The Last Word in Court--A Hidden Disadvantage for the Defense.

Abstract

In the legal systems of most western countries, defense attorneys present their sentencing recommendation after the prosecution has presented its sentencing demands. This procedural sequence for criminal cases is intended to balance the impact of both parties on the judge's final decision. Especially the positioning of the defense's plea at the end of the trial follows the fundamental legal principle "in dubio pro reo." Research on judgmental anchoring, however, suggests that the standard procedural sequence may in fact work against this principle. Consistent with this implication, the present studies demonstrate that the defense's sentencing recommendation is anchored on, and consequently assimilated toward, the preceding recommendation by the prosecution. This influence prevents the defense attorney from effectively counterbalancing the prosecutor's demand. Instead, the biased defense attorney's recommendation partially mediates the impact of the prosecutor's demand on the judge's decision. These findings suggest that the standard procedural sequence in court may place the defense at a distinct disadvantage.

Let My People Go: Ethnic In‐Group Bias in Judicial Decisions—Evidence from a Randomized Natural Experiment

“…In fact, it is likely that prosecutors have a more direct impact on racial disparities than do judges (Humphrey & Fogarty 1987;Davis 1998). Their sentencing recommendations have a substantial impact (Englich & Mussweiler 2001;Englich et al 2005;Kremnitzer & Hassin 1993) but, even more importantly, prosecutors have direct control over the outcome through plea bargaining, which is the method of disposition in the vast majority of cases. If prosecutors are offering white defendants more lenient plea bargains than nonwhites, the sentence disparity should be attributed to prosecutors, rather than to courts (Humphrey & Fogarty 1987).…”

Anchoring: A Valid Explanation for Biased Forecasts When Rational Predictions are Easily Accessible and Well Incentivized?

“…The aspects tested are diverse and range from factual knowledge (Blankenship et al 2008;Wegener et al 2001) to probability calculations (Chapman and Johnson 1999) to price estimations after monetary reforms (Amado et al 2007). Task-specific expertise is shown to be irrelevant for the anchoring bias, as in Englich and Soder (2009), for a juridical context supporting the assumption that forecasting experts are susceptible to anchor heuristics. Overall, the influence of the anchoring heuristic proved to be "exceptionally robust, pervasive and ubiquitous" (Furnham and Boo 2011, p. 41) regarding experimental variations.…”

“…As the task is repeated and feedback is given in the treatment groups, learning effects are fostered. However, studies on experts in a judicial context (Englich et al 2005;Englich and Soder 2009) and in time series forecasting (Harvey et al 1994;Harvey and Fisher 2005) suggest that anchoring is independent of participants' prior knowledge or learning effects. Accordingly, we formulate Hypothesis 4:…”

Relevant information, personality traits and anchoring effect

“…Significant results of affective factors on anchoring effects have been found (Bodenhausen et al, 2000;Englich and Soder, 2009). In addition, previous researches have provided empirical evidence demonstrating that decisions by expert participants in the judgmental domains also show an anchoring effect (Enough and Mussweiler, 2001;Englich et al, 2005Englich et al, , 2006Mussweiler et al, 2000;Northcraft and Neale, 1987). These results imply that expertise does not significantly reduce the assimilative bias in decisions that affect inexperienced laypeople (Furnham and Boo, 2011).…”