Reducing the Hindsight Bias Utilizing Attorney Closing Arguments

In the legal system, jurors are asked to render a decision after the event in question has already occurred and the final outcome, typically negative, is known. This after-the-fact structure of the legal system makes jurors susceptible to a human judgment phenomenon known as hindsight bias. This study focused on reducing hindsight bias in a courtroom context by incorporating a debiasing strategy within the defense's closing argument. Subjects viewed one of three videotaped versions of plaintiff and defense closing arguments in a commercial litigation case (i.e., foresight condition, hindsight condition, and hindsight debiasing condition). Results indicate that the hindsight debiasing strategy was effective in reducing subject-juror hindsight bias.     

An Integration of Hindsight Bias and Counterfactual Thinking: Decision-Making and Drug Courier Profiles

Counterfactual thinking and hindsight bias have each generated separate, substantial bodies of research and provided insight into some areas of legal decision-making. An investigation of the relationship between Counterfactual thinking and hindsight bias in a situation in which both are implicated is presented in a legal decision-making context utilizing drug courier profiles and illegal search and seizure. The findings, which demonstrate each of these cognitive processes and show a pattern of results that supports an integrative relationship between them, are discussed in the contexts of social cognition and of legal decision-making. A suggested causal model of decision-making in this context is also presented. Specific implications of these findings for civil actions to remedy illegal searches are discussed.     

Conduct and its Consequences: Attempts at Debiasing Jury Judgments

Jurors in negligence cases are supposed to judge a defendant by the reasonableness of his or her conduct and not by the consequences of that conduct. But several studies have shown that a cognitive heuristic known as hindsight bias can skew post hoc judgments of some prior behavior. Thus, jurors who must evaluate the actions of a defendant may be influenced inappropriately by the consequences of those actions. A complementary problem arises when jurors must evaluate the injuries incurred by the plaintiff. Here, jurors' knowledge about the defendant's allegedly negligent conduct can proactively influence their assessment of the plaintiff's injuries and determination of damages. The purpose of the present study was to examine the effectiveness of two procedural techniques intended to reduce or eliminate the impact of hindsight bias in negligence cases—multiple admonitions from a judge about the proper use of evidence—and bifurcation (actually withholding irrelevant evidence from jurors). We presented a re-enacted automobile negligence trial to 355 jury-eligible adults drawn from the community, varied the evidence and instructions that they heard, and measured liability judgments and damage awards from individual jurors both before and after deliberating, and from juries. Results showed that admonitions were generally ineffective in guiding jurors to the proper use of evidence but that bifurcation was relatively more effective. Deliberations had no curative effect on jurors' misapplication of evidence.     

Determinations of negligence and the hindsight bias

Examined the hindsight bias in determinations of negligence inTarasoff-type cases. The sample of 297 community residents was asked to read clinical case scenarios involving treatment of potentially dangerous patients. Scenarios varied by outcome: (1) the patient became violent, (2) the patient did not become violent, and (3) no outcome was specified. Respondents rated the foreseeability of violence, the reasonableness of therapist actions, and negligence. It was hypothesized that respondents who were informed that the patient became violent would be more likely to find the therapist negligent than respondents in the other two outcome conditions. Findings supported this, and respondents in the violent outcome condition rated the violence as more foreseeable and therapist actions as less reasonable. Implications for mental health and legal professionals are discussed and future research ideas are suggested.     

Juror Judgments in Civil Cases: Hindsight Effects on Judgments of Liability for Punitive Damages

