Behavioral Economics and the Law
Part 2
Behavioral New World
February 1, 2022
Behavioral Economics and the Law, part 2
Are you a responsible American citizen? If so, you will likely confront the possibility some day of sitting on a jury (I just filled out a form verifying my eligibility). And if you do serve on a jury, you will want to perform your duties in the most competent, fair, and unbiased manner possible. Well, I hope you would. Problem is, the cards are stacked against your being able to achieve that—especially the “fair and unbiased” bit. Here's why.
Juries are composed of from six to 12 people. One important influence on a jury’s decision is groupthink. You have probably heard this word; it is self-explanatory—how does being in a group influence our thinking? “Herd mentality” (think lemmings or migrating wildebeests) is basically the same thing.
In a group, there is pressure—maybe explicit, but could be implicit—to conform to the beliefs of the majority. The pressure to conform is easily understandable in the context of a jury—in most cases, the verdict (guilty or not guilty) must be unanimous. Members of the jury cannot go home until a verdict is reached or until, after an extended period, the judge declares a mistrial.
Groupthink leads to decisions that some jurors later second guess. The headline of one article: “Regret haunts juror who thinks he convicted an innocent man.”[1] After the guilty verdict was rendered, the juror in question wrote to the judge, “I am ashamed that my desire to be part of a group impaired my judgment,’’ reflecting his first-hand experience with, and awareness of, groupthink.
What can be done about groupthink? As always, the first step is awareness that it exists. A possible remedy is to appoint a “devil’s advocate,” someone whose job it is to argue against the majority view. The devil’s advocate does not have to believe in the view that they are espousing, but their arguments can lead to deeper thinking about the issues, (e.g., the validity of the evidence and the credibility of witnesses).
“Red-teaming” is much the same thing, but with a devil’s advocate team (more than one person). It is easier to argue against the majority view if you have company! Both approaches (devil’s advocate and red-teaming) can be used for any decision-making group, such as the board of directors of a company.
In the classic movie, “12 Angry Men,” Juror 8 is not formally assigned to be the devil’s advocate, but he is the only juror who originally believes that there should be more discussion rather than a quick “guilty” vote. (Juror 7 is in a hurry to go to a baseball game and thus wants the vote to happen quickly.) Gradually, other jurors begin to question the evidence and eventually the jury agrees on a “not guilty” verdict. One person can make a difference!
In sum, if you are ever a juror, don't forget all the lessons you've learned in this and previous newsletters. Confirmation bias (May 2020 newsletter) and affiliation bias (October 2021) could easily be at play in jury deliberations. An understanding of behavioral economics will help you be fairer and more unbiased.
[1] https://blogs.mprnews.org/newscut/2017/11/regret-haunts-man-who-thinks-he-convicted-an-innocent-man/