Prosecutors wield tremendous power, which is kept in check by a set of unique ethical obligations. In explaining why prosecutors sometimes fail to honor these multiple and arguably divergent obligations, scholars tend to fall into two schools of thought.
The first school focuses upon institutional incentives that promote abuses of power. These scholars implicitly treat the prosecutor as a rational actor who decides whether to comply with a rule based on an assessment of the expected costs and benefits of doing so.
The second school focuses upon bounded human rationality, drawing on the teachings of cognitive science to argue that prosecutors transgress not because of sinister motives, but because they labor under the same cognitive limitations that all humans do.
… Research on the psychological effects of accountability demonstrates that when people are judged primarily for their ability to persuade others of their position, they are susceptible to defensive bolstering at the expense of objectivity.
We know that false confessions do happen on a fairly regular basis…In the November 2004 issue of Psychological Science in the Public Interest, APS Fellow Saul Kassin looked at the body of research and described how the police are able to interrogate suspects until they confess to a crime they didn’t commit.
Generally, it starts because people give up their Miranda rights. In fact, Richard A. Leo found that a majority of people give up the right to remain silent and the right to an attorney. In fact, according to self-report data, innocent suspects gave up their rights more often than guilty suspects (most told Leo either that this was because they felt that they didn’t have anything to hide because they were innocent or that they thought it would make them look guilty).
Once a suspect starts talking, the police can use a variety of techniques to make the accused feel as though they are better off confessing than continuing to deny (these include promises of leniency and threats of harsher interrogation or sentences). If a suspect feels like a conviction is inevitable not matter what he or she says, confessing may seem like a good idea.
But, in some cases, the accused comes to believe that he or she actually did commit the crime. It’s been shown repeatedly that memory is quite malleable and unreliable. Elizabeth Loftus has repeatedly shown that the human brain can create memories out of thin air with some prompting. In a famous series of experiments, Loftus, APS Past President, was able to help people create memories for events that never happened in their lives simply through prompting. She helped them “remember” being lost in a shopping mall when they were children, and the longer the experiment went on, the more details they “remembered.” The longer police interrogate a suspect, emphatic about his guilt and peppering their interrogation with details of the crime, the more likely a suspect is to become convinced himself.
. . . What confessions rarely include is an explanation of why the person confessed. In most states, police are not required to videotape the interrogations, just the confessions. So juries don’t get to see any potential police coercion and they don’t get to see the police planting those vivid details in the minds of the suspects.
I find both A Situationist View of Criminal Prosecutors and The Situation of False Confessions relevant to Sop’s comment on A mind is like a parachute… Sop suggested the post was the start of a process responsive to an offline comment about the need for reconciling the blogging we did on the Scruggs scandal with our collective body of work. While I see value in reflecting on our blogging (the process), after reading from the research on situationist thinking, I’m not certain of the need for reconciliation.
Last January I began a post on the “expert witness” reports in Gagne v State Farm with an applicable quote: “We don’t see things as they are, we see them as we are”. My post-graduate education and training, as well as my professional practice, is in the scientific disciplines devoted to understanding how humans make sense of their world. Sop explained his related interest when he introduced behavioral economics in a post this past July.
When I first met Nowdy and we began to get to know each other I told her my favorite hobby was investing and to that end, the fields of Game Theory and Behavioral Finance were of great interest to me along with their political first cousin Public Choice theory, the latter two economic disiplines being relative newcomers to our body of collective knowledge.
After 20 months of writing here at slabbed I finally get to indulge those passions and perhaps educate our readers on the mechanisms at work that resulted in what became known here on Slabbed as The Scheme, a series of posts by Nowdy that explained the bad behavior of the insurers here after Katrina. In short not only do we tell you who dunnit but also how it could happen in a large organization like State Farm, Nationwide, USAA, Allstate and others.
In other words, when our backgrounds are considered in light of the situationist research, there is a reconciliation of the blogging we did on the Scruggs scandal with our collective body of work – particularly when the recent 5th Circuit opinion on the lack of federal jurisdiction in bribery cases involving state court judges and the revelations in Kings of Tort are also considered. In fact, System Justification Theory and Research: Implications for Law, Legal Advocacy, and Social Justice suggests it is not our blogging that needs reconciliation with fact:
The theory, first advanced by Jost and Banaji in 1994 and supported by scores of studies in the decade since, posits a general human tendency to support and defend the social status quo, broadly defined. How such a motive is expressed in attitudes and behavior will, of course, vary by individual and situation. But Jost and Banaji suggested that the familiar motives of ego justification (or self-interest) and group justification (or ingroupfavoritism) were insufficient to account for many phenomena observed both in the real world and in the psychologist’s laboratory. Among these phenomena are the many instances in which those who are seemingly disadvantaged by a social system become its most ardent supporters.'”‘
Stereotypes and ideologies supply ready-made justifications, explanations, and excuses for the system. Much as ego justification motives become more pronounced when our self-esteem is threatened, causing us to become “defensive,” system justification motives become most evident when we perceive a threat to the legitimacy of a system to which we are attached…
The public conversation about the Scruggs’ indictment was framed.
