This article is a response to our previous article, “Believing the Worst In People,” which can be read here.

Psychology has developed and advanced as a science over the past two centuries to create a large body of information to better understand how people think and act. However, as a student of psychology, I can say I am still surprised by other people’s behavior. This is because while human beings are multifaceted creatures with intricate neural networks for making logical decisions and using sound fact-based judgments, sometimes they simply behave in perplexing and illogical ways.

In a recent article in this magazine, Tom Traina cited a philosophy-based research study that seemed astonishing in its conclusions about the lack of human neutrality and the potential for a strong negative bias.

The participants in the study were asked to read a scenario in which a chairman of a company is briefed about a program that could either help or harm the environment. Based on the scenario, the participants had to determine whether or not the chairman knew the exact future consequences of the potential policy. The subjects used a scale from -3 to 3 to indicate whether or not they felt the chairman knew the outcome. A 3 or -3 response was indicative of absolute certainty and a 0 response indicated absolute uncertainty. Scores of 1, -1, 2, and -2 indicated some degree of uncertainty by the participant, but still indicated a belief about the chairman’s awareness. After collection, the data were then divided into only two groups for each condition: a “yes, he did know” group and a “no, he didn’t know” group. All responses of 0 were not interpreted.

Unfortunately, this all-or-nothing interpretation of the data can lead to unsupported suppositions. Mr. Traina cited the statistic that 90% of the participants in the “harm” scenario felt the chairman “knew” the environment would be negatively affected but proceeded anyway. This is not the case. Only 67% of the people in the “harm” condition felt certain the chairman knew harm would occur (i.e., gave a “3” response). The rest were not completely sure the chairman knew the future consequences, or could not indicate certainty at all. While perhaps still higher than one might expect, one study is not damning evidence that should cause a shift in the entire justice system.

The real question here is not about how an experiment classifies a scaled response on a questionnaire, or even about how the data was pared. The question is about basic human judgment and bias. Are we hard-wired to look at the world negatively? Are we designed to see others as threatening and malicious in the absence of other information? Are we compromised by prejudgment and bias? The answers to these questions are not as simple as yes or no.

Judgment and decision-making in human beings is a complex and fascinating process. These aspects of human thought have caused researchers in cognitive, social, and neuropsychology to compile decades of evidence about how people go about picking, choosing and behaving. Despite these mountains of evidence, we are still a long way from fully understanding how decisions are made.

There are several important facts to remember about human decision-making. First, human beings are not computers–we are able to process, react, and adapt to new and different stimuli and information. The human brain has evolved to learn and grow until death. Second, we are not Vulcans–the human brain is as much a feeling machine as it is a thinking one. Emotions affect our judgments in many ways, both positively and negatively. Third, we are not blank slates. That is, we are not logic calculators that simply run an equation based only on presented evidence. People use what they have learned from living their lives to help them continue that course. Accumulated experience, knowledge, and understanding are the backbone for a functional human being. Without these, we would not be able to properly interact and succeed in our society.

Mr. Traina’s article describes the dysfunction of the jury system based on human judgment errors and predisposition for bias based on one philosophy researcher’s sampling of a forced question. The human factors of the justice system, individual judgment and belief, have been studied by psychologists for quite some time. In fact, different branches of psychology have been “scratching the surface” of how human beings make judgments and decisions for over 50 years. The American Psychological Association has dedicated an entire division of its membership to just this subject. The American Psychology-Law Society has been studying how justice and law interact with human thoughts, behaviors, and emotions for many years. The topics of jury decision making, juror bias, and jury nullification have produced hundreds of articles in respected academic publications, including over a dozen in the past year alone. Indeed, the Journal of Behavioral Decision Making published a special issue, Decision Making and the Law, in December of 2007. This body of evidence has produced some surprising results.

Certainly, jury decision-making has been a source of consternation for decades. Many psycho-legal sources have sought a better means for finding justice without bias. Mr. Traina supports the notion of professional juries and also makes mention of using a judge to accomplish non-prejudicial decisions. However, the evidence suggests this would be no more effective than the status quo. In a classic 1966 study that collected data over 5 years and polled over 3000 judges and juries, Drs. Harry Kalven and Hans Zeisel found that in criminal trials, judges agreed with jury verdicts in 75.4% of all reported cases. In 2.2% of the cases, a judge would have voted to acquit when the jury voted to convict. However, in 16.9% of the cases, the judge would have voted to convict when the jury voted to acquit, and in the remaining 4.4% of cases, the judge would have voted to convict but the jury was hung! In other words, a judge was four times more likely to believe “the worst in someone” than the jury.

Now, some might say that a 20+% differential is a pretty big difference, but not that just because there was a disagreement does not mean the judge was correct and the jury was not. After all, beneath the robes and the legal training, a judge is human, too.

Another important influence on juror decision making comes not from innate human bias, but from the stages of a trial. Counter to Mr. Traina’s point, bias is not automatically triggered by a “criminal charge” or even by something inherently negative. It is not bias at all. Rather, it is basic impression formation. Consider this: As human beings, we are hard-wired to make quick first impressions. Social psychology has shown that a basic impression of another person is usually formed in less than one minute. In fact, impressions of others are molded less by the moral valence of the presented information than they are by the order in which that information appears.

Because humans believe themselves to be good judges of character, we often believe those impressions and use them to guide our future opinion of someone, for good or ill. Imagine yourself in the jury box. Before hearing any evidence, both lawyers present their case formulations, detailing how the jury should see the defendant. This slanted information is your first impression of the defendant! Knowing this, it should not be surprising to find the opening statement in a trial has been shown by researchers to have a considerable effect on the outcome of a case, both for guilty and not guilty verdicts.

As humans, we have an intricate and involved process for coming to a decision. It is not inherently negative or harmful, and it is understandable. When an outcome of that decision-making process is somewhat surprising, that outcome tends to receive unwanted attention. However, little attention is paid when everything runs smoothly. Given the state of our understanding of psychology, Mr. Traina’s calls for reform are not quite warranted.