An experiment was conducted to investigate whether hindsight bias influences an important class of legal decisions—civil jurors' judgments of liability for punitive damages. Jury-eligible citizens were shown a videotaped summary of the circumstances surrounding an environmental damage lawsuit. Some subjects were presented a foresight perspective and asked to judge whether or not a railroad should comply with an order to stop operations on a section of track that had been declared hazardous. Other subjects were asked to judge whether the railroad was liable for punitive damages after an accident occurred. Three independent variables were manipulated: temporal perspective with one third of the subjects assessing risks in foresight and two thirds assessing risks in hindsight; subject role with one half of the subjects asked to assume the role of a juror rendering a verdict and one half the role of a citizen whose personal opinion was solicited; and, in the hindsight conditions only, the amount of damage ($240,000 vs. $24,000,000) caused by the accident. Almost all measures of participants' judgments and thoughts about the case showed dramatic foresight–hindsight differences. The participants' role had an effect on some measures; for example, participants in the juror role exhibited slightly smaller hindsight effects when judging liability than did those in the citizen role. The magnitude of the damage caused by the accident had no effects on any measures.     

A victim-centered approach to justice? Victim satisfaction effects on third-party punishments

Three studies investigated whether victims' satisfaction with a restorative justice process influenced third-party assignments of punishment. Participants evaluated criminal offenses and victims' reactions to an initial restorative justice conference, and were later asked to indicate their support for additional punishment of the offender. Across the three studies, we found that victim satisfaction (relative to dissatisfaction) attenuates people's desire to seek offender punishment, regardless of offense severity (Study 2) or conflicting reports from a third-party observer (Study 3). This relationship was explained by the informational value of victim satisfaction: Participants inferred that victims felt closure and that offenders experienced value reform, both of which elevated participants' satisfaction with the restorative justice outcome. The informational value communicated by victim satisfaction, and its criminal justice implications, are discussed. (PsycINFO Database Record (c) 2012 APA, all rights reserved).     

刑事错案形成的心理原因

刑事错案的成因包括直接原因、环境原因和心理原因,其中心理原因(主要表现为包括"遂道视野"、"证实偏差"等在内的各种心理偏差)对错案的形成有更根本的影响。绝大多数直接原因,如刑讯逼供、隐瞒有利于犯罪嫌疑人、被告人的证据、忽视辩护律师的合理意见等等,都是各种心理偏差的外在表现。而绝大多数环境原因,如不合理的考核方式、司法经费不足等等,之所以会导致错案,主要是因为它们强化了这些心理偏差。根据这些心理偏差对错案形成的可能影响,可以在心理学层面总结出刑事错案的形成过程及规律,而我国近年来纠正的22起刑事错案可以为此提供验证。我国有必要完善当前的刑事司法体制,以减少这些心理偏差对办案人员的影响,进而更有效地防止错案的发生。     

Searching for Equilibrium: The Tenuous Nature of the Outcome Test

Based on Engel's critique of the outcome test and Persico and Todd's response, the underlying assumptions critical to the outcome test are summarized and discussed. It is argued that many of these assumptions are not met when applied to police search data. The key underlying assumption—the principle of equilibrium—is examined in detail, and several additional concerns are raised. Thereafter, the proper interpretations of outcome test analyses are reiterated, and discussion regarding the types of racial bias demonstrated by these analyses is further explored.     

Unfinished business: how litigation relates to health care regulation

"Regulation by litigation" is a recently recognized trend in American legal governance that develops differently in each economic sector it affects. In health care, widespread litigation can be viewed as the product of three partial transformations: incomplete industrialization, incomplete consumerism, and incomplete social solidarity. One can argue that the public turns to the courts because other actors who might exercise judgment and authority to resolve problems appear unreliable. Because litigation has several features at odds with sound health policy--including its cost, its hindsight bias, and its adversarial character--it may be necessary to develop new discretionary institutions to address specific questions that regulators cannot or will not answer.     

Ex post ≠ ex ante

Participants in three conditions (foresight, hindsight, and a modified hindsight condition designed to ameliorate the hindsight effect) assessed whether a municipality should take, or have taken, precautions to protect a riparian property owner from flood damage. In the foresight condition, participants reviewed evidence in the context of an administrative hearing. Hindsight participants reviewed parallel materials in the context of a trial. Three quarters of the participants in foresight concluded that a flood was too unlikely to justify further precautions-a decision that a majority of the participants in hindsight found to be negligent. Participants in hindsight also gave higher estimates for the probability of the disaster occurring. The debiasing procedure failed to produce any significant differences from the regular hindsight condition. The results suggest that absent an effective debiasing technique, risk assessments made in foresight will be judged harshly in hindsight.     

