Social Psychology, Information Processing, and Plea Bargaining
21 Pages Posted: 18 Jun 2012
Date Written: June 14, 2012
In this essay, I offer new arguments about why the rational actor paradigm in plea bargaining may not capture the reality of negotiation between prosecutor and defense counsel, and why lawyers may not be likely to lessen the effects of cognitive bias and heuristics. As others have acknowledged, cognitive biases and heuristics that interfere with accurate information processing are one threat to a rational economic model of plea bargaining. But modern psychology has recognized that cognitive biases and heuristics do not exist in a vacuum and are not the only systematic predictors of how individuals process information. Rather than suggesting that certain factors act as an impediment to rational decision making, the social psychological approach seeks to explain perception and decision making as a function of myriad individual and social factors.
This essay begins to explore psychological research on how motivation and the effects of social factors can affect information processing to shed light on such processing in the plea bargaining setting. In particular, I consider the effects of two factors, epistemic motivation and group identity and membership, on information processing as it may relate to plea negotiation. I begin by briefly reviewing the literature on how cognitive bias may affect plea bargaining. I then explore how epistemic motivation and group identity and membership affect information processing and the use of biases and heuristics more broadly, looking particularly at potential effects in the plea bargaining setting.
Keywords: plea bargaining, rational actor, cognitive bias, epistemic motivation, group identity, law and psychology
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