Heuristics and Decision Making in Criminal Justice System

October 2, 2023 Don Pumphrey, Jr. Criminal Defense Social Share

Decision making is an important aspect of our society. Each day we are faced with varying degrees of choices, and we must use our knowledge and intuition to make informed decisions. This is also true in the field of criminal justice; however, those who work in the field of criminal justice are often held to a higher standard for their decision making due to the importance of implementing justice.

We recently did an interview with Dr. Roy Bedard, referred to as the “World’s Policeman” by U.S. Commercial Services. Dr. Bedard has spent nearly three decades traveling the nation to provide his training and expertise to various law enforcement and military offices. In addition to his reputation as trainer and project management specialist, Dr. Bedard is considered a subject matter expert by the Florida Department of Law Enforcement (FDLE).   

Our conversation with Dr. Bedard marks the first in a series focused on factors that can potentially affect criminal investigations. For this blog post, we will provide information and insight on heuristics and decision making, and how they can impact an investigation for a criminal offense.   

What are Heuristics?

Heuristic is a word derived from the Greek term heuriskein, which means “to discover.”

The American Psychological Association (APA) defines heuristics as the “rules-of-thumb” that are applied to help guide a person’s decision making based on the available information.

Two examples given by the APA are:

• How individual decides which cereal to buy from the grocery store.
• How an individual responds to a stray cat that runs into the road while that individual is driving.

In the first scenario of buying cereal, there is no time crunch to pressure the person into a decision. Instead, they can take the time to compare and weigh all possible factors such as the cost, nutritional value, and taste. In the second scenario, an animal running onto the road while someone is driving requires a much more rapid response. However, in making such a quick decision, the person may not consider other factors such as the condition of the road, the locations of other cars on the road, or the existence of pedestrians walking nearby.

In terms of cognitive psychology, heuristics is the process of intuitive judgment. When an individual is operating under uncertain conditions, the heuristic response is one that is rapidly produced to generate an adequate, though not optimal, decision, solution, prediction, or inference. In other words, it is considered the “good enough” option.

Two of the most influential researchers on heuristics are Daniel Kahneman and Amos Tversky, who challenged the traditional model of rational choice and identified the various biases that can result in the three main heuristics: representativeness, availability, and anchoring and adjustment.

Three Main Heuristics

In Kahneman and Tversky’s Judgement Under Uncertainty: Heuristics and Biases, the researchers break down the three types of heuristic and its purpose of reducing the individual’s mental effort required for decision making:

• Representativeness heuristic – Refers to the mental shortcut for making probability judgements by classifying events into different categories. Kahneman and Tversky explained that when using the representativeness heuristic, people make probability judgements on the likelihood that an event or object has arisen from a category based on the extent to which such event or object is like the typical example from that same category. In other words, it is the biased judgements that are made in day-to-day life. Example: Older generation sees a person with tattoos and assumes they are criminals and have no job, when it is not necessarily the case. In terms of criminal law, an example would be if police are looking for the suspect of a crime and only focus on disproportionately Black neighborhoods.
• Availability heuristic – Refers to the mental shortcut created for making frequency or probability judgements based on “the ease with which instances or occurrences can be brought to mind.” The following is the example used in the text: Kahneman and Tversky asked participants if they believed the English language had more words beginning with the letter “K” rather than words where the letter “K” was placed third in the word. More of the participants responded with their belief that more words began with the letter “K,” however the answer was the latter. It is an availability heuristic because the participants have memories of words that begin with a “K” that come to mind faster and more readily than words that contain a “K” as the third letter.
• Anchoring and Adjustment heuristic – Refers to people getting stuck or “anchoring” themselves on an initial thought or value of something, then adjusting the value to make a conscious decision around the anchor. When people are asked to estimate something, they provide the initial value, then will likely adjust it higher or lower than the original estimation. However, most people tend to get stuck on the initial value which then creates a bias in favor of that initial value. A 2006 study claimed that anchoring occurs because the information we have anchored on is more familiar and accessible in our brains than the new information we are provided.

How Do Heuristics Affect our Mental Systems?

Kahneman released his later work Thinking, Fast and Slow in 2011 to address the two parallel operating mental systems we use for thinking, problem solving, and decision making.

According to Kahneman, when our minds are in System 1, our thinking relies on the unconscious processing of general observations to come to an automatic conclusion. In other words, this is fast thinking that does not require much thought. System 1 thinking may be used in scenarios where the person finds the decision to be less important or interesting.

When our minds are in System 2, our thinking is much slower and requires more effort to draw conclusions based on evaluations of evidence. System 2 is usually more insightful and is employed by a deeper question. System 2 thinking may used in scenarios for making judgements or decisions that are compelling or consequential.

