Complex litigation tends to get framed as a problem for the jury system, but it is more properly viewed as a problem for any fact finder—juror, judge, arbitrator, expert panel—and for the litigants and their attorneys.
Still, the jury framing is useful because it brings into focus some of the resources a fact finder needs to tackle the problem: attention, memory storage and retrieval, education and training, and life experience. In these respects, groups are advantaged over individuals, and experts are advantaged over nonexperts. Since judges have greater average expertise but juries act as groups, it is difficult to identify a net advantage either way. And, of course, accuracy is only one criterion by which we evaluate legal judgment; a full assessment requires considerations of efficiency, fairness, legitimacy, and community representation.
研究复杂诉讼主题的任务概括了问题的关键特征。复杂的诉讼产生了庞大而艰巨的多维搜索空间,但法律事实发现者和陪审团研究人员都试图从该空间的孤立地区的零碎瞥见中提出推论。结果,法律事实发现者和陪审团的研究人员将稀疏数据与推断相结合,这些数据超出了给出的数据。理论在社会研究中始终很重要,但是对于这个话题,如果我们说很多话,这一点至关重要。
This research paper presents a theoretical framework for evaluating expertise and collective decision making and describes the research done in this area. It also examines the types of complexity with respect to the number of parties and issues in a dispute and the amount and complexity of the evidence presented in the trial.
Theoretical Issues
Expertise
The typical jury is obviously far less expert than the judge in one key respect—expertise on the law as it pertains to the case. But because juries do not provide a rationale for their verdict, we only rarely know that a jury has made a “mistake” on the law, and juries may not feel particularly hindered by their lack of legal expertise. What may matter far more is expertise with respect to the technical issues that may arise at the trial, involving the economic analysis of market power, the engineering of heavy machinery, the etiology of a disease, or the epidemiology of toxic exposure. Here, judges may outperform the average juror; judges are above average in education and intelligence, and they may have relevant experience from past trials. But we shouldn’t overestimate either intelligence or experience. Studies of expertise show that it can take a decade or more of concerted effort to develop true mastery of a technical skill. Graduate students are highly intelligent and still struggle for months to successfully complete their more technical graduate courses. And today’s judges are likely to have far less actual trial experience than their predecessors of earlier generations. As a sample of the community, the jury may collectively have more relevant expertise in nonlegal issues than the relevant judge.
Groups as Information Processors
In the 1950s, Irving Lorge and Herbert Solomon deduced that, ceteris paribus, groups are better situated than their individual members to find correct answers. If p is the probability that any given individual will find the “correct” answer, then the predicted probability P that a collectivity of size r will find the answer is P = 1 – (1 – p)r. More recently, Lu Hong and Scott Page have derived theorems proving that cognitively diverse groups—defined with respect to the perspectives and schemas they use to tackle a problem—can outperform even their best members. But this model, like that of Lorge and Solomon, proves group competence, not group performance. Empirically, we know that performance often falls short of competence.
两种模型都取决于关键的前提:如果至少一个成员找到答案,它将被接受为集体解决方案 - 简而言之,“真相获胜”。仅当组成员识别解决方案后的“正确性”时,才会发生这种情况。不幸的是,这个假设有两个问题。首先,Garold Stasser和他的合作者表明,并非所有相关事实都得到了表达。小组讨论倾向于集中于共享而不是未共享信息。其次,即使表达了正确的答案,也不总是会这样识别。充其量,“真理支持的胜利”至少需要一些社会支持才能获得势头,这表明寻求真理是一个社会和智力过程。但是,即使是某些任务也会发生这种情况。这样的任务似乎是识别记忆。研究表明,小组在内存任务上的表现优于其成员。 But for more complex inferential tasks, members need a shared conceptual scheme for identifying and verifying solutions. When they lack such a scheme, the more typical influence pattern is majority amplification, in which a majority faction’s influence is disproportionate to its size, irrespective of the truth value of its position. In other words, strength in numbers trumps strength in arguments.
从理论上讲,集体决策(或单个判断的统计汇总)非常适合减少单个判断的随机错误。但是偏见是另一个故事。偏见可以由内容产生(诸如种族和性别之类的诸如种族和性别之类的外部因素)或过程中,例如陪审员依靠可用性启发性启发性(过度加权最容易对头脑造成的事情),这是一种锚定的启发式启发式(不足以调整)从任意起始价值,确认性偏见或事后偏见。Norbert Kerr,Robert Maccoun和Geoffrey Kramer的分析表明,在各种情况下,集体决策将扩大个人偏见而不是减弱。当“数量的强度”时,集体将倾向于扩大个体偏见,因此大派系的影响与其规模不成比例,就像在“多数规则”制度中明确发生,而当手头的案件“近距离”时而不是偏斜。一个案件可能是有几个原因而关闭的,每个案件可能对事实发现者构成不同的挑战。事实可能是模棱两可和模糊的;它们可以很清楚,但可能相互矛盾。 or they can seem clear to each perceiver, but the perceivers may disagree on which side the “clear” facts support. The latter is particularly likely in an adversarial setting, where jury factions may form favoring each side of a dispute.
