May a witness challenge the conviction? (Some) Confirmation bias in legal experts

Belief-consistent information processing is ubiquitous (Nickerson 1998): Whenever people hold prior beliefs, they “seek, interpret, and create new evidence in ways that verify their pre-existing beliefs” (Kassin et al. 2013, p. 44). Individuals prefer belief-consistent over belief-inconsistent information (Hart et al. 2009), they erroneously perceive new information to confirm their beliefs (Lord and Taylor 2009), and they tend to discredit belief-inconsistent information (Ditto and Lopez 1992). All of this may lead to a persistent belief despite contrary evidence (Davies 1997), which is even more pronounced after people have already made far-reaching decisions (Festinger et al. 2011/1955).

Importantly, confirmation bias is not limited to cases in which people want their beliefs to be true (Snyder and Swann 1978; Snyder and Uranowitz 1978). Thus, it is not surprising that confirmation bias is found even in contexts where people are deliberately motivated to be unbiased (Lord et al. 1985), such as in scientific research (Greenwald et al. 1986) as well as in forensic investigations: Even if people are personally indifferent about the quality of a statement and motivated to provide an accurate evaluation, they are still influenced by prior information about the credibility of that person (Bogaard et al. 2014). Moreover, experts may be influenced by prior information: During the investigation, crime scene investigators may interpret the same scene differently depending on prior information (Dror et al. 2006; Elaad et al. 1994; van den Eeden et al. 2016). Additionally, forensic investigations sooner or later focus on certain leads coming along with specific hypotheses (e.g., a certain person being suspected, Fahsing and Ask 2013; Singelnstein 2016), and thus, confirmation bias is almost invited here. In its worst version, it may then lead to a self-fulfilling prophecy as guilt presumption fosters an interrogation style that makes the interviewed person more nervous and defensive (Lidén et al. 2018c), which is then interpreted as a sign of guilt (Kassin et al. 2003), even if innocent people react the same way (Hill et al. 2010). Hence, guilt-presumptive interrogation may produce false confessions (Costanzo and Costanzo 2014; May et al. 2022; Volbert 2013). Still, when it comes to trial, the defense may take all legal measures to challenge the perspective of the prosecution. That is, trials are an institutionalized attempt to counter (confirmation) bias (Singelnstein 2016)—at least in theory.

Although there is much evidence for confirmation bias in the forensic context (Kassin et al. 2013), only a few studies on professional legal decision-making exist. Their comparability is already challenged by their conduct in different legal systems (cf. Lind et al. 1973). Moreover, some studies have methodological shortcomings: Research examining case studies or reviewing court records (Dobbie et al. 2018; Findley and Scott 2006; Lidén et al. 2018a, b; Schünemann 1988) always faces the challenge of providing conclusive evidence for confirmation bias. Pretrial detentions, for instance, which increase the probability of guilty pleas and the probability of a conviction (Dobbie et al. 2018) are likely predominantly issued in cases that are characterized by a higher a priori probability to convict. Moreover, pretrial detentions may produce the very result by exerting pressure on the accused to plead guilty (Euvrard and Leclerc 2017). Also, the extent to which the court deviates from the prosecution’s plea does not provide ultimate evidence for a bias as long as deviations from the defense cannot be determined (Schünemann 1988). Finally, some of the older studies (Bandilla and Hassemer 1989; Schünemann 1995, Study 1) comprised sample sizes that are regarded as insufficient today (Nelson et al. 2018).

Of the remaining research, there are two studies demonstrating a confirmation bias in the search for information and the postdecisional evaluation of information (Lidén et al. 2018d; Schweizer 2005; Schmittat and Englich 2016). The evidence is mixed, however, concerning the evaluation of novel information: Two studies by Rassin (2017) found that the same evidence was evaluated as stronger when it followed another piece of evidence that pointed in the same direction, whereas the evaluation of a novel piece of ambiguous evidence was not affected by prior detention decisions, which were supposed to elicit a stronger guilt presumption (Lidén et al. 2018d). Being confronted with evidence that is inconsistent with a prior hypothesis is extremely common in court, however. On the one hand, there is a clear hypothesis guiding each trial: charges are pressed and a trial is conducted only if a conviction is more likely than an acquittal (Schünemann 1995). On the other hand, prosecution and defense argue from different perspectives, which is envisaged to prevent confirmation bias. But does it work that way? The present research addressed this question for two reasons. First, the empirical basis to date is inconsistent when it comes to professional decision-makers. Second, we cannot generalize from studies with laypeople as legal training may foster the ability to control for unwarranted influences (Kahan et al. 2011). Therefore, we conducted a study with judges and prosecutors testing for confirmation bias in the evaluation of novel information that is consistent vs. inconsistent with their prior assumption. Additionally, we examined whether confirmation bias varies as a function of the strength of the prior assumption (operationalized by the amount of evidence for it, Study 2) as this is likewise an unsolved question so far: On the one hand, research found uncertainty to increase belief-consistent information processing (Sawicki et al. 2011). On the other hand, stronger prior evidence led to an even stronger search for incriminating evidence (Rassin et al. 2010).

