Going Beyond the "biased Prosecutor" Account: Exploring Cognitive Biases That Can Affect Judges' and Defense Attorneys' Brady—related Decisions
| Publication year | 2018 |
| Author | By Ryan Hartzell C. Balisacan |
By Ryan Hartzell C. Balisacan*
In Brady v. Maryland, the Supreme Court held that "suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment."1 As a "rule of fairness,"2 the Brady doctrine3 counterbalances prosecutors' access to potentially exculpatory evidence unknown to the defense. It obligates them—despite their natural instincts—to perform acts that may end up exonerating a defendant.
Today, critics suggest that Brady is being honored more in the breach than in compliance. As Judge Alex Kozinski of the Court of Appeals for the Ninth Circuit lamented in a 2013 dissenting opinion, "there is an epidemic of Brady violations abroad in the land."4 His grim diagnosis resonated strongly across the country, especially in California, where incidents of alleged prosecutorial misconduct frequently land on newspapers' front pages.
For instance, in 2012, the American Civil Liberties Union of Southern California challenged5 evidence-disclosure policies of the District Attorney's Office and the Sheriff's Department of Los Angeles for being, among others, inconsistent with Brady.6 In 2016, the Orange County District Attorney's Office—which ranked 2nd (out of 58 counties in California) in terms of the prevalence of prosecutorial misconduct,7 was investigated by the Department of Justice for allegedly committing "systematic [Brady] violations."8
In 2015, Superior Court Judge Thomas Goethals disqualified the entire Orange County District Attorney's Office from handling the Scott Dekraai murder trial due to prosecutors' "chronic failure" to turn over material evidence.9 The controversy was the impetus10 for Governor Jerry Brown's approval in August 2016 of a law—the first of its kind in the nation—making it a felony for prosecuting attorneys to alter or conceal exculpatory evidence.11
In November 2017, the California Supreme Court approved revisions to Rule 5-110 (D) of the California Rules of Professional Conduct.12 The revised rules emphasize prosecutors' duty to disclose not only evidence that is "material" by Brady standards, but also "impeachment evidence or information that a prosecutor knows or reasonably should know casts significant doubt on the accuracy or admissibility of witness testimony on which the prosecution intends to rely."13
These developments indicate a growing concern that Brady violations, as Judge Kozinski said in his Olsen dissent, are indeed a "systemic problem"14 in California as in many other jurisdictions.15 And while the exact magnitude of the problem remains unknown, nobody denies the urgency and importance of understanding and addressing it.
In searching for explanations, some scholars posit that Brady violations occur because prosecutors take advantage of loopholes in the system,16 and play creative "games"17 to evade their Brady duties. For these scholars, a confluence of environmental factors,18 organizational features,19 and accountability mechanisms20 can induce or enable prosecutors to violate Brady in bad faith.
This "malicious prosecutor" account, however, cannot offer a parsimonious explanation for every Brady violation. Realizing that some prosecutors' failure to disclose favorable and material evidence could be rooted in unconscious processes rather than malicious intent, scholars like Professor Ellen Yaroshefsky alternatively propose that Brady violations could be due to prosecutors' cognitive biases.21 Hence, for instance, under this "biased prosecutor" account, prosecutors can systematically undervalue the exculpatory potential of a piece of evidence (and, as a result, decide not to disclose it under Brady) because they unconsciously prefer judgments of conviction,22 or because they are biased in favor of confirming23 the findings of investigators or the theory of the defendant's guilt to which they have committed at the outset.
The literature dealing with Brady violations is expanding, and it continues to specify cognitive biases that can affect prosecutorial decision making in Brady contexts. Professor Alafair Burke has identified some cognitive biases under which many others can be broadly categorized: confirmation bias,24selective information processing,25 belief perseverance,26 and avoidance of cognitive dissonance.27 Taking these biases into account, Professor Burke had proposed various policy interventions28 that may mediate their effects.
