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. …