University of Chicago Law Review

Spring 2004

**Article**

**\*511** A THIRD VIEW OF THE BLACK BOX: COGNITIVE COHERENCE IN LEGAL
DECISION

MAKING

Dan Simon [[\[FNd1\]](#Document1zzFN_Fd1)]{.underline}

Copyright © 2004 University of Chicago; Dan Simon

This Article presents a novel body of research in cognitive psychology
called coherence-based reasoning, which has thus far been published in
journals of experimental psychology. This cognitive approach challenges
the stalemated conflict between the Rationalist and Critical models of
decision making that have dominated legal scholarship for over a
century. The experimental findings demonstrate that many legal decisions
fit into neither of these models. Based on a connectionist cognitive
architecture, coherence-based reasoning shows that the decision-making
process progresses bidirectionally: premises and facts both determine
conclusions and are affected by them in return. A natural result of this
cognitive process is a skewing of the premises and facts toward inflated
support for the chosen decision. The Article applies this research to
four important aspects of the trial. It argues that the current doctrine
in these areas is based on misconceptions about human cognition, which
lead to systematic legal errors. By identifying the cognitive phenomena
that lie at the root of these failings, the research makes it possible
to devise interventions and introduce procedures that reduce the risk of
trial error.

Introduction

How do judges and jurors decide cases? Though obviously central to the
law, the mental processes for making decisions remain an opaque feature
at the heart of legal discourse. For more than a century, views of the
process have clustered around two ideal types. One rests on the
assumption that legal decisions are the product of rational
decision-making processes. According to this \"Rationalist\" view, legal
decisions emanate naturally from prescribed forms of logical inference,
namely deductions, inductions, and analogies. Critics, on the other
hand, question the veracity of this account and portray the
decision-**\*512** making process as fundamentally inconsistent with
these logical forms of inference. This alternative position, associated
with Oliver Wendell Holmes, Jr. and the Legal Realists, contends that
\"the life of the law\" is based not on logic, but rather that \"the
felt necessities of the time,\" avowed and unconscious intuitions of
public policy, and even judicial prejudices have more to do with legal
decisions than the formal axioms of logical inference.
[[\[FN1\]](#Document1zzFN_F1)]{.underline}

Few participants in contemporary legal discourse abide explicitly by
either the Rationalist or the Critical conception of decision making.
[[\[FN2\]](#Document1zzFN_F2)]{.underline} In practice, however, these
conceptions continue to pervade the discourse. Numerous legal practices
and institutions are based on Rationalist assumptions,
[[\[FN3\]](#Document1zzFN_F3)]{.underline} and are criticized in those
terms. [[\[FN4\]](#Document1zzFN_F4)]{.underline} The dichotomous nature
of the debate is unsettling in that it denies the possibility that legal
reasoning might comply with neither characterization. The very fact that
this debate has persisted for so long gives reason to suspect that
neither account is completely convincing.

This Article introduces into the debate an emerging body of research
called coherence-based reasoning.
[[\[FN5\]](#Document1zzFN_F5)]{.underline} This experimentally based
**\*513** cognitive psychological theory offers a third view of the
black box: a new approach to decision making that indicates a way out of
the stagnant dialectic. Coherence-based reasoning posits that the mind
shuns cognitively complex and difficult decision tasks by reconstructing
them into easy ones, yielding strong, confident conclusions. The
research reveals an unconscious transformation of the way decisions are
mentally represented, ultimately leading to a seemingly straightforward
choice between a compelling alternative and a weak one. To date,
experimentation has revealed eight cognitive features of coherence-based
reasoning, which harbor interesting\--and potentially
troubling\--implications for decision making in the legal domain and
beyond.

This Article has two objectives: to present the experimental research on
coherence-based reasoning to a legal readership, and to apply it to four
important procedures and practices by which we conduct and review
trials. I argue that there are deep incompatibilities between actual
legal decision making and the primarily Rationalist assumptions on which
trials are designed. These incompatibilities render some types of legal
decisions susceptible to a considerable risk of error. At the same time,
since the decision-making process is also incompatible with the Critical
view, we need not be as frustrated with, and distrusting of, the legal
system as the Critics suggest. The research indicates that, by
identifying the cognitive phenomena that lie at the root of the
failings, we can devise interventions and introduce procedures that
reduce the risk of error and thus make the decision-making process
better fit the legal ideals it is intended to serve. This constructive
endeavor is the principal aspiration of this Article. Deviation from
Rationalist ideals does not necessarily imply consciously strategic or
deceitful conduct on the part of the decision-maker. The research shows
that these deviations can be a natural product of the cognitive
**\*514** process even when the decision-maker is honestly motivated to
make a good decision.

