another man was convicted. His DNA matched the semen discovered during the trial.

Another example is the 2013 murder trial of David Camm. His attorney argued that he was convicted of killing his wife and two children solely because of confirmation bias. Despite the discovery that almost every piece of evidence on the probable cause was inaccurate or unreliable, the charges were not dropped against him. A sweatshirt was found at the crime scene and was discovered to contain the DNA of a convicted felon, his prison nickname, and his department of corrections number. However, the investigators still looked for Camm’s DNA on the sweatshirt. Eventually, a second suspect was discovered and prosecutors charged them as co-conspirators even though they did not find any evidence linking the two men. Camm was acquitted of the murders.

Summing up, it is obvious that the legal profession exploits the confirmation bias to some extent. It is the lawyer’s job to persuade and to convince judges and juries. He therefore present evidence in a way that supports our client’s story. However, it is ultimately helpful to be aware of confirmation bias and assess every situation objectively. Lawyers must advise their clients on all of the negatives and positives of their case. This requires attorneys to have an objective approach while looking at all the evidence without forgetting about confirmation bias.

Overcoming the Bias

One thing may be very useful: Always think of the opposite. This way we can find out if we are wrong or right. Challenge yourself! Start by trying to assess the same evidence differently. Most importantly ask yourself: If I wanted to prove my theory/statement wrong, how could I do this? To our clients and our profession, it is very useful to be an objective lawyer.

(Picture with courtesy of pixabay)

FLORIAN ZINK