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Self-correction of wrongful convictions: is there a ‘System-level’ confirmation bias in the Swedish legal system’s appeal procedure for criminal cases?—Part I
Uppsala University, Disciplinary Domain of Humanities and Social Sciences, Faculty of Law, Department of Law.ORCID iD: 0000-0002-3811-7517
Uppsala University, Disciplinary Domain of Humanities and Social Sciences, Faculty of Law, Department of Law.
Uppsala University, Disciplinary Domain of Humanities and Social Sciences, Faculty of Social Sciences, Department of Psychology.
2018 (English)In: Law, Probability and Risk, ISSN 1470-8396, E-ISSN 1470-840X, Vol. 17, no 4, p. 311-336Article in journal (Refereed) Published
Abstract [en]

In this study, we propose that confirmation bias may not only be present in the behaviors of individual agents in the judicial system but can also be recognized at a system-level as an inability to self-correct, that is, an inability to acquit wrongfully convicted who appeal or petition for a new trial. To assess the self-correctional ability a very low error rate of wrongful convictions in the District Courts in 2010-2014 was tentatively assumed. An empirical review of appeals (Part I) and petitions for new trials (Part II) in the Courts of Appeal and Supreme Court between 2010 and 2014 was carried out to evaluate to what extent these legal remedies can be expected to change wrongful convictions into acquittals. Realistic assumptions and empirical estimates of real-world statistics suggest that at least 34.67 % of the wrongfully convicted remained convicted despite the possibility both to appeal and petition for a new trial. A robustness analysis was performed to ascertain that the conclusions hold under a wide variety of assumptions about the unknown statistics. According to additional analyses the odds of an acquittal were low even for appeals referring to new innocence supportive evidence and for private individuals claiming to be innocent of e.g. assault or murder the odds of being granted new criminal trials were particularly low.

Place, publisher, year, edition, pages
2018. Vol. 17, no 4, p. 311-336
Keywords [en]
confirmation bias, wrongful conviction, appeal, new trial, legal system, organization
National Category
Law and Society Psychology
Research subject
Jurisprudence
Identifiers
URN: urn:nbn:se:uu:diva-351677DOI: 10.1093/lpr/mgy018ISI: 000456537600003OAI: oai:DiVA.org:uu-351677DiVA, id: diva2:1237553
Available from: 2018-08-09 Created: 2018-08-09 Last updated: 2019-02-18Bibliographically approved
In thesis
1. Confirmation Bias in Criminal Cases
Open this publication in new window or tab >>Confirmation Bias in Criminal Cases
2018 (English)Doctoral thesis, comprehensive summary (Other academic)
Abstract [en]

Confirmation bias is a tendency to selectively search for and emphasize information that is consistent with a preferred hypothesis, whereas opposing information is ignored or downgraded. This thesis examines the role of confirmation bias in criminal cases, primarily focusing on the Swedish legal setting. It also examines possible debiasing techniques.

Experimental studies with Swedish police officers, prosecutors and judges (Study I-III) and an archive study of appeals and petitions for new trials (Study IV) were conducted. The results suggest that confirmation bias is at play to varying degrees at different stages of the criminal procedure. Also, the explanations and possible ways to prevent the bias seem to vary for these different stages. In Study I police officers’ more guilt presumptive questions to apprehended than non-apprehended suspects indicate a confirmation bias. This seems primarily driven by cognitive factors and reducing cognitive load is therefore a possible debiasing technique. In Study II prosecutors did not display confirmation bias before but only after the decision to press charges, as they then were less likely to consider additional investigation necessary and suggested more guilt confirming investigation. The driving forces need further examination. Study III suggests that pretrial detentions influence judges’ perception of the evidence strength, making them more likely to convict, in cases where they themselves detained. This is indicative of a confirmation bias with social explanations, which, possibly, can be mitigated by changing decision maker between detention and main hearing. The confirmatory reasoning in Study I-III can be considered rational or irrational, following different types of rationality, like probabilistic or judicial rationality. In Study IV, statistical estimates based on empirical data from the Apellate Courts and the Supreme Court indicate that far from all wrongfully convicted who appeal or petition for a new trial are acquitted. A robustness analysis confirmed that these overall conclusions hold over a wide variety of assumptions regarding unknown parameters.                         

Also, the usage of empirical methods to study law and legal phenomena is discussed. The concept of Evidence-Based Law (EBL) is used to exemplify how empirical legal research may benefit both legal scholarship and law in a wider sense.

Place, publisher, year, edition, pages
Uppsala: Department of Law, Uppsala University, 2018. p. 284
Keywords
legal decision making, bias, confirmation bias, criminal cases, criminal procedure, police, prosecutor, judge, legal system, empirical legal research, evidence based law, debiasing technique
National Category
Law and Society Applied Psychology
Research subject
Jurisprudence
Identifiers
urn:nbn:se:uu:diva-351709 (URN)978-91-506-2720-6 (ISBN)
Public defence
2018-09-28, Sal IV, Universitetshuset, Biskopsgatan 3, 753 10 Uppsala, Uppsala, 10:15 (English)
Opponent
Supervisors
Available from: 2018-09-05 Created: 2018-08-10 Last updated: 2018-09-05

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Lidén, MoaGräns, MinnaJuslin, Peter

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