One way to understand the distinction between the Rationalist and
Critical positions is to compare their conceptualizations of the term
\"reasoning.\" As the term is usually used in legal discourse, reasoning
stands for the articulation of the rationale for a decision. The term
can also be used to denote the actual processes of inference, that is,
the mental processes by which people advance from one state of belief to
the next. While the Rationalist view implicitly equates the two senses
of the term, the Critical view drives a wedge between them, asserting
that legal decisions are driven by factors that are incompatible with or
unrelated to the espoused premises, analogies, and facts.
[[\[FN6\]](#Document1zzFN_F6)]{.underline}

At a deeper theoretical level, the difference between the Rationalist
and Critical approaches can be understood as hinging on the
directionality of the reasoning process. By definition, logical forms of
inference follow particular courses of reasoning: deductions progress
from major and minor premises toward conclusions; inductions flow from
empirical observations toward generalized rules; analogies emanate from
established cases and extend to target cases; and factual determinations
proceed from evidence, through inferences, toward conclusions. A core
tenet of the Rationalist view is that decision-making processes strictly
follow these paths of inference. Critics, on the other hand, insist that
the inferences are influenced, swayed, or obstructed by nonprescribed
factors or, worse yet, that they proceed in the reverse (and perverse)
course\--creeping backward, from desired conclusions to their putative
sources.

Much rides on this debate. On the Rationalist view, logical inference
promotes decision making that accords with prevailing legal precepts and
factual truths, thereby serving the democratic ideal of fair,
legitimate, and even-handed application of law. By contrast, the Critics
question the legitimacy of legal decision making, viewing it as
propelled by ulterior motives, or driven by hidden biases or other
fundamentally flawed forms of inference.
[[\[FN7\]](#Document1zzFN_F7)]{.underline}

**\*515** This debate is not unique to legal discourse. The Rationalist
view resonates with theories of logic,
[[\[FN8\]](#Document1zzFN_F8)]{.underline} rational choice models of
decision making, [[\[FN9\]](#Document1zzFN_F9)]{.underline} and Bayes
Theorem. [[\[FN10\]](#Document1zzFN_F10)]{.underline} The Critics\'
position echoes a range of empirical work that includes cognitive
research on reasoning, [[\[fn11\]](#Document1zzFN_F11)]{.underline} THE
CONFIRMATion bias, [[\[fn12\]](#Document1zzFN_F12)]{.underline} SOME
ASPECTS of biases and heuristics,
[[\[FN13\]](#Document1zzFN_F13)]{.underline} the \"error paradigm\" in
social psychology, [[\[FN14\]](#Document1zzFN_F14)]{.underline} and to
some extent, cognitive dissonance theory.
[[\[FN15\]](#Document1zzFN_F15)]{.underline} According to these critical
bodies of research, the reasons decision-makers give\--to others and
possibly also to themselves\--fail to correctly reflect the
decision-making process; the reasons are essentially justificatory,
rather than expository.

Coherence-based reasoning offers an empirical alternative to the
Rationalist and Critical approaches. This account does not deny that
human cognition is capable of performing some reasoning tasks in a
**\*516** manner consistent with the Rationalist account, nor that
people violate these assumptions in some circumstances. Rather, it
proposes a theory of cognition that contains elements of both
approaches. A central tenet of the theory is that decisions are the
product of a cognitive mechanism that operates bidirectionally, both in
the prescribed and the reverse directions of reasoning.

Coherence-based reasoning applies to mental tasks in which the person
must make a discrete decision or judgment in the face of complexity.
Tasks are said to be complex when their constitutive considerations are
numerous, contradictory, ambiguous, and incommensurate.
[[\[FN16\]](#Document1zzFN_F16)]{.underline} Most legal cases that are
litigated and appealed are of this nature, in that the facts can be
ambiguous, incomplete, and contradictory; different rules, values, and
principles can be invoked to support opposite conclusions; and the case
at hand can be somewhat analogous to more than one previous decision.
[[\[FN17\]](#Document1zzFN_F17)]{.underline} On their face, such tasks
might seem intractable.

