Judges Versus Jurors: Biased Attributions in the Courtroom

Posted: 26 May 2020

See all articles by Goran Dominioni

Goran Dominioni

Dublin City University- School of Law and Government

Pieter Desmet

Erasmus University Rotterdam (EUR) - Erasmus School of Law

Louis T. Visscher

Erasmus University Rotterdam (EUR) - Erasmus School of Law; Erasmus University Rotterdam (EUR) - Rotterdam Institute of Law and Economics

Date Written: April 25, 2020

Abstract

The fundamental purpose of a tort trial is to allocate responsibility. However, attributing fault is difficult, and decades of research in psychology have shown that human beings are prone to make systematic errors in performing this task. What can be done about this? The United States and countries in continental Europe adopt diametrically opposed strategies to reduce errors in the attribution of responsibility in the courtroom. American law delegates fact-finding to jurors and makes some type of evidence inadmissible in court to protect jurors from potentially biasing information, such as character evidence. European legal systems, instead, employ almost exclusively judges to perform fact-finding and allow character evidence at trial, under the assumption that judges are better than laypeople in weighing the probative value of this type of evidence. There is a longstanding debate among legal scholars on whether the American or the European approach reduces more trial errors, but the relative performance of the two legal systems remains largely untested. This article is the first to provide evidence on the relative performance of these two systems. Our results suggest that jurors fail to correctly apply European rules of character evidence. The American rules on the inadmissibility of character evidence seem therefore a more appropriate choice when fact-finding is performed by jurors. We find also that, contrary to jurors, judges apply European rules correctly and thus reduce the risk of errors in the attribution of responsibility. Overall, this result indicates that the American and the European evidence rules to improve fact-finding are well set up. Nonetheless, we also find that neither of the two systems is able to prevent fact-finders’ errors in the attribution responsibility when these mistakes are not due to the type of evidence presented at trial but to (unconscious) beliefs held by fact-finders themselves. We thus propose a set of policies that could improve fact-finders’ ability to avoid mistakes in attributing responsibility.

Keywords: Fundamental Attribution Error; Behavioral Law and Economics; Judicial Decision-Making; Tort Law; Character Evidence

Suggested Citation

Dominioni, Goran and Desmet, Pieter and Visscher, Louis T. and Visscher, Louis T., Judges Versus Jurors: Biased Attributions in the Courtroom (April 25, 2020). Cornell International Law Journal, Vol. 52, No. 2, 2020, Available at SSRN: https://ssrn.com/abstract=3585192

Goran Dominioni (Contact Author)

Dublin City University- School of Law and Government ( email )

Ireland

Pieter Desmet

Erasmus University Rotterdam (EUR) - Erasmus School of Law ( email )

3000 DR Rotterdam
Netherlands

Louis T. Visscher

Erasmus University Rotterdam (EUR) - Erasmus School of Law ( email )

3000 DR Rotterdam
Netherlands
+31 (10) 408 1833 (Phone)
+31 (10) 408 9191 (Fax)

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Erasmus University Rotterdam (EUR) - Rotterdam Institute of Law and Economics ( email )

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Rotterdam, 3000 DR
Netherlands

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