Implications For the General Structure of the Legal System

It is not a jest on my part to begin this chapter by describing a party game. The target person must solve a task about numbers. There are so many persons in a bus. The bus stops at the next stop. So many persons get off and so many get on. The bus starts and stops at the next stop. Etc. The target person will add and subtract passengers. Finally comes the unexpected question: "How many times did the bus stop"

If you did not know in advance that you should pay attention to the number of stops and not to the number of passengers, you will almost certainly miss the relevant information.

The task associated with legal proceedings is enormously more complex than this party game. There are not merely two variables, but hundreds of them. Many variables, and particularly the relevant ones, will only be present intermittently. They will emerge at unexpected moments and in unexpected contexts. And at the time when a certain circumstance appears, it cannot be assumed that a judge or a juror will be able to assess whether it is significant. If they wrongly deem it to lack importance when it appears, the probability is high that they will forget it.

Legal theories of evidence evaluation usually take for granted that the only kind of combination that is needed for a judge or a juror, is weighing together of evidence. But this is a serious error. Two pieces of evidence, both of which have very weak evidential power, may in combination have very strong evidential power.

Attentive readers will almost certainly admit the importance of my four cardinal results. But then my analyses must give rise to some general questions. Do judges and jurors have a fair chance of disclosing such internal relations in the body of evidence

This question is not restricted to the legal system in Sweden. It should be asked in every country.

It is an indisputable fact that none of the 27 judges who passed verdicts in the Elvira case, detected the second and third result. And it is known for certain that none of the 5 judges who made up the team of the fifth trial detected the first cardinal result.

But I feel myself unable to imagine that a trial could be fair, if those who are responsible for the verdict are not capable of detecting such internal relations within the body of evidence.

A second question is even more pertinent, and this is a question that should also be asked in every country. Is the structure of legal proceedings well adapted to the cognitive equipment of human beings

As far as I have been able to gather, no one has previously noted this problem. But its importance cannot be denied. Much research by a great number of scientists is needed before we will learn how an adequate legal system should be constructed. I have pointed out the existence and significance of the problem of the relation to the cognitive equipment, so that others may take care of it.

A large amount of well-founded results have been obtained within the research on cognition and decision-making, which have a bearing on the way judges in trials and civil suits function. But when psychologists study the actual function of judges it seems to me that they are reluctant to select such topics or methods that could lead to results that are not favourable to the judges themselves.

This impression cannot be generalised. Thus, James Shanteau (1995) gave some judges descriptions of legal cases on two consecutive days and asked them to state what they would do. Unknown to the judges some of the cases were the same on both days. It turned out that the judges could not arrive at the same decision on the basis of the very same body of facts, on two consecutive days, in more than 50 % of the cases.

One aspect of this experiment should be paradigmatic. Shanteau was not afraid of obtaining unfavourable results.

Using empirical analysis of real legal cases as the point of departure, Scharnberg (1996, vol. II, chap. 94-97, 112-122) attempted to extract a set of rules that judges actually use when in evidence evaluation. This is one more approach that is not often applied.



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Uppdaterad: 2009-11-19

Yakida