In a nutshell, coherence-based reasoning suggests that decisions are
made effectively and comfortably when based on coherent mental models.
Loosely defined, mental models capture the decision-maker\'s perception
of the task at hand\--that is, the way the considerations of the
decision are represented in her mind.
[[\[FN18\]](#Document1zzFN_F18)]{.underline} A mental model of a
decision task is deemed \"coherent\" when the decision-maker perceives
the chosen alternative to be supported by strong considerations while
the considerations that support the rejected alternative are weak.
[[\[FN19\]](#Document1zzFN_F19)]{.underline} Such is the case, for
example, when the prosecution\'s eyewitness is reliable, the forensic
evidence is compelling, and the defendant has a strong motive and a weak
alibi. A mental model is considered \"incoherent\" when the
decision-maker perceives the considerations as providing equivocal
support for both alternatives. As defined, coherence is an empirical
phenomenon, not a jurisprudential ideal.
[[\[FN20\]](#Document1zzFN_F20)]{.underline}

**\*517** The central finding of coherence-based reasoning research is
that the cognitive system imposes coherence on complex decision tasks.
Throughout the decision-making process, the mental representation of the
considerations undergoes gradual change and ultimately shifts toward a
state of coherence with either one of the decision alternatives. Due to
these coherence shifts, at the culmination of the process, the
decision-maker\'s mental model is skewed toward conformity with the
emerging decision. As the hard case morphs into an easy one, the
decision follows easily and confidently. The fact that decisions are
ultimately based on skewed mental models and backed by high levels of
confidence facilitates the making of the decision, but at the same time
it can also harbor problematic implications.

Coherence shifts are a robust finding. As described below, they have
been consistently observed in experiments using a number of different
stimulus materials. Shifts have been observed in evaluations of factual
inferences, premises, analogies, preferences, background beliefs, public
policy issues, and more. Despite the ambiguity and complexity of the
cases, the perceptions of the cases always shift toward either one of
the two polarized mental models.

Coherence-based reasoning presents a general model of judgment and
decision making in conditions of complexity. The theory parallels, but
differs from, the biases and heuristics research, which underlies the
burgeoning field of behavioral economics.
[[\[FN21\]](#Document1zzFN_F21)]{.underline} These two bodies of
research examine different cognitive phenomena. The biases and
heuristics literature deals primarily with a relatively loose assortment
of specific and narrowly defined tasks of judgment and choice, and does
not purport to offer a cohesive or general psychological theory.
[[\[FN22\]](#Document1zzFN_F22)]{.underline} Coherence-based reasoning
is concerned with the underlying cognitive mechanism that drives the
processing of large and complex processing tasks.

Coherence-based reasoning bears some resemblance to the research on
group polarization, which has been successfully applied by Cass Sunstein
to decision making in various legal contexts.
[[\[FN23\]](#Document1zzFN_F23)]{.underline} Group **\*518**
polarization research shows that deliberation in groups causes
systematic shifts that amplify the group members\' predeliberation
positions; [[\[FN24\]](#Document1zzFN_F24)]{.underline} coherence-based
reasoning reveals a similar amplification at the intrapersonal level.
There is good reason to believe that the two phenomena interact with and
compound one another.

The bidirectional interaction between the underlying considerations and
the ultimate decision bears a structural resemblance to John Rawls\'s
concept of reflective equilibrium.
[[\[FN25\]](#Document1zzFN_F25)]{.underline} Despite the structural
resemblance, however, there is an important difference between
reflective equilibrium and coherence-based reasoning. The former is a
normative approach and is prescribed as a process best suited to solve a
category of judgments. Coherence-based reasoning, on the other hand, is
an empirical construct. It is a nonconscious cognitive process that
drives decisions of a certain type, and causes both sanctioned and
non-sanctioned changes in the mental models representing the task.

Part I of this Article introduces the cognitive theory underlying
coherence-based reasoning and reviews some of the experimental findings
that support it. Together, these findings amount to an elaborate account
of cognitive processing in conditions of complexity.