How do Judges think about risk?

A sample of almost 100 judges exhibited well-known patternsof biases in risk beliefs and reasonable implicit values oflife. These biases and personal preferences largely do not affectattitudes toward judicial risk decisions, though there are someexceptions, such as ambiguity aversion, misinterpretation ofnegligence rules, and retrospective risk assessments in accidentcases, which is a form of hindsight bias. Although judges avoidedmany pitfalls exhibited by jurors and the population at large,they nevertheless exhibited systematic errors, particularlyfor small probability-large loss events. These findings highlightedthe importance of judicial review and the input of expert riskanalysts to assist judicial decisions in complex risk cases.     

Uncertainty and regulatory outcome in the Swedish electricity distribution sector

Regulatory agencies are potentially influenced by market characteristics and underlying incentives and use simplifying decision rules. When decision uncertainty increases, it is hypothesised that these influences become more apparent. This study investigates civil cases initiated by dissatisfied customers in the Swedish electricity distribution market. The purpose is to determine (1) how regulatory decision uncertainty manifests itself and (2) whether multi-echelon regulatory structure has a structural impact on regulatory outcome. The results indicate that the regulator’s decisions exhibit status quo bias and that large customers are privileged compared to small customers. The court distinguishes itself by favouring large utilities.     

Accountability or Expectations Management? The Role of the Ombudsman in Financial Regulation

Current research of third-party complaint handling institutions evaluates their success in providing redress and advancing service improvement. This focus is driven by a normative predisposition. In contrast, this study is based on an inductive, ethnographic research of the UK Financial Ombudsman Service. This inductive analysis is employed to develop hypotheses to guide future research on third-party complaint handling. It is suggested that current literature may have overlooked the role of third-party complaint handling schemes in managing what, from a professional point of view, are citizen-consumers' excessive expectations for redress. The normative implications of this tentative empirical claim are further discussed.     

Testing for Potential Contextual Bias Effects During the Verification Stage of the ACE‐V Methodology when Conducting Fingerprint Comparisons*

Abstract: This study was conducted to assess if fingerprint specialists could be influenced by extraneous contextual information during a verification process. Participants were separated into three groups: a control group (no contextual information was given), a low bias group (minimal contextual information was given in the form of a report prompting conclusions), and a high bias group (an internationally recognized fingerprint expert provided conclusions and case information to deceive this group into believing that it was his case and conclusions). A similar experiment was later conducted with laypersons. The results showed that fingerprint experts were influenced by contextual information during fingerprint comparisons, but not towards making errors. Instead, fingerprint experts under the biasing conditions provided significantly fewer definitive and erroneous conclusions than the control group. In contrast, the novice participants were more influenced by the bias conditions and did tend to make incorrect judgments, especially when prompted towards an incorrect response by the bias prompt.     

合规计划有效性评估的制度构成

刑事合规的核心是能够有效实施的合规计划。合规计划有效性评估的制度构成应涉及评估主体、评估对象与评估讨论等几方面。评估主体应具备专业背景和承担法律责任的能力,因此目前第三方组织作为评估主体的思路有其合理之处,但是在构成方式、人员性质等方面仍值得商榷。合规计划有效性的评估对象应包括合规计划本身及其实施情况。在评估涉案企业的具体合规计划时,应根据合规计划是制定、实施于犯罪之前还是之后,对评估标准略作区分,并遵循坚持动态评估、强调内部评估、尊重常识判断与关注个案报告的原则。评估结论目前是检察机关在起诉阶段作出是否起诉等决定的重要参考。如果未来全面建立起企业合规制度,评估结论还应是审判机关定罪量刑的重要情节,建议司法机关将其明确为鉴定意见。     

Reimbursement offsets for medical care or services. Final rule

This document amends the regulations of the Department of Veterans Affairs (VA) concerning the reimbursement of medical care and services delivered to veterans for nonservice-connected conditions. This rule applies in situations where third-party payers are required to reimburse VA for costs related to care provided by VA to a veteran covered under the third-party payer's plan. This final rule adds a new section barring offsets by third-party payers and requires that third-party payers submit a request for a refund for claims when there is an alleged overpayment.     

