Judges as Amateur Psychologists Making Rules and Rulings

In the process of creating rules of evidence, or making rulings on evidence, judges unavoidably are thinking about the psychology of witnesses, litigants or jurors. For example, to create a rule conditioning testimony on a witness's taking an oath bespeaks an assumption that something about oath-taking will increase the veracity of witnesses. Similarly, to create a rule excluding evidence of subsequent remedial measures requires a theory that litigants will weigh risks and benefits when deciding whether or not to repair a dangerous situation, and perhaps even a theory of what that risk calculus will be. And to create a rule for the exclusion of evidence likely to be overvalued by jurors, judges had to believe that jurors would assess some evidence differently—and incorrectly—compared to what the judges thought was the correct assessment of the evidence. In effect, evidence rule-makers are amateur psychologists theorizing about the psychology of witnesses and jurors and litigants. These theories and the observations, assumptions, and inferences that give rise to them have been memorably referred to as 'fireside inductions' (Meehl, 1989).

Where the focus of the rule-maker is on the people or circumstances that produce more or less reliable testimony, the rule-makers are generally acting as applied cognitive psychologists. This perspective is reflected in the rules concerning the competency of witnesses, oath, cross-examination, leading questions, habit, and some of the exceptions to the rule against hearsay. The rule-maker generally is acting as an applied social psychologist when focusing on the behavior of litigants, reflected in such rules as those excluding evidence on offers of compromise, subsequent remedial measures, pleas, and insurance. But most of the rules reveal the rule-makers to be amateur cognitive social psychologists concerned with the jury, reflected in such rules as those governing hearsay and many of its exceptions, character evidence, and assessment of witness credibility.

The decision-making of these amateur psychologists can, in its turn, be examined. How well are they doing? Part of evaluating their performance as decision-makers could involve evaluating the beliefs on which their decisions are based. How accurate are their beliefs about witness, litigant, and juror psychology? Rules and the rulings might be improved by improving the information base on which they rest—by replacing intuition and guesswork with improved systems of logic (including probability theory) or with empirically based knowledge about the psychology of witnesses and jurors and litigants.

Note that judges are not merely trying to predict how jurors will assess evidence. The mental gymnastics in which these judges are necessarily engaged is far more complicated. They first have to decide what the correct (or a range of correct) inferences are that should be drawn from the evidence. (Query how well judges do that.) Then they must predict how jurors will assess, and what inferences jurors will draw from the same evidence. (Query how well judges do that.) And then they must compare the two sets of inferences and judge whether the gap is so large that something must be done to correct the discrepancy. It is entirely possible that the judges are themselves in error either about the proper inferences to be drawn from the evidence or about the inferences that jurors will draw, or both. What little research exists making direct comparisons between the decisions judges make on evidence and the decisions jurors make, shows them to be far more similar than different (Rakos and Landsman, 1992; Wells, 1992; Kalven and Zeisel, 1966). Such findings suggest that the fundamental assumption that jurors are poorer decision-makers about facts than judges are might itself be in error. From there it is a short step to wondering whether the corrections embodied in the rules of evidence might be over- or under-corrections.

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