New Evidence About Circumstantial Evidence

40 Pages Posted: 6 Sep 2016 Last revised: 29 Dec 2016

Eyal Zamir

Hebrew University of Jerusalem - Faculty of Law

Elisha Harlev

Hebrew University of Jerusalem, School of Law, Students

Ilana Ritov

Hebrew University of Jerusalem - School of Education

Date Written: September 6, 2016

Abstract

Judicial fact-finders are commonly instructed to determine the reliability and weight of any evidence, be it direct or circumstantial, without prejudice to the latter. Nonetheless, studies have shown that people are reluctant to impose liability based on circumstantial evidence alone, even when this evidence is more reliable than direct evidence. Proposed explanations for this reluctance have focused on factors such as the statistical nature of some circumstantial evidence and the tendency of fact-finders to assign low subjective probabilities to circumstantial evidence. However, a recent experimental study has demonstrated that even when such factors are controlled for, the disinclination to impose liability based on non-direct evidence — dubbed the anti-inference bias — remains.

The present Article describes seven new experiments that explore the scope and resilience of the anti-inference bias. Intriguingly, it shows that this bias is significantly reduced when legal decision-makers confer benefits, rather than impose liability. In so doing, the Article points to a new legal implication of the psychological phenomenon of loss aversion. In contrast, the Article finds no support for the hypothesis that the reluctance to impose legal liability on the basis of circumstantial evidence correlates with the severity of the legal sanctions. It thus casts doubt on the common belief that sanction severity affects the inclination to impose legal liability. Finally, the Article demonstrates the robustness of the anti-inference bias and its resilience to simple debiasing techniques. These and other findings reported in the Article show that the anti-inference bias reflects primarily normative intuitions, rather than merely epistemological ones, and that it reflects conscious intuitions, rather than wholly unconscious ones. The Article discusses the policy implications of the new findings for procedural and substantive legal norms.

Keywords: anti-inference bias, evidence law, circumstantial evidence, debiasing, loss aversion, judicial decision-making, experimental legal studies

Suggested Citation

Zamir, Eyal and Harlev, Elisha and Ritov, Ilana, New Evidence About Circumstantial Evidence (September 6, 2016). Law & Psychology Review, Forthcoming; Hebrew University of Jerusalem Legal Research Paper No. 16-35. Available at SSRN: https://ssrn.com/abstract=2834707

Eyal Zamir (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus, 91905
Israel
+972 2 582 3845 (Phone)
+972 2 582 9002 (Fax)

Elisha Harlev

Hebrew University of Jerusalem, School of Law, Students ( email )

Jerusalem
Israel

Ilana Ritov

Hebrew University of Jerusalem - School of Education ( email )

Mt. Scopus
Jerusalem, 91905
Israel
+972 2 652 9929 (Phone)

HOME PAGE: http://pluto.huji.ac.il/~msiritov/ilana_ritov.htm

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