定义复杂性
1987年,罗伯特·麦克(Robert Maccoun)假定了三个基本复杂性的初步分类法:争议复杂性(争议中的政党数量和问题数量),证据复杂性(证据的数量,一致性和技术内容)以及决策复杂性(法律的复杂性以及提出判决所需的推论步骤和联系的复杂性)。在1990年代,Heuer和Penrod在对160项刑事和民事审判的现场研究中进行了首次对试验复杂性的系统统计分析。要求法官对各种属性进行评分。因素分析表明三个基本维度,大致重叠了Maccoun的类别:证据复杂性,法律复杂性和试验中提供的信息数量。与较早的工作一样,发现法官的复杂性评级与陪审团协议率无关。
两种分析都将数量视为事实发现者的问题。反思,这不一定遵循。大型试验在长期内延长。能够跟踪肥皂剧的情节复杂性的公民,例如我所有的孩子或NBA的团队阵容,显然有资源来跟踪大量的事实数据。确实,归纳推理通常使用其他数据变得更容易,而不是更难。可能更重要的是证据的内部结构 - 矛盾和偶然性和相互依赖性。
证据复杂性
We know very little about evidence complexity in the trial context, but there are much larger bodies of research on deductive and inductive inference in non-legal tasks. In approaching this literature, it is useful to keep two distinctions in mind. One is between the two criteria for validity: correspondence versus coherence. Correspondence considers whether our inferences match the empirical facts; coherence considers whether our inferences “hang together” in a manner consistent with the normative standards of deductive logic, Bayesian updating, and the like. The second distinction is between competence and performance. Competence describes what we are capable of achieving; performance describes what we actually achieve. A disproportionate amount of work has been done in the “coherence/performance” cell. We know that people routinely violate normative inference standards for even fairly simple tasks, and they do so systematically rather than randomly, through the use of heuristics. But various lines of evidence from the other three cells suggest that people—and honeybees, birds, and other organisms—are competent to perform inferences of remarkable complexity and sophistication in some settings. This work suggests that competence may exceed the performance we often observe and that the structure and sampling of evidence (and the match of data to our specific competencies) may be what closes that gap. So the applied challenge is to discover ways of restructuring fact-finding procedures to bring performance closer to competence.
David Schum (using a Bayesian perspective) and Nancy Pennington and Reid Hastie (using narrative schemas or “stories”) have done much to elucidate how the internal structure of evidence gets cognitively represented and analyzed by fact finders. (Much of this work has been collected in Hastie’s edited volume Inside the Juror.) Schum’s work shows that people can sometimes perform better when tackling small, piecemeal inferences rather than larger, more global inferences. Pennington and Hastie show how the temporal ordering of evidence at trial can facilitate (or interfere with) fact finders’ ability to form coherent narratives. Unfortunately, the adversarial setting poses difficulties very different from those one might encounter when mastering skills such as reading or learning to use a computer program. Evidence structures aren’t neutral; some favor one litigant at the expense of another. Indeed, lawyers with weak cases may even seek to undermine clarity.
Highly technical evidence involving statistics, chemistry, engineering, or economics poses additional problems. The amount of time experts spend in explaining highly technical concepts at trial falls well short of the time one spends learning in a semester-long course (without prerequisites!), though it still greatly exceeds what we can usually simulate in a mock jury experiment. Nevertheless, it seems likely that fact finders rely heavily on heuristic cues (“lots of charts,” “sure looked smart”) to compensate for their limited understanding of the material. Thus, Joel Cooper and his colleagues found that jurors were influenced by the content of expert testimony on the medical effects of polychlorobiphenyls (PCBs) when it was relatively simple but relied on the witness’s credentials when the testimony was complex.
争议复杂性
Much of what we know about how juries handle dispute complexity comes from an important program of research by Irwin Horowitz and his collaborators. They found that mock jury verdicts are systematically influenced by the size and configuration of the plaintiff population. Aggregating multiple plaintiffs into a single trial appears to increase the likelihood that the defendant will be found liable, but each plaintiff’s award may be smaller than in a consolidated trial. There are similar trade-offs involved in trying all the issues together versus bifurcating (or trifurcating) the trial into segments addressing causation and liability versus compensatory versus punitive damages—unitary trials may increase liability but lower damages. These effects are not neutral with respect to the parties, but bifurcation may be justified on procedural grounds because it appears to improve the quality of the decision process.
Conclusions
如果法官在复杂案件中明显优于法律事实发现者,我们将面临困境。但是我们没有。理论和研究都没有表明法官在复杂案件中优于陪审团。可以肯定地说,两者都需要所有认知帮助,我们可以给他们应对日益复杂的世界。
Research on complexity suggests that jurors may be better able to cope with complexity if they are encouraged to use the same strategies used by students who take notes and ask questions in class. Although the cognitive advantages of treating fact finders like active information processors may seem obvious, some attorneys and judges are reluctant to cede control over the case, in whatever small measure. But research shows that while these innovations help only modestly, they also do little or no observable harm.
References:
- Cooper, J., Bennett, E. A., & Sukel, H. L. (1996). Complex scientific testimony: How do jurors make decisions? Law & Human Behavior, 20, 379-394.
- ForsterLee, L., Horowitz, I. A., & Bourgeois, M. (1994). Effects of note-taking on verdicts and evidence processing in a civil trial. Law & Human Behavior, 18, 567-578.
- Hastie, R. (Ed.). (1993). Inside the juror. Cambridge, UK: Cambridge University Press.
- Heuer, L., & Penrod, S. (1994). Trial complexity: A field investigation of its meaning and its effects. Law & Human Behavior, 18, 29-51.
- Horowitz,I。和Bordens,K。S.(2002)。陪审团规模,证据复杂性和注释对陪审团程序和绩效的影响。应用心理学杂志,87,121-130。
- Kerr,N.,Maccoun,R。J.,&Kramer,G。(1996)。判断的偏见:比较个人和群体。心理评论,103,687-719。
- Lempert, R. O. (1981). Civil juries and complex cases: Let’s not rush to judgment. Michigan Law Review, 80, 68-132.
- Maccoun,R。J.(1987)。进入黑匣子:更好地理解民事陪审团的行为。加利福尼亚州圣莫尼卡:兰德。
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