5.1 Empirical evidence

Arguments have raged between formalists and realists about how much freedom judges have, but empirical evidence suggests that the realists were at least partially right. Psychologists have recognised a phenomenon called ‘motivated reasoning’ which is where decision makers are influenced to choose the outcome they prefer (Kunda, 1990). For example, Balcetis and Dunning (2006) asked participants to decide whether an ambiguous character (I3) was a number 13 or a letter B. Depending on which they chose, their task was to drink some orange juice, or a ‘vile’ health drink. Perhaps unsurprisingly, participants preferred whichever interpretation let them avoid the vile drink. The table below shows the outcome of this study.

Experiments in a legal context have found that lawyers are also influenced by their outlook. For example, Redding and Reppucci (1999) found that US judges and law students’ decisions on whether to admit empirical research about the death penalty as evidence in a trial were influenced by whether or not they supported or objected to the death penalty. At the appellate level, there is also considerable evidence that appellate judges’ decisions are influenced by their attitudes.

While we know that motivated reasoning happens in a legal context, researchers do not have a clear picture of when it occurs. One aspect that seems to make a difference is whether the bias can be hidden (Kunda, 1990). Note that in the exercises earlier in this unit, some of the fact-finding and decision making were ‘easy’ where almost all judges would have come to the same conclusion. If a judge had come to a different conclusion, it might have looked a bit suspicious. Other cases were ‘hard’ where reasonable judges might have decided either way. These are the cases where the effect of bias is more difficult to spot. Overall, the potential for bias provides an argument in favour of a judiciary that reflects the community.