When Deference Is Dangerous: The Judicial Role in Material-Witness Detentions

By Gouldin, Lauryn P. | American Criminal Law Review, Summer 2012 | Go to article overview

When Deference Is Dangerous: The Judicial Role in Material-Witness Detentions


Gouldin, Lauryn P., American Criminal Law Review


IV. THE DYNAMICS OF BIAS AND DEFERENCE

Before evaluating the factors that prompted judicial acquiescence in the material-witness context, it is important to highlight that the incomplete factual information available about these cases lends itself to speculation, not to conclusive determinations. The analysis is also limited by our inability to peer into the minds of the judges in these cases.

With those caveats in mind, there are at least two significant influences on the judiciary that merit closer examination: cognitive biases and pressure to defer. These potential explanations implicate different but equally important conceptions of judicial independence. They are not offered as alternative theories--both factors likely played a role in creating what one scholar has described as the "dangerously credulous Judiciary." (167)

A. Cognitive Biases

The first explanation focuses on the judicial decision-making process and considers the extent to which the excess of caution in these cases may be attributable to cognitive biases. There is growing literature on the psychology of judging. (168) Although the neutral and detached role of the judiciary is often celebrated in Supreme Court opinions, (169) it is widely understood that judges are neither as independent nor as deliberative as these mythological descriptions suggest. (170) While the idealized vision of the judicial branch views it as immune from the partisanship that infects the "political" branches, (171) political scientists and judicial scholars have made a persuasive case that judicial decision-making is strongly influenced by a judge's attitudes. (172) Although those forces certainly impact judicial behavior, our system anticipates and tolerates attitudinal differences or preconceptions. (173)

The focus here is, instead, on the potential influence of impermissible biases or preconceptions. (174) The material-witness arrests and detentions occurred in the context of several factors that are known to impair decision-making. As such, it is appropriate to evaluate the role that those types of cognitive biases may have played in these cases. The following subsections explain the relationship between intuition and deliberation, consider the ways that perceptions of threat can be distorted, and examine the potential role of ethnic or religious biases.

1. Intuition, Deliberation, and Overconfidence

Researchers looking at the questions of how people make decisions generally agree that there are "two 'systems' of cognitive operations by which human beings evaluate risky situations." (175) The processes of the intuitive system are "spontaneous, intuitive, effortless, and fast," (176) and they generally operate as a subconscious "shortcut" for "more deliberative or analytic assessment." (177) While this intuitive system allows for more rapid decision-making, it is also more vulnerable to emotional influences and racial or ethnic biases. (178) By contrast, our deliberative system requires "effort, motivation, concentration, and the execution of learned rules." (179)

Chris Guthrie, Jeffrey Rachlinksi, and Andrew Wistrich have researched and written extensively about the ways that cognitive biases may distort judicial decision-making. (180) Their model "views judges as ordinary people who tend to make intuitive ... decisions, but who can override their intuitive reactions with complex, deliberative thought." (181) In fact, they have found some evidence that judges may actually be more skilled (than non-judges) at compensating for cognitive biases by forcing themselves to be deliberative when sensitive or troublesome issues arise. (182)

That being said, because all humans tend to be overconfident and because judges are presumed to have good judgment, there is a risk that judges may be less willing to acknowledge or correct their cognitive biases. (183) This overconfident bias can be particularly problematic in cases "where accurate judgments are difficult to make" and where the decision-makers "possess some expertise. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

When Deference Is Dangerous: The Judicial Role in Material-Witness Detentions
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.