Educating Judges and Lawyers in Behavioral Research: A Case Study

27 Pages Posted: 29 Sep 2017 Last revised: 20 Jul 2018

Date Written: September 29, 2017


The behavioral sciences play a significant role in shaping the law. Yet, despite their importance, many judges and lawyers harbor serious misconceptions about behavioral research. This Article uses a “case study” — a motion hearing in a criminal case — to educate judges and lawyers in several important behavioral-research concepts.

At the motion hearing, the defense lawyer asked the trial judge to modify the pattern jury instruction on the state’s burden of proof. In support of his motion, he cited two behavioral studies. The studies demonstrated that the objectionable part of the pattern instruction — its closing mandate to jurors “not to search for doubt” but “to search for the truth” — lowered the burden of proof below the reasonable-doubt standard. Nonetheless, based on several misconceptions about behavioral research, the judge denied the defense lawyer’s motion.

This Article briefly describes the two behavioral studies cited by the defense lawyer. It then identifies and debunks each of the judge’s criticisms of the studies and discusses confirmation bias as a likely contributor to the judge’s erroneous thinking. The Article then discusses the role of behavioral sciences in legal decision-making and argues that, when change is warranted, judges should not cling to the status quo simply out of “blind imitation of the past.” It then presents a standard framework for assessing the validity of behavioral research, and applies this framework to the two studies that the judge rejected.

Keywords: Behavioral Research, Social Science, Law, Jury Instructions, Burden of Proof

Suggested Citation

Cicchini, Michael D. and White, Lawrence, Educating Judges and Lawyers in Behavioral Research: A Case Study (September 29, 2017). 53 Gonzaga L. Rev. 159 (2017), Available at SSRN:

Lawrence White

Beloit College ( email )

Beloit, WI
United States

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