In the blockbuster film Twelve Angry Men, a jury of 12 men must decide the fate of an 18-year-old boy from the “slums” accused of murdering his father. Initially, all the evidence points to the boy’s guilt, and almost all 12 jurors are quickly ready to send him off the gallows. However, as the movie unfolds, it is revealed that each of the jurors have brought their own individual biases into the courtroom, skewing their perception of the evidence and, in turn, walking them into a hasty guilty verdict.[1] For example, one juror stereotypes all people who live in the “slums” as violent, extrapolating that because the boy is from the slums, he must also be violent, and therefore must have killed his father.[2] The other jurors in the movie exhibit similar biases towards the boy, evidenced by the almost unanimous guilty vote at the beginning of the film before any of the evidence is even discussed. In fact, if not for a sole dissenter who encouraged the group to slow down, consider the evidence from different perspectives, and to reckon with their own pre-established biases, the boy would have been sent to death without much debate.
While Twelve Angry Men is a classic film from an entertainment perspective, it is much more than just an engaging courtroom drama. The movie is also a concrete and accessible example of a real-life bias that appears in courtrooms across the country. That bias? The confirmation bias.
Confirmation bias is the tendency for people to search for, interpret, favor, and recall information that confirms their preexisting beliefs.[3] This bias also can cause people to disregard evidence that contradicts what they already believe.[4] Similar to the discussions in my previous two articles, confirmation bias is an inherent, cognitive bias that has been well-documented to effect human decision-making.[5] Often included in lists of the most common cognitive biases, confirmation bias has been documented since the early 1600s, where Francis Bacon described the bias as a “mischief” that forces the human brain to overlook or reject information that doesn’t support our previously formed opinions.[6] In short, confirmation bias affects us when making decisions because people, including those in the courtroom, seek to confirm what they already believe is true.
Confirmation bias affects everyone involved in the legal process. It begins, as you would imagine, with attorneys. Attorneys are trained to parse through mountains of information to best advocate for their clients. Because of this, they are inherently biased in favor of their clients. This in itself isn’t a bad thing. The legal system we exist in necessitates that attorneys advocate zealously for their clients. The problem occurs when the confirmation bias sneaks into the decisions that the attorney makes. This can occur initially in the discovery process. When sorting through discovered information, an attorney may view uncovered facts in the way that is most favorable to their clients, disregarding, or giving less weight to, unfavorable facts that do not coincide with the attorney’s theory of the case.[7] An attorney may also give less weight to a “seemingly irrelevant fact or an emotional argument,” not objectively understanding how a jury may view this element of the case.[8] But disregarding these otherwise equally important facts, simply because they do not fit neatly into the attorney’s biased understanding of the case, could be dangerous. Acting on confirmation bias, an attorney could accidentally gloss over critical information, give less weight to the opposition’s counter argument, or decide to go forward to trial in a case with weak facts that should have settled. This could lead to an unfavorable outcome for the client that the attorney had dedicated themselves to, despite their otherwise good intentions.
Confirmation bias also affects juries in real life, not just in movies like Twelve Angry Men. As it was demonstrated in the movie, jurors come into a case with their own preconceived biases and experiences that will affect how they understand every new fact presented to them. This means that real life jurors take in information, distort it to fit their own perceptions, and then render a decision based on that distorted information. These biases can be more general, impacting how a juror views the legal system as a whole, or more specific to a case, if, for example, a juror has previously heard a news report or read an article on a particular case.[9] Either way, confirmation bias can be perilous to a case, mainly because this bias, unlike the biases of anchoring or the gambler’s fallacy, is so individualized.[10]
Studies have demonstrated ways to mitigate confirmation bias in a courtroom such as perspective shifting or implementing juror questionaries in advance of voir dire[11], but unfortunately, there isn’t a foolproof way to eliminate bias from the process. And when every human being in a courtroom is prone to confirmation bias, that can make the courtroom a dangerous place for a case to find itself.
The most effective way to protect yourself from confirmation bias in the courtroom is to stay out of the courtroom altogether. Resolutn implements a double-blind, technology-driven system that mitigates confirmation bias to the fullest extent possible. This innovative technology effectively stunts confirmation bias that may plague a case in a litigation setting by decreasing the opportunity for human error. Don’t let litigation confirm your fears for a bad case outcome, choose an unbiased system that makes settlement simple.
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[1] Lynda S. Livingston, 12 Angry Men: A Behavioral Bias Exercise for Finance Students, 13 Business Education & Accreditation: University of Puget Sound (2021) http://www.theibfr2.com/RePEc/ibf/beaccr/bea-v13n1-2021/BEA-V13N1-2021-4.pdf.
[2] Priyansh Maru, Bias Explained Through “Twelve Angry Men”, LinkedIn Blog (Sep. 9, 2015) https://www.linkedin.com/pulse/biases-explained-through-twelve-angry-men-priyansh-maru
[3] Erich Rudich & Shari Beltiz, Confirmation Bias and the Courtroom, Claims and Litigation Management (CLM) (Oct. 14, 2019) https://www.theclm.org/Magazine/articles/Confirmation-Bias-and-the-Courtroom/1885.
[4] Eyal Peer & Eyal Gamliel, Heuristics and Biases in Judicial Decisions, Court Review: The Journal of the American Judges Association (2013) (accessible at: https://digitalcommons.unl.edu/ajacourtreview/422/).
[5] Raymond S. Nickerson, Confirmation Bias: A Ubiquitous Phenomenon in Many Guises, 2 Review of General Psychology 175 (1998) (available at: https://pages.ucsd.edu/~mckenzie/nickersonConfirmationBias.pdf)
[6] See generally Nickerson, supra note 6; Francis Bacon, Confirmation Bias, Novum Organum 46 (1620) (available at https://rintintin.colorado.edu/~vancecd/phil3600/Bacon.pdf).
[7] Rudich and Beltiz, supra note 3.
[8] Id.
[9] Lee Curley, James Menro, & Itiel E. Eror, Cognitive and Human Factors in Legal Layperson Decision Making: Sources of Bias in Juror Decision Making, 62 Med. Sci. Law 206 (2022) (available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9198394/).
[10] Bill Kanasky, Jr., Juror Confirmation Bias: Powerful, Perilous, Preventable, Courtrooms Sciences, (available at: https://www.courtroomsciences.com/articles/juror-confirmation-bias-382#:~:text=Confirmation%20biases%20are%20errors%20in,their%20preconceptions%2C%20biases%20or%20beliefs.) (last accessed Oct. 21, 2022).
[11] Rudich and Beltiz, supra note 3.