Implicit Ingroup Favoritism,Outgroup Favoritism,and Their Behavioral Manifestations

Three broad themes that emerge from the social psychological research on unconscious or implicit prejudice and stereotypes are highlighted in this article. First, individuals who belong to socially advantaged groups typically exhibit more implicit preference for their ingroups and bias against outgroups than do members of socially disadvantaged groups. This research suggests that intergroup preferences and prejudices are influenced by two different psychological forces—people's tendency to prefer groups associated with themselves as a confirmation of their high self-exteem versus their tendency to prefer groups valued by the mainstream culture as a confirmation of the sociopolitical order in society. Second, these inplicit prejudices and stereotypes often influence people's judgements, decisions, and behaviors in subtle but pernicious ways. However, the path from implicit bias to discriminatory action is not inevitable. People's awareness of potential bias, their motivation and opportunity to control it, and sometimes their consciously held beliefs can determine whether biases in the mind will manifest in action. Finally, a new line of research suggests that implicit biases exhibited by individuals who belong to socially disadvantaged groups towards their own group may have unintended behavioral consequences that are harmful to their ingroup and themselves.     

Reasonable expectation of privacy and third-party consent searches

Reasonable expectation of privacy is discussed in the context of searches conducted without the warrants usually required by the Fourth Amendment but with the consent of a third party, who is not the target of the search. Case law on this issue is neither consistent nor clear-cut. Psychological theory and research clarify this issue by establishing closer correspondence between legal concepts and assumptions and individuals' actual behaviors and social expectations. The key legal components of reasonable expectation of privacy are delineated, with regard to third-party consent: “common authority” areas versus “exclusive use” areas and theassumption of risk doctrine. Next, the psychological theory and research on interpersonal relations and human territorial functioning are reviewed as they relate to the legal components of privacy regulation. Taken together, the legal criticisms of this warrant exception category, and possible discrepancies between the legal assumptions concerning interpersonal and territorial functioning among co-residents and the actual behaviors and expectations suggested by psychological theory and research, raise questions about its validity.     

再审吸收第三人撤销之诉的程序规则研究--以《民诉法解释》第301、302条为中心

我国立法及司法解释为再审和第三人撤销之诉的启动设定了不同的要件,使得两类诉讼程序所涉及的基本要件事实存在着较大差异。即便再审程序和第三人撤销之诉就同一裁判文书或调解书作出不同的处理,也不能将之定性为矛盾裁判。因为对矛盾裁判的认定须同时结合裁判主文以及裁判理由进行,而要件事实的判断是裁判理由的重要组成部分。因此,唯有当存在作出矛盾裁判的风险时,才有必要将第三人的诉讼请求并入再审程序,其余情况下法院可分开审理。而程序合并后法院对当事人及第三人已实施诉讼行为的处理,应当符合程序保障的要求。     

Missing a critical piece of the pie: simple document search strategies inadequate for systematic reviews

A review based on a biased collection of studies is likely to produce biased conclusions. As such, a central component of a quality systematic review is a comprehensive document search. Three issues are explored in this paper that underpin the importance of such a search. First, the evidence of publication selection bias clearly establishes that peer-reviewed journal articles are more likely to show statistically significant results than less formally published studies. Second, the presence of grey literature studies that cannot be discovered through a search of bibliographic databases is demonstrated using Campbell Collaboration systematic reviews, and third, the logical and empirical problems with using publication status as a proxy for methodological quality are examined. More robust methods of identifying research conducted in the social sciences are needed if we are to take seriously the accumulation of knowledge, such as the development of a priori registries of research studies.