In Part II, I apply the research to four existing procedures and
practices used to conduct and review trials. The first application
follows from the finding that coherence shifts occur prior to the making
of a decision. This suggests the possibility that, in both criminal and
civil trials, jurors integrate the evidence into coherent mental models
before having been instructed on the law. If the jurors\' preconceptions
of the applicable law are incorrect, this could readily lead to legally
incorrect **\*519** decisions. I propose introducing substantive
instructions at a preliminary stage of the trial, and discuss various
implications of the proposal.

Second, coherence-based reasoning speaks to an ongoing debate as to
whether fact-finders evaluate evidence in a holistic or an atomistic
manner. This debate has particular significance with respect to the
admissibility of potentially prejudicial evidence. While the empirical
findings support the holistic account, I argue that its corollary
prescription is wrong. I also caution against a Supreme Court decision
that tends toward a relaxation of the restraints on the admissibility of
evidence. [[\[FN26\]](#Document1zzFN_F26)]{.underline}

The third application concerns verdict determinations in criminal
trials. The primary finding of the research is that coherence shifts
polarize perceptions of the evidence. Jurors with a slight initial
inclination to acquit or convict are likely to amplify their perception
of the case, so that evidence that is weakly probative of guilt can be
transformed to create mental models that strongly support either
innocence or guilt. Normatively, this matters for jurors who vote to
convict, because the evidence is bolstered from overall ambiguity to a
belief beyond a reasonable doubt. Thus, coherence shifts can undermine
the role of the heightened standard of proof. Initial research shows
that this problem can be moderated by means of a fairly straightforward
instruction aimed at neutralizing the bias. I propose that, contingent
on further research, juries be given such an instruction.

The final application pertains to the doctrine of harmless error in
criminal trials, which has been torn between two modes of analysis: one
that focuses on assessing the impact of the error on the trial outcome,
and the other that focuses on assessing guilt as it appears from the
remaining, presumably untainted, evidence. The Supreme Court tends to
apply the latter, guilt-focused approach. The context of harmless-error
review is unique in that it gives judges considerable latitude in
structuring their decision. In cases that concern the erroneous
admission of impermissible evidence, the appellate judge\'s perception
of the remainder of the evidence is likely to have been affected by the
impermissible evidence due to coherence effects. Since that evidence
might well be tainted, judges ought to shy away from guilt-focused
analysis. For cases that involve errors other than impermissible
evidence, coherence-based reasoning does not by itself warrant a strong
prescription, but it does offer some reasons for preferring error-based
analysis.

In the Conclusion, I claim that coherence-based reasoning applies to a
considerably broader range of legal issues than the four examples
**\*520** discussed in Part II. To date, the experimental research is
moving faster than the applications to law, and with more research
underway, the theory harbors immense potential for providing unique
insight to many more legal applications.

I. Coherence-Based Reasoning: Theory and Experimental Support

This Part of the Article presents the psychological underpinnings of
coherence-based reasoning. After a short introduction to the key
theoretical aspects, I provide an account of the experimentation in some
detail. The research necessary for the legal applications in Part II is
summarized and discussed at the end of this Part.

A. The Cognitive Theory

Connectionist Representations. All mental processing starts with a
mental representation of the task.
[[\[FN27\]](#Document1zzFN_F27)]{.underline} Decisions are made within
certain problem spaces that contain and delimit the representation of
the task variables, that is, all the factors that are to be included in
the decision at hand. The representations of the variables are called
mental models of the decision task.

Coherence-based reasoning presumes a connectionist architecture of
mental representations, which can be likened to an intricate electrical
network. [[\[FN28\]](#Document1zzFN_F28)]{.underline} Each variable is
represented in the mind as a unit, **\*521** which is then connected
through the network to all the other units.
[[\[FN29\]](#Document1zzFN_F29)]{.underline} The initial representation
of a mental task is determined foremost by the rich and detailed store
of background knowledge about one\'s physical, social, and conceptual
worlds. [[\[FN30\]](#Document1zzFN_F30)]{.underline} The mental model of
a complex decision task contains a myriad of variables that point in
more than one direction and thus do not all fit into a coherent mental
model. One subset of variables (a~1~, a»
~»,.»\ .\ .a~n~)\ supports\ conclusion\ A,\ and\ the\ other\ subset\ (b~1~,\ b~2.
. .b%l» ~,.\ .\ .b»~ts the opposite conclusion B.