The increasingly popular prosecutor-centric account of cognitive biases begs closer scrutiny, not because it is wrong, but because it may be incomplete. One possible point of inquiry is its underlying, implicit assumption—that some bright-line rule determines what evidence should be disclosed under Brady, and that preventing Brady violations is largely about inducing adherence to such bright-line rule by addressing prosecutors' biases.
But not all cases can be pigeonholed neatly; prosecutors are bound to confront novel questions not clearly covered by existing Brady precedents or rules. And when a novel Brady question arises, we naturally demand the "correct" answer to it, one that hews as closely as possible to the animating spirit of Brady and its progeny. But in working that "correct" answer out, is it proper (or even fair) to focus exclusively on prosecutors? Should we assume that a "correct" answer can be derived so long as the prosecutorial decision making is robust, in good faith, and unbiased? In other words, is the settlement of novel Brady questions a distinctly prosecutorial enterprise?
When a novel Brady question is raised, the burden of answering it will almost never fall on prosecutors alone. A prosecutor's answer to such a question will very likely be litigated subsequently through a Brady violation claim. And in that Brady litigation, the prosecutor—as well the judge and the defense attorney—will look at exactly the same putative Brady material and decide, through the adversarial process, whether it ought to have been disclosed. That decision will then work its way into the body of Brady jurisprudence for everyone's prospective guidance.
Hence, it is erroneous to assume that all manner of Brady-related decision making is the exclusive province of prosecutors, and that suppressing prosecutors' bad faith (under the "malicious prosecutor" account) or countering their cognitive biases (under the "biased prosecutor" account) is the best safeguard against Brady violations. In cases involving novel Brady questions, new standards are evolved largely through litigation, where outcomes are shaped by the constant push-and-pull of prosecutors, defense attorneys, and judges. But while all the actors involved in shaping Brady rules through litigation are vulnerable to cognitive biases, only those biases affecting prosecutors have so far been acknowledged and brought to fore.
[Page 2]
It is high time we recognize that the settlement of novel or "gray area" issues implicating Brady can be a product of a dynamic decision-making process involving all the participants to Brady litigations. These participants, in turn, are motivated by their respective interests and are driven by their own respective biases. We need to bring these cognitive influences to the surface and moderate their effects, so that the biased positions of prosecutors, defense attorneys, and judges in Brady litigations can be adjusted accordingly, until they converge to a point that is as mutually acceptable as possible.
As a first step, insights from cognitive psychology should be harnessed—in the same way they have been for prosecutors—to identify biases that can also affect the decision making of judges and defense attorneys involved in Brady litigations.
Various studies provide insight into cognitive biases that can affect judges' and defense attorneys' decisions. Three of these biases will be tackled below, and applied to the context of Brady litigations.
Role-Induced BiasThe tendency to act in a manner consistent with the perceived demands of one's role is well-established in social psychology.29 In an empirical study,30 Engel and Glockner investigated whether biases can be induced by assigning subjects to opposing roles in a simulated litigation. Subjects were assigned to the role of either "prosecutor" or "defense counsel," given the fact pattern of a hypothetical case, and asked to prepare a pleading advocating their side. Subjects were then directed to disregard their previous roles and predict how a neutral judge might decide the case. Subjects were told that a correct prediction will be incentivized.31 Engel and Glockner found that even after shedding off their roles, and even in the face of an incentive to be objectively correct, subjects systematically predicted a judgment in favor of their previous roles.
Knowing what we know about role-induced bias, it is not difficult to imagine a defense attorney who, assuming the role of defendant's advocate, evaluates the prosecutor's file, overestimates the potential exculpatory value of a piece of evidence, and pursues a Brady claim based on it. That
defense attorney could find it difficult to assume a neutral position from which to assess whether such evidence is indeed Brady material. Once committed to a pro-defendant stance, the defense attorney can be cognitively indisposed to appreciate the evidence except though the lenses of an advocate for the defendant.
The "biased prosecutor" account suggests that prosecutors can fail to see Brady material because of cognitive constraints; but it is worth considering whether biased defense attorneys can, for their part, see a Brady violation where there is none.
Framing Effect BiasThis cognitive bias posits that decisions can be affected...
To continue reading
Request your trial