An investigation of top-down vs. bottom-up processing in post-appellate review of a criminal case.

• Author: Smith, Andrew M.

ABSTRACT

Convicted persons who claim to be factually innocent frequently seek assistance from advocacy organizations that help investigate and establish actual innocence. This experiment examined the extent to which the knowledge that a case has passed pre-screening by an innocence project influences case reviewer judgment through top-down case processing. One hundred and fifty-nine participants role-played case reviewers, evaluated discovery for a criminal case, and evaluated the case. Prior to evaluation, half of the participants were instructed that the case was not previously adjudicated, whereas the other haft was told that the case was referred by an innocence advocacy organization. Instructions significantly influenced participant evaluations, suggesting the influence of top-down processing of case discovery.

1. AN INVESTIGATION OF TOP-DOWN VS. BOTTOM-UP PROCESSING IN POST-APPELLATE REVIEW OF A CRIMINAL CASE

   The list of DNA-based exonerations in both Canada and the United States has continued to rise. To date, 273 individuals convicted of serious felonies (almost all rapes and murders) have been exonerated by DNA-based evidence. (1) Technological developments in DNA analysis were critical in confirming that erroneous convictions do occur in the criminal justice system. (2) DNA evidence, however, is not available in all criminal cases. Unfortunately, perpetrators do not always leave such evidence behind. Likewise, it is also unfortunate that not all wrongly convicted individuals have this form of exculpatory evidence available to assist in their defense. As one might imagine, the absence of DNA-based evidence exacerbates the uphill battle a wrongly convicted individual must go through in seeking to establish innocence. Despite these difficulties, increasing numbers of individuals with no DNA evidence have been exonerated in the last two decades by other types of evidence. Indeed, among the known exonerations, non-DNA exonerations now significantly outnumber the DNA exonerations. (3) A significant proportion--although not all--of these DNA and non-DNA exonerations have been achieved with the assistance of innocence advocacy groups, such as the Innocence Project.

   In recent decades, psychology-law researchers have made great strides in gaining a firmer understanding of both the causes and the consequences of wrongful convictions. Eyewitness identifications, (4) false confessions, (5) and jailhouse informant testimony (6) are but a few causes of wrongful convictions that have been subject to research. Researchers have also focused on identifying and exploring the consequences of wrongful convictions. Two examples of such consequences include the psychological consequences of wrongful convictions--both personal and familial (7)--and the crimes continuing to be committed by the true perpetrators. (8) One area of psychology-law research that remains unexplored is the post-appellate review process. There has been no research investigating factors affecting the post-appellate review process. Accordingly, we examine one such factor in the present study.

   The post-appellate review, or exoneration, process refers to the process a convicted individual must go through in striving to establish innocence. Applicants must go through a number of antecedent processes before being eligible for the post-appellate review process. First, the applicant must be convicted. Second, the applicant must subsequently exhaust all of his or her appeals. At this time, the applicant may or may not have applied for "ministerial review on the grounds of miscarriage of justice," (9) or for a writ of habeas corpus (or other analogous state law-based post-conviction review procedure) in the United States. This process of applying for and seeking exoneration through ministerial review or post-conviction review is what we are referring to by the "post-appellate process."

   Often, individuals applying for ministerial review or habeas corpus (or other post-conviction review process) have neither enough funds to hire legal representation, nor are they appointed legal assistance. (10) Applicants, however, may apply to a grassroots advocacy group for assistance in the post-appellate review process. (11) These organizations are empowered by students, volunteers, and lawyers working pro bono, advocating on behalf of the wrongly convicted. Applicants may apply to have their cases reviewed by these agencies based on claims of factual innocence. In the present paper, we will look at two processing models that may present themselves within this process: top-down and bottom-up processing models.

2. TOP-DOWN VS. BOTTOM-UP PROCESSING

   In line with previous researchers, we too assume that top-down and bottom-up processes both entail systematic processing as opposed to heuristic processing. (12) When people engage in systematic processing, they enthusiastically and thoroughly evaluate information relevant to the judgment decision. Alternatively, when people engage in heuristic processing, they evaluate information relevant to the judgment decision in a more lackadaisical and less systematic manner. (13) The main difference between the two processes is that top-down processing is primarily deductive, while bottom-up processing is primarily inductive. (14)

   Theories and contextual features influence the decisions of individuals who engage in top-down processing in judgment decisions. This framework, then, creates a "lens" through which people make ultimate judgment decisions. (15) The processor overlooks, dismisses, or holds in less regard, information that disconfirms his or her theory. Quite contrary to this, the processor holds confirming evidence in high regard, as consistent with other information, and as relevant to the judgment decision. (16) An example of top-down processing involves a judge in an appellate court. The appellate judge receives an appeal and knows that the trial judge found the appellant guilty. By virtue of the context in which the judge receives the appeal, the judge might develop a theory that the trial judge was correct and that the appellant is in fact guilty. If the judge engages in top-down processing, the theory that the appellant is guilty would dictate the appellate process, driving a subjective search for truth. (17) The judge may overlook, dismiss, or hold in less regard, new evidence presented by the appellant, instead maintaining the salience of the evidence presented in the initial trial. The judge can only see evidence through the "lens" of the appellant-guilty theory he or she developed. (18)

   Alternatively, raw data and facts largely drive the decisions of individuals who engage in bottom-up processing in judgment decisions. (19) Theories and contextual features do not dictate processing in...