Justice is (Change) Blind: Applying Research on Visual Metacognition in Legal Settings
23 Psychology, Public Policy, & Law 259 (2017)
70 Pages Posted: 10 Jan 2018 Last revised: 23 Jan 2018
Date Written: May 1, 2017
Research demonstrates that people overestimate their ability to detect visual stimuli in a variety of contexts. These errors in visual metacognition have legal implications, as they may cause decision makers to misweigh evidence and misallocate responsibility. We describe 4 experiments that bridge the gap between lab studies of visual metacognition and 1 relevant legal context: negligence litigation. In the first 2 experiments, we expand on the existing visual metacognition research by demonstrating that participants’ overestimation persists when they are asked what an observer should see and what an observer can be blamed for failing to see. Then, we examine the extent to which participants treat their presumptions that someone should have seen a stimulus like evidence of verified visual detection. Finally, we use vignettes of negligence cases modeled on existing change blindness and inattention blindness research to drive home the potential legal consequence of visual metacognitive errors: defendants may be found negligent for failing to detect stimuli that the ordinary, reasonable person would not have seen.
Keywords: negligence, reasonable person, reasonable man, torts, experimental psychology, attention, vision, change blindness, inattention blindness, metacognition, legal decision making, law and psychology
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