Constraint Satisfaction Mechanisms. In all but easy cases, neither
subset of variables dominates the other. Since each variable has some
bearing on the task, it can be said to impose a constraint on the
network. [[\[FN31\]](#Document1zzFN_F31)]{.underline} Connectionist
systems process mental tasks through a nonconscious process in which the
mentally represented variables interact with one another like an
electrical network. Activation spreads throughout the mental model.
[[\[FN32\]](#Document1zzFN_F32)]{.underline} Each and every constraint
influences, and is influenced by, the entire network, so that every
processing cycle results in a slightly modified mental model. Over time,
unsupported variables or those suppressed by other variables degrade and
even die out, while those that are mutually supported gain strength.

**\*522** The central feature of constraint satisfaction mechanisms is
that the mental model will reconfigure itself until the constraints
settle at a point of maximal coherence. Coherence, the state at which
similarly linked variables are similarly activated, occurs when the
variables that support the emerging decision are strongly endorsed and
those supporting the alternative are dismissed, rejected, or ignored. In
complex decisions, the initial mental representation of the task is
naturally incoherent. Constraint satisfaction processes force the task
variables to change toward a better fit with the gradually emerging
state of coherence. [[\[FN33\]](#Document1zzFN_F33)]{.underline} This
reversed induction gives coherence-based reasoning its bidirectional
character: while the strength of supporting variables determines the
conclusion, the variables themselves are transformed by the cognitive
process so as to provide considerably stronger support for the
conclusion. [[\[FN34\]](#Document1zzFN_F34)]{.underline}

In sum, the ultimate state of coherence is essentially a byproduct of
the cognitive system\'s drifting toward either one of two skewed mental
models. Within each of these models, the initially complex and
incoherent mental model has been spread into two subsets, one of which
dominates the other, thereby enabling a relatively easy and confident
**\*523** choice. This skewed representation reflects an artificial
polarization between the inflated representation of the variables that
support the chosen conclusion and the deflated ones that support the
rejected conclusion; it differs considerably from the way the task
variables were perceived before the decision-making process got
underway, and it differs also from the way they will be perceived some
time after the completion of the task.

While coherence-based reasoning is a nascent field of research,
constraint satisfaction mechanisms have been the subject of quite active
research over the last two decades.
[[\[FN35\]](#Document1zzFN_F35)]{.underline} This research, however, has
been based primarily on computer modeling and has focused on the role of
coherence as a criterion for judgments and decision making. My
collaborators and I designed coherence-based reasoning research as an
experimental paradigm, with the additional ambition of demonstrating the
effects of the decision-making process on the mental models of the task
variables.

B. The Experimental Research

The following Part outlines the empirical support for the eight primary
features of coherence-based reasoning. The research focuses on two
series of experiments: one based on the case of Quest v Smith, performed
in collaboration with Keith Holyoak of the Department of Psychology at
UCLA, and one based on the case of Jason Wells, performed **\*524** in
collaboration with Stephen Read of the Department of Psychology at USC.
[[\[FN36\]](#Document1zzFN_F36)]{.underline}

1\. The basic finding: coherence shifts.

The first finding concerns the fundamental property of coherence-based
reasoning: that in the course of making a complex decision, the mental
model of the task shifts toward coherence with the emerging decision.

The Case of Quest v Smith. [[\[FN37\]](#Document1zzFN_F37)]{.underline}
Participants were first presented with a pretest that contained a number
of apparently unrelated vignettes. Each vignette was followed by a
statement or two that could be inferred from the vignette. Participants
were asked to rate their agreement with each inference. Participants
were told that they were not expected to have any expert knowledge, and
were encouraged to use common sense and general knowledge in making
their ratings. Ratings were made on an eleven-point scale, ranging
from-5 (\"strongly disagree\") to +5 (\"strongly agree\"), with a rating
of 0 indicating neutrality. In total, participants rated twelve
inferences. [[\[FN38\]](#Document1zzFN_F38)]{.underline} Some vignettes
involved factual judgments, [[\[FN39\]](#Document1zzFN_F39)]{.underline}
and some involved more abstract issues such as analogies and issues of
social policy. [[\[FN40\]](#Document1zzFN_F40)]{.underline} Unbeknownst
**\*525** to the participants, these vignettes constituted the parts of
a legal case which they would later be asked to decide.

