Evidence, Procedure, and the Upside of Cognitive Error

Abstract:     
Humans are imperfect information processors, a fact almost universally bemoaned in legal scholarship. But when it comes to how the legal system itself processes information, cognitive limitations are largely good news. Evidentiary procedure - inclusive of trial, discovery, and investigation - relies heavily on the fact that human mental capacity is limited. Such limits are crucial to separating sincere from insincere testimony. Moreover, notes and other "cognitive artifacts" that individuals make to compensate for their limited cognitive ability are an important source of evidence. This article's primary objective is to elucidate the extent to which cognitive imperfection is beneficial rather than detrimental to evidentiary process and thus to law as a whole. Secondarily, the article discusses how the law of evidentiary process tilts the playing field of litigation in a manner that exacerbates the cognitive limitations of the potentially insincere and offsets the limitations of competing participants.

Keywords: Evidence, Procedure, Cognitive Error, Cognitive Biases and Illusions, Cross Examination, Witness Preparation, Real Evidence, Eyewitness Memory

Accepted Paper Series