The terms frame and framing have come to mean slightly different things in several different disciplines, each of which has penetrated law and legal scholarship to a different degree. The “framing effect” first identified by Kahneman and Tversky, i.e., the tendency for people to prefer one presentation of a risky choice to another presentation of the same choice, is perhaps the psychological effect best known to legal scholarship.
And framing, as a more general concept referring to a tacit interpretation, is certainly not new to practitioners or scholars. The same event, such as the death of a child in an apartment fire, can be “framed” as a result of parental neglect, a greedy slumlord, or a deficient housing inspection program. Each frame implicates a different system: the family system, landlord/tenant relations, or the local government. Framing has consequences. Although all of these causal explanations might be true, most people gravitate toward only one of them. As one popular account put it,”[e]very frame defines the issue, explains who is responsible, and suggests potential solutions.”
Who “framed” the public conversation about Scruggs? Lawyers with ties to the insurance industry and/or the judicial system in north Mississippi, including the northern district federal court, who perceived a threat to the legitimacy of the system to which [they] are attached.
SJT suggests that people are motivated to accept and perpetuate features of existing social arrangements, even if those features were arrived at accidentally, arbitrarily, or unjustly.
Obviously, one of the features of existing social arrangements some wanted to perpetuate were their own ethical lapses at the expense of those of Scruggs. Why Good Intentions are Often Not Enough: The Potential for Ethical Blindness in Legal Decision-Making explains how otherwise experienced and principled lawyers can make blatantly unethical decisions:
To an outsider looking at these circumstances, it invariably appears that the lawyers involved consciously acted immorally.Within the common framework of deliberative action, we tend to see unethical behaviour as the result of conscious and controlled mental processes…one of the most important cognitive processes in the context of ethical awareness is rationalization. Not only is rationalization part of how we consciously reason about our ethical decision making, it also has the capacity, when used over time, to become an automatic mental process.
This tendency can be increased by situational factors that encourage rationalization, and by professional and organizational justifications that mask unethical conduct. As such, rationalization is important to consider in the context of legal decision making. If reasons such as ‘It is just my job’, ‘I was told to do it’ or ‘Everyone else is doing it’ become deeply embedded in how lawyers think about their behaviour, and this thinking is reinforced by workplace or professional norms, ethical blindness can result. In particular, lawyers may not ‘see’ the moral components of their behaviour, not because they are morally uneducated or lack good intentions, but because rationalization processes remove the ethics from view.
…we may need to rethink the extent of deliberative reasoning involved in the chain of moral judgment. It is probable that people unconsciously react first to situations, and then consciously reason through their decisions and behaviour in relation to those situations. This process can happen so fast that it is all perceived as being part of an authentic and conscious act of evaluation. Yet because the reactive part of the process happens almost exclusively at the unconscious level, the reasoning that follows is based on those aspects of the process that reach conscious awareness. This idea is also consistent with Haidt’s work on moral intuitions. He argues that ethical judgments usually reflect immediate intuitive reactions which individuals justify post hoc by recourse to socially acceptable reasons. “Individuals do not engage in moral reasoning to arrive at a conclusion, but rather engage in moral reasoning to justify a conclusion already reached.”
Finally, psychological research suggests that ethical decision making is influenced by a strong unconscious bias towards maintaining our self-interest. There is evidence from cognitive, social and evolutionary psychology that self-interest is an automatic egocentric default in our thinking.23 Perceptions, judgments and behaviours are generally shown to be biased towards promoting our self-interest and maintaining a positive self-image. “[I]individuals view themselves as moral, competent and deserving and this view obstructs their ability to see and recognise [ethical issues] when they occur”. As a result, Epley and Caruso suggest that “[a]utomatic evaluations produce moral reasoners who are not empiricists reasoning dispassionately about a particular issue, but motivated partisans seeking justification for a pre-existing intuition.”
Why do people confess to crimes they didn’t commit?
MR . DAWSON : May it please the Court, the United States Attorney hereby proposes a plea agreement for the Court that has the following provisions: The defendant agrees to plead guilty under oath to Count 1 of the indictment, which charges a conspiracy to corruptly influence a state circuit judge and which carries the maximum possible penalties of five years’ imprisonment and $250,000 fine; three years’ supervised release; and a mandatory special assessment of $100; all in violation of Title 18, United States Code, Section 371…