A Third View of the Black Box: Cognitive Coherence in Legal Decision Making

Abstract:     
This Article presents a novel body of research in cognitive psychology called coherence-based reasoning, which has thus far been published in journals of experimental psychology. This cognitive approach challenges the stalemated conflict between the Rationalist and Critical models of decision making that have dominated legal scholarship for over a century. The experimental findings demonstrate that many legal decisions fit into neither of these models. Based on a connectionist cognitive architecture, coherence-based reasoning shows that the decision-making process progresses bi-directionally: premises and facts both determine conclusions and are affected by them in return. A natural result of this cognitive process is a skewing of the premises and facts toward inflated support for the chosen decision. The Article applies this research to four important aspects of the trial. It argues that the current doctrine in these areas is based on misconceptions about human cognition, which lead to systematic legal errors. By identifying the cognitive phenomena that lie at the root of these failings, the research makes it possible to devise interventions and introduce procedures that reduce the risk of trial error.

Number of Pages in PDF File: 77

Accepted Paper Series