In sum, confirmation bias was small and evident only on some variables. Participants were more critical of the witnessing conditions of a statement that was inconsistent (vs. consistent) with prior evidence. Discrediting the circumstances of witnessing was, in turn, related to the perceived reliability of the statement (Study 1), which translated into a—smaller—confirmation bias on this variable, which was documentable when statistical power was large (Study 2). We had, however, used a conservative operationalization of confirmation bias. That is, we focused on variables for which (in)consistency should not matter: the description of the witness and the circumstances had been identical for all statements. The obtained effects of statement (in)consistency thus clearly argue for confirmation bias. But what about the evidential value of the statement? We obtained significant effects of statement (in)consistency here as well. Could this speak for confirmation bias, too?

The answer to this question varies with the interpretation of those items. Evidential value, for one, could be interpreted narrowly in terms of the reliability of the witness’s testimony: Does the testimony correspond to the witness’s perception? In other words, does it accurately reflect her knowledge? Since the circumstances for the witness statements were identical, the significantly lower rates for the evidential value of the inconsistent (vs. consistent) testimony could indicate confirmation bias. The evidential value was significantly positively correlated with the reliability of the testimony, r = 0.637, p < 0.001. However, it is also conceivable that “evidential value” was understood more broadly, namely as the importance of the testimony for the judicial conviction of the suspect’s guilt. And in this respect, it certainly matters whether the content of the testimony incriminates or exonerates the specific suspect. If a second witness statement incriminates the suspect along with the first one, it should enhance the conviction that the suspect committed the crime. In this understanding, it would be rational (and thus not indicative of confirmation bias) to assign a higher evidential value to a (consistent) incriminating statement than to an (inconsistent) exonerating statement.

Considering the different possible interpretations, we are cautious with our conclusions. Likewise, it is noteworthy that confirmation bias might also be hidden in the evaluation of the second witness report: Without an independent rating of the evidential value of the second witness report, it cannot be precluded that prior evidence led to an undue discrediting of the inconsistent report (and its effect on guilt ratings). But this discussion already points to the greater complexity of real-world settings. And although we aimed at an ecologically valid examination of confirmation bias, our experiment still lacks crucial features of real-world settings (Konečni and Ebbesen 1992): Participants in our studies had no stakes in the outcome or in the prior assumptions—and several studies suggest that this enhances perseverance effects (Festinger et al. 2011/1955; Jonas et al. 2001; Schmittat and Englich 2016). More importantly, various actors and processes interact (Singelnstein 2016): Investigators may commit themselves to a hypothesis too early (Fahsing and Ask 2013) and be biased by it (O’Brien 2009), when interviewing suspects (Hill et al. 2010; Kassin et al. 2003; Lidén et al. 2018c) or evaluating evidence (Ask and Granhag 2007a; Appleby and Kassin 2016; Simon et al. 2004). Consulted experts may be biased by information provided to them (van den Eeden et al. 2016) or by the side that retained them (Murrie et al. 2013). The investigative proceedings, however, effectively shape the file upon which it is determined whether charges are pressed and a trial is opened (Schünemann 1988). Consequently, the prosecution has a pronounced influence on the trial, which may undermine the idea of institutionalized dissonance that is supposed to result from the work of opposing parties (Singelnstein 2016). Furthermore, the decision to press charges as well as to conduct a trial may bias subsequent information processing as it further increases commitment to prior assumptions (suspicion against the defendant, Schünemann 1995) but possibly also because all participants in the legal trial act according to their role (Babcock et al. 1995). In other words, the real world does not only entail more opportunities for confirmation bias to step in, but those opportunities are not independent of one another. Rather, earlier stages affect later stages by setting the course and laying the foundations for the file, the trial, and the verdict (Singelnstein 2016). Consequently, bias likely accumulates during the process. Against this background, it becomes clear how minuscule the fraction of reality is that we examined here. Therefore, our results are anything but an all-clear signal. Not only because we did find confirmation bias but because our results likely provide a rather conservative estimate—with real-world effects likely being larger. Therefore, our findings should not be taken lightly.