In the second phase of the experiment, participants were asked to play
the role of a young judge, assigned to decide a civil case in which
Quest, a software company, filed a libel lawsuit against one of its
shareholders, Jack Smith. The materials contained the summary of the
evidence, which was loosely based on an actual case. The facts were not
in dispute. Quest\'s financial situation was deteriorating and its
managers were struggling to cope with the problems facing the company.
Smith, a dissatisfied shareholder, posted a negative message on an
electronic bulletin board directed at investors in which he sharply
criticized the company\'s management and predicted a precipitous
downfall. Shortly thereafter, Quest\'s stock price plummeted and the
company went bankrupt. It was later revealed that Quest had been
secretly developing a new product that might have saved the company,
though this information was not known to Smith.

Each of the parties made six arguments, forming opposing pairs on the
six points of dispute. [[\[FN41\]](#Document1zzFN_F41)]{.underline}
Crucially, the litigants\' arguments were virtually identical to the
inferences that followed the vignettes in the pretest. Overall, the
facts of the case were ambiguous, and the parties\' arguments were
plausible and balanced so as to create a complex decision.

Participants were asked to render a verdict in favor of either party.
Again, they were reminded that they were not expected to have any expert
knowledge, but were asked to use common sense and to base their
decisions \"as soundly and fairly as possible on the available facts and
arguments from both sides.\" The verdict was followed by a request to
\"(r)ate your confidence that you have made the best possible **\*526**
decision.\" The confidence rating was made on a five-point scale,
ranging from 1 (low), through 3 (medium), to 5 (high). Participants were
then asked to rate their agreement with the twelve arguments made by the
parties. These questions were essentially identical to the questions
asked on the pretest. [[\[FN42\]](#Document1zzFN_F42)]{.underline} The
key measure in this experiment and those that follow is the comparison
between the ratings given on the vignettes with those given at the
subsequent stage of making the decision. Coherence-based reasoning would
predict that emerging decisions will be accompanied by a general shift
in the ratings, from the initial, spontaneous state in which the
variables are neither coherent with the eventual decision nor with the
other variables, to a state in which they cohere with the decision and
with other variables that support the same decision.

All the results were consistent with these predictions. First, we found
that the participants made confident decisions despite the complexity of
the case. Participants reported high levels of confidence in their
decisions: 75 percent of participants indicated that they had maximal or
next-to-maximal confidence in their verdicts; conversely, only 5 percent
indicated low or next-to-low confidence.
[[\[FN43\]](#Document1zzFN_F43)]{.underline}

**\*527** Next, we examined the crucial comparison between the ratings
given at the two phases of the experiment. We found that the vignette
ratings were mostly moderate, whereas by the conclusion of the legal
decision, the ratings of the arguments had shifted to polarized states
of coherence: participants who voted for Smith reported strong agreement
with the arguments that supported the Smith verdict and disagreement
with the arguments that supported Quest\'s position, while opposite
ratings were reported by participants who decided for Quest.
[[\[FN44\]](#Document1zzFN_F44)]{.underline} Coherence shifts can also
be observed for individual points of dispute. For example, participants
were told that legally, a claim of libel can be based on an expression
published in a newspaper, but not an expression communicated over the
telephone. The materials contained putative legal definitions of both a
newspaper and a telephone system, each of which was sufficiently
ambiguous to be seen as applicable to the Internet.
[[\[FN45\]](#Document1zzFN_F45)]{.underline} Based on these definitions,
the lawyer for the plaintiff Quest argued that the Internet is like a
newspaper and thus exposed to libel law. The lawyer for defendant Smith
argued that the Internet is closer to the legal definition of a
telephone system and thus immune from libel law. In the post-test
questionnaire, participants were asked to rate their agreement with each
of these analogies. [[\[FN46\]](#Document1zzFN_F46)]{.underline}
**\*528** Coherence shifts were evident not only from the combined mean
shifts of the ratings, but also from an inter-correctional analysis.
[[\[FN47\]](#Document1zzFN_F47)]{.underline} It is noteworthy that the
coherence shifts occurred within a single experimental session of only
one hour. [[\[FN48\]](#Document1zzFN_F48)]{.underline}

