Nudging the justice system toward better decisions.

• Author: Greene, Edie

DENNIS J. DEVINE, JURY DECISION MAKING: THE STATE OF THE SCIENCE (NYU PRESS 2012). 283 PP.

DAN SIMON, IN DOUBT: THE PSYCHOLOGY OF THE CRIMINAL JUSTICE PROCESS (HARVARD UNIVERSITY PRESS 2012). 416 PP.

One of us has tacked a cartoon to the office door that shows three elderly gentlemen holding cocktails, obviously ill at ease in each other's company---one looking down, a second glancing up, and a third whose gaze seems adrift. The caption reads, "A psychologist, a lawyer, and a shoe salesman attempting to mingle at a cocktail party." This is obvious hyperbole because, as everyone knows, shoe salesmen can talk to all sorts of people, (1) and as we will show, psychologists and lawyers have much to discuss. (2) Two recent books, Jury Decision Making: The State of the Science (3) by Dennis J. Devine and In Doubt." The Psychology of the Criminal Justice Process (4) by Dan Simon, powerfully illustrate this symbiosis. Although the books are bidirectional in the sense that they present psychology's role in legal processes as well as legal implications for the field of psychology, (5) their emphases are decidedly on how psychological research can be used to improve legal policy, procedure, and practice.

To explore how legal processes and procedures can be improved through the use of research findings, we borrow the concept of "nudging," popularized in the book entitled Nudge: Improving Decisions About Health, Wealth, and Happiness. (6) Authors Richard H. Thaler and Cass R. Sunstein show that by considering the complex and occasionally irrational ways that people think, one can offer choices that make it easier for people to reach optimal decisions. We extend this thinking into the legal realm and show that Devine's and Simon's books both offer scientifically based, pragmatic alternatives to procedures and practices that currently hamper fair and efficient legal decisionmaking. We suggest that both Jury Decision Making and In Doubt show how legal decisions can be enhanced through science.

1. PSYCHOLOGICAL CONTRIBUTIONS TO THE LAW

   In Jury Decision Making, Devine, an associate professor of psychology at Indiana University-Purdue University Indianapolis, provides the most thorough and comprehensive collection to date of the large body of psychological scholarship on the variables that influence jury decisions. Specifically, he cites the many methodological and theoretical contributions of psychologists to understanding jury decisionmaking. These include: (1) trial practices related to jury size, decision rule, jury selection, and judicial instructions; (2) the effects of trial context, including exposure to pretrial publicity and inadmissible evidence and varying verdict options and standards of proof; (3) characteristics of trial participants, such as defendants' attractiveness, remorse, and prior records, and jurors' dogmatism, beliefs about the legal system, and approaches to evaluating evidence presented at trial; and finally, (4) aspects of the evidence, including its strength and issues specific to evidence from eyewitnesses, experts, and scientists. Devine relies on data from simulated and real juries alike on questions pertinent to both criminal and civil issues and includes studies of both individual jurors and interacting groups.

   Devine claims that because there have been relatively few attempts to tie together this large body of empirical research, (7) his primary goal was to "gather the many findings about juries and synthesize them into an overarching theoretical framework." (8) Hence, the book's most original contribution is his integrative, multi-level theory of jury decisionmaking that is fleshed out in the second half of the book. As its title suggests, the theory proceeds on two levels of decisionmaking: by individual jurors and within the jury as a whole.

   Devine analogizes an individual juror's decisionmaking to that of a film director who begins the process of shooting a film (reaching a decision) with a script in mind, forming images (in the juror's case, mental images) of the components of the story, and eventually arriving at a final cut (an individual, preliminary verdict preference). In the process, footage (evidence) that does not adhere well to the narrative being developed will be discarded, left on the cutting-room floor. Any ambivalence about the cohesiveness of the narrative will trigger the construction of alternate endings--as disgruntled moviegoers can readily attest--or, in the jurors' case, of alternative narratives.

