Legal-Ease: the complexity of the legal system designed to eliminate unfair bias

I spent last weekend with my sister’s family in Columbus. We left for church on Sunday before sunrise. However, in the car, my preschool nephew saw a ray of light and shouted, “See, the sun is really trying to come up!

My nephew’s understanding of the effort of the sun to rise is an understandable mental bias based on his limited knowledge and life experience. However, adults also sometimes unconsciously use certain mental shortcuts, also called cognitive biases or logical errors, to reach conclusions that may not be logically accurate.

Our legal system uses a complex set of procedures and rules (rules of evidence, rules of civil procedure, etc.) to try to eliminate mental biases that could lead to inaccurate conclusions.

There are two main mental shortcuts against which the legal system is particularly vigilant.

First, the system tries to avoid moral equivalence. Moral equivalence consists in treating all inconsistencies with civil or moral law as being identical and necessarily correlative to each other.

For example, a man can cheat on his income taxes. Later, this man can be accused of assaulting his neighbour. The court system prevents the prosecutor from arguing that “this man is cheating on his taxes, which is dishonest, and dishonest people are the type to assault their neighbors.”

However, if this man himself testifies that he did not assault his neighbour, the judicial system could allow the prosecutor to argue that the man’s statement is not credible, because it has been proven that the man is dishonest.

Thus, concern over the argument (the man is dishonest) that might cause the minds of jurors to inappropriately “shortcut” to an unrelated conclusion (the man assaulted his neighbour) is governed by the rules of evidence, which weigh the context of the evidence and allow the judge to use facts and arguments for proper purposes while preventing jurors from drawing conclusions based on moral equivalence.

Second, the law tries to avoid red herrings. Red herrings are discussions, arguments, or facts that don’t directly focus on the exact problem, but rather create distractions that attempt to shortcut to a conclusion.

The legal system focuses on preventing red herrings, although red herrings may play an important role at other times in other contexts. For example, in criminal matters, guilt and sentence are decided separately. In places where guilt and sentence appear to be decided together, jury instructions direct the jury to separate the two important steps.

For example, if guilt and sentence were decided together, a jury might conclude that the accused has about an 80% chance of having committed the crime. Then, with that information, the jury could use the red herring of possible sentencing ranges to simply convict the defendant at 80% of the maximum possible sentence. In this context, sentencing could be a red herring. In America, a person must be convicted separately, before being sentenced.

The complexity of our legal system provides necessary safeguards against mental shortcuts and mental or cognitive biases that can lead to inaccurate and unfair conclusions.

Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agricultural matters in Northwest Ohio. He can be reached at [email protected] or at 419-659-2058. This article is not intended to be used as legal advice, and specific advice should be sought from the licensed attorney of your choice based on the specific facts and circumstances you are facing.

Sharon D. Cole