Heuristics in Criminal Law

According to a study on Heuristic Decision Making by Elke Kurz-Milcke and Gerd Gigerenzer, “[r]esearch on judgment and decision making is troubled by a conflict between how people actually make decisions and how it is thought they should make them.”

While extensive studies and research on heuristic decision making have been produced over the years, the concept is much more complicated when applied to certain scenarios, specifically the field of criminal justice. Law enforcement and investigators are often held to a higher standard than regular civilians due to their responsibility to enforce law and order. However, applying the theory of heuristics to these fields can highlight the complexities and how they change the understanding of what is correct. 

Dr. Bedard explained to us that, for police officers or investigators, an error in heuristics can result in making conclusions based upon biases. Further, he addressed the theory of Ockham’s razor: “Entities are not to be multiplied beyond necessity,” or “keep it simple.” In summary, this approach means that the simplest explanation is preferable over the more complex explanation. In the same light, it means simple solutions are the easier ones to execute. What does this mean in the context of criminal law?

A complex criminal investigation where investigators are working off System 1 heuristics has the potential to cause confirmation bias. Confirmation bias is the tendency of individuals to process information based on information that is consistent with their prior beliefs. Confirmation bias may not be intentional—it could be because humans are susceptible to such biases as a mechanism to process the large portions of information we receive. It is nearly impossible to carefully take in and process everything we see and hear to form unbiased opinions. However, confirmation bias can have conflicting results in criminal cases.

For example, an attorney who gives a powerful opening statement may help sway the jury later by using confirmation bias to “bolster the persuasive power of the evidence they introduce.” On the other hand, an attorney who must sway a jury who already seems to support the position presented by opposing counsel may have difficulty overcoming their confirmation bias.

Eyewitness testimonies can also result in confirmation bias. It is not very common for a witness to see a crime in its entirety from start to finish. That means when giving their witness statement, they should only provide information for what they did witness. However, it is not uncommon for witnesses to attempt to incorporate or explain parts of the crime they did not see once they’ve heard other descriptions of it.

An example includes the high-profile Trayvon Martin trial in Florida. George Zimmerman was accused of killing Martin after he spotted the teen in a dark hoodie walking alone at night. Zimmerman claimed he acted in self-defense when he shot Martin. However, one could argue that seeing a Black teenager in a hoodie at night and assuming they are suspicious or dangerous could be seen as a representativeness heuristic within itself.

During the trial, there were several eyewitnesses who seemingly changed their statements of their version of the incident. The changes appeared to be more damaging to Zimmerman’s claim of self-defense once the eyewitnesses were presented with the rest of the story. Although Zimmerman was cleared of all charges relating to Martin’s death, this serves as an example of witnesses who could be deemed as unreliable due to confirmation bias.

Inculpatory vs exculpatory evidence

Britannica claims that, “in the context of decision making, once an individual makes a decision, they will look for information that supports it.” During a criminal prosecution, investigators will search for evidence that supports their theory of the crime committed. Evidence in a criminal case is broken down into two categories: inculpatory and exculpatory evidence.

Inculpatory evidence is the evidence that tends to incriminate the defendant or indicate their guilt. In other words, it is the evidence to prove a suspect committed the crime.

Exculpatory evidence is the evidence that tends to exonerate the defendant or help establish their innocence. In other words, it is the evidence to prove a suspect did not commit the crime.

In a criminal investigation, it is essential to a fair trial for prosecutors to notify and disclose the defendant and their defense attorney of any inculpatory evidence, as well as providing access to exculpatory evidence. In Brady v. Maryland, the Supreme Court ruled due process requires that all criminal defendants be provided with any evidence prosecutors found that may be favorable to the defendant. Failure to do so can result in the defendant’s entitlement to a new trial.

Dr. Bedard addressed how investigators should focus on the inculpatory evidence rather than the exculpatory evidence, although that is not always the case. Further, when there is a lack of exculpatory evidence in a criminal case, it can result in more defendants accepting plea deals. While this may be a much better outcome rather than the original charges and sentencing, it can result in innocent people getting coerced into guilty pleas.

According to a report from the American Bar Association, around 98% of criminal cases end in plea deals. When a criminal case ends in a plea deal, it becomes accepted that the defendant will take a sentence for a crime even if it is one they did not commit. However, it potentially becomes the best or only option, which can include “the prospect of decades-long mandatory minimum sentences.”

Contact Pumphrey Law Firm Today

Pumphrey Law Firm is a criminal defense office that specializes in defending those who have been accused of a crime in Tallahassee or the surrounding North Florida areas. Our defense attorneys are knowledgeable and experienced regarding Florida’s legal landscape and can provide our guidance to help you get the charges against you dropped or dismissed.

If you or a loved one has been accused of a crime, contact our office today. Pumphrey Law provides free case evaluations when you call (850) 681-7777 or leave us an online message.

Written by Karissa Key

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