   Readers familiar with the influential story model developed by Nancy Pennington and Reid Hastie in the 1980s and 1990s (9) might well ask how Devine's model differs from that. Although the story model invokes notions of jurors' expectations regarding how stories are constructed, Devine has more to say about the importance of jurors' cognitive structures, termed schemas, including event-related constructions termed scripts and person-related constructions termed stereotypes. Devine articulates several other subcomponents of this part of his model, including the role of defendant characteristics, individual differences among jurors, and the persuasiveness of the prosecution's or plaintiff's evidence based on its scope, credibility, and singularity.

   When deliberations begin, the process of decisionmaking shifts to "story sampling," in which jurors share their personally constructed stories, and the group as a whole samples from these offerings. The likelihood that any individual juror's story will emerge as the preferred, shared verdict depends on that juror's status within the group and on the nature of his or her contributions (i.e., wholly constructed stories are more persuasive than scattered thoughts, observations, or questions). The nature of verdict-favoring factions, including their size, the effectiveness of their leaders, and the cohesiveness of faction members, also matter. The jury-related aspects of this model are, in our opinion, the particularly important contributions of Devine's theorizing, because jury behavior has been studied much less intensively than individual jurors' cognitive processes. Devine's model impressively combines previously distinct concepts, such as minority and majority influence, normative and informational social influence, social sharing of information, and deliberation style. In addition, it suggests a number of novel and testable predictions that should keep Devine and other jury scholars busy for years to come.

   In In Doubt: The Psychology of the Criminal Justice Process, Simon, a professor of psychology and law at the University of Southern California, reviews psychological research to explain why the predictable irrationality of human thought processes diminishes the accuracy of evidence gathering and verdict determinations. He also suggests ways to rectify this situation. Simon's approach is simultaneously narrower and broader than Devine's: narrower in that it focuses solely on the criminal justice system and excludes civil law, yet broader in that it covers the psychological processes involved not only in jury decisionmaking but in a number of other important contexts, such as police investigations, interrogations, and eyewitness testimony. Because a relatively small number of criminal (as well as civil) disputes ultimately wind up before a jury, this scope makes the subject matter of In Doubt relevant to a large number of legal actors, including the police who investigate crimes, the witnesses, suspects, and defendants who provide evidence, and the judges and jurors who serve as fact finders at trial. As Simon observes at the book's outset, "[o]ne of the obvious features of the criminal justice process is that it is operationalized mostly through people: witnesses, detectives, suspects, lawyers, judges, and jurors.... Criminal verdicts can be no better than the combined result of the mental operations of the people involved in the process." (10) We consider concerns about the mental operations of these legal players throughout this Review.

   Simon's book goes on to examine many of the ways in which those mental operations can, and often do, diminish the accuracy of the process in terms of how the evidence is obtained and used and how that evidence influences verdicts. Simon describes that investigators, in their zeal to resolve cases, can make premature judgments that confirm their suspicions about suspects' involvement, assess suspects' truthfulness incorrectly, and conduct interrogations that coerce suspects into confessing falsely. The mistakes can continue when investigators interview eyewitnesses about their memories for details of crimes and identification of the perpetrators as well as during trials when those same eyewitnesses can exert inordinate influence on jurors' judgments. The chapter on fact-finding at trial, in which this book overlaps most with Jury Decision Making, makes the important point that jurors overweigh factors that have little to no predictive value (e.g., eyewitness confidence) while being relatively insensitive to factors that do predict witness accuracy (e.g., witnessing conditions). (11)

   In In Doubt, Simon does an admirable job of summarizing a large volume of literature in a relatively short space. He also provides some prescriptions for remedying errors. Underscoring the emphasis on practicality, each chapter concludes with a useful set of recommended reforms, about which we will have more to say. As the author acknowledges, some of these reforms would require systematic changes (e.g., shifting investigative incentives from clearing crimes to seeking the truth), whereas others are legally complex (e.g., allowing more expert testimony on topics like false confessions and eyewitness memory). But still others are quite feasible and straightforward, such as recording witness interviews and suspect interrogations and thereby increasing transparency throughout the process. Simon argues...