Neurolaw

A HUNGRY JUDGE IS A HARSH JUDGE?

od Mózgowiec™

In the legal world, half a joke, half a serious one can hear that the outcome of a court case is the result of what the judge ate for breakfast if at all ate. As if that were not enough, a 2011 study conducted by scientists from Ben Gurion University in Beer Sheva, Israel in collaboration with Columbia University in New York (USA), was to confirm this effect. So what about this breakfast?

The researchers aim to determine whether judicial decisions are also influenced by psychological, political, and social factors. This seems unavoidable. Judges or jurors (depending on the legal system) are ordinary people who make the same mistakes and prejudices as others. They are sometimes sleepy, stressed by personal matters, have their own worldview preferences, or are more or less guided by what we call intuition.

However, it is important that the outcome of court cases depends solely on facts and their rational evaluation, or at least that external factors are minimized. Anyone who has watched a film from a hearing in an American court has probably noticed the place occupied by the witness. While giving testimony, he is exposed to direct eye contact with the audience, which may affect his mental comfort and the content of this testimony. Add to this an attorney leaning over the jury after a ceremonial walk in the courtroom and you have a recipe for what court cases should not look like. It may be exciting in a movie, but in life, it can be harmful.

A SURPRISING EFFECT OF MONOTONY… OR MAYBE HUNGER?

Shai Danziger, Jonathan Levav, and Liora Avnaim-Pesso from the above-mentioned research centers analyzed 1121 decisions of 8 Israeli parole boards serving 4 main prisons in Israel. This corresponded to 40 percent of the cases of such committees in the country. The committees consisted of a judge, a criminologist, and a social worker. The working day consisted of 3 sessions divided by meal breaks.

The researchers noted that at the beginning of each session, the percentage of positive decisions for a convicted person was about 65 % and fell almost to 0 % at the end of the session. After the meal break, the cycle was repeated. The authors of the study suggested that the repetition of judgments favored a tendency to remain status quo, which could be interrupted by a meal.

Percentage of prisoner sentences by order. The marked points indicate the first decision in each of the three decision-making sessions; markers on the x-axis indicate every third case; a dashed line indicates a food break. Since unequal session lengths resulted in a small number of cases for some later order positions, the chart is based on the first 95% of data from each session.

A surprising effect, right? Whether to submit an application for again consideration of the case?

THE DEVIL IS IN THE DETAILS

Such surprising conclusions could not escape the attention of the scientific world and well-known popular science portals. A few months after the publication of the original study, John Shapard (independent) and Keren Weinshall-Margel of the Hebrew University of Jerusalem interviewed three attorneys, a parole judge and five staff members of the Israeli prison service and court leadership to find out that the order of cases was not accidental. First of all, the committee tried to complete all cases from one prison before the break and, after the break, to deal with cases from another. Moreover, during each session, the unrepresented prisoners usually came last. They suggested that the lack of professional legal assistance reduced the probability of obtaining a favorable decision. It is worth noting that lawyers took more time than prisoners without them.

The enriched analysis of the authors of the original study, however, did not provide convincing evidence of the validity of their conclusions and, above all, did not convince the scientific community of such a high impact of the order of cases on the decision, especially the impact of the meals.

As if that were not enough, researchers from the Israeli Institute of Technology analyzed more than 386 thousand decisions made by American immigration courts over 30 years ago and argued that the application, which was later considered during the day, had a better chance of being considered.

CORRELATION IS NOT CAUSALITY

The source of conclusions in the criticized studies was too narrow an analysis, which did not take into account that the order of cases was not accidental. One of the errors in data evaluation is too much faith in correlations that say nothing about causality. Quite a good example is the correlation between the number of films in which Nicolas Cage appeared and the number of drownings in the pool. Does it mean that he shouldn’t play in the movies anymore? Surely there would be a logical explanation for this if such a relationship existed, but we would rather agree that it would be extremely unlikely.

APPARENT EFFECT

Also, a detailed analysis by Andreas Glöckner from the Max Planck Institute in Bonn showed that the apparent effect of the meals was overestimated. However, even without statistical expertise and convincing expert opinions, such staggering research results could be questioned. First of all, the judges, but also the other members of the committee, were generally educated and experienced people. If we assume that this made them more resistant to the effect of mental exhaustion (which is a matter of dispute), other less educated people would hardly be able to make rational choices before eating a meal. Of course, mental exhaustion or the reduction of the brain’s glucose reserves are not conducive to this, but they are not so significant. If in fact, the effect of hunger is as great as the researchers suggested, it would be noticeable in everyday life even without research, and driving without breakfast would be forbidden and the Nobel Prize for those who know how to enforce it.

Sources:

  1. Shai Danziger, Jonathan Levav, and Liora Avnaim-Pesso, Extraneous Factors in Judicial Decisions, PNAS April 26, 2011, 108 (17) 6889-6892; https://doi.org/10.1073/pnas.1018033108
  2. Keren Weinshall-Margel and John Shapard, Overlooked Factors in the Analysis of Parole Decisions, PNAS October 18, 2011, 108 (42) E833; https://doi.org/10.1073/pnas.1110910108
  3. Shai Danziger, Jonathan Levav, and Liora Avnaim-Pesso, Reply to Weinshall-Margel and Shapard: Extraneous Factors in Judicial Decisions Persist, PNAS October 18, 2011, 108 (42) E834; https://doi.org/10.1073/pnas.1112190108
  4. Andreas Glöckner, The Irrational Hungry Judge Effect Revisited: Simulations Reveal That The Magnitude of The Effect is Overestimated, Judgment and Decision Making, Vol. 11, No. 6, November 2016, pp. 601-610; http://journal.sjdm.org/16/16823/jdm16823.html
  5. Plonsky, Ori and Chen, Daniel L. and Netzer, Liat and Steiner, Talya and Feldman, Yuval, Best to Be Last: Serial Position Effects in Legal Decisions in the Field and in the Lab (July 21, 2019). Bar Ilan University Faculty of Law Research Paper No. 19-15; https://ssrn.com/abstract=3414155; http://dx.doi.org/10.2139/ssrn.3414155