The case of Jason Wells. [[\[FN49\]](#Document1zzFN_F49)]{.underline}
The second set of materials was designed to test simulated jury decision
making in a fact-laden criminal **\*529** case. We conducted these
experiments, first, to replicate the findings of the Quest experiments
using different materials, and, second, to test whether coherence
effects would be present in tasks that hinge entirely on probabilistic
evidence, including evidence expressed in numeric terms. The
experimental design enabled a comparison between the descriptive power
of coherence-based reasoning and Bayes Theorem, considered by many to be
the reigning conceptual framework for the understanding of evidence law.
Additionally, we sought to increase the external validity of
coherence-based reasoning by using a larger and more diverse pool of
participants. In this study, participants, all of whom were eligible for
jury service, were presented with a task that would be demanded of
actual jurors. [[\[FN50\]](#Document1zzFN_F50)]{.underline}

As in the Quest experiments, participants were first presented with, and
asked to draw factual inferences from, a pretest that consisted of seven
apparently isolated vignettes. For example, a vignette that concerned an
eyewitness identification of a person was followed by a factual question
about the likelihood that the identification was correct.
[[\[FN51\]](#Document1zzFN_F51)]{.underline}

The second phase of the experiment presented participants with a
whodunit case that involved a theft of money from a construction
company\'s safe. The sole question in the case concerned the identity of
the perpetrator. One of the company\'s employees, Jason Wells, was
suspected of committing the theft. Participants were asked to play the
role of jurors assigned to decide the case.
[[\[FN52\]](#Document1zzFN_F52)]{.underline}

The pieces of evidence\--all circumstantial\--were unrelated to each
other. Four items tended to incriminate the defendant: an eyewitness
identification; a security camera that captured a car like the one
defendant drives screeching out of the parking lot soon after the crime
was committed; a call the defendant made on his cell phone from the
vicinity of the building soon after the crime; and an apparent grudge
that he held against the company (these items will be labeled
\"inculpating items\"). [[\[FN53\]](#Document1zzFN_F53)]{.underline} Two
of the inculpating items were defined in **\*530** numeric values.
[[\[FN54\]](#Document1zzFN_F54)]{.underline} Three pieces of evidence
had an exonerating effect: he was seen far away from the crime scene
later that evening; payments he made after the crime came from
legitimate family transactions; and it was possible that he was working
harder to make amends with the company (these items will be labeled
\"exculpating items\"). The evidence was virtually identical to the
factual issues contained in the vignettes. In all, the evidence was
sufficiently multifarious and balanced so as to create a complex case.

Participants were next presented with the arguments made by the
attorneys of both sides of the case. The arguments pertained to
inferences from the underlying evidence. Participants were asked to
render a verdict and to rate their confidence in the decision.
[[\[FN55\]](#Document1zzFN_F55)]{.underline} They were then asked to
rate their agreement with the inferences as argued by the parties. The
questions were phrased in terms of the likelihood of the defendant\'s
guilt, given each piece of evidence, a phrasing that approximates
Bayesian judgments. [[\[FN56\]](#Document1zzFN_F56)]{.underline} These
questions were essentially identical to those asked on the pretest.
[[\[FN57\]](#Document1zzFN_F57)]{.underline}

Consistent with our predictions and with the findings in the Quest case,
the ratings of the facts shifted considerably and consistently toward
coherence with the eventual verdict. As seen in Figure 4, at the
vignette phase, the facts are ambiguous and nonprobative: there is no
significant difference between the mean pretest ratings of the
inculpating and exculpating items, and there are no differences between
the mean ratings given by participants who ultimately decided against
the defendant and ratings given by those who acquitted him. At the
**\*531** second measurement, in contrast, we see large differences
between participants who found the defendant guilty and those who found
him innocent. For the former, we observe an increase in ratings of the
inculpating items and an acute decrease in that of the exculpating
items; opposite shifts are seen for those who decided in his favor.
[[\[FN58\]](#Document1zzFN_F58)]{.underline} In other words, by the
point of decision, the mental models of the evidence are skewed toward
strong support of the respective verdicts. Notably, these coherent
representations were not inherent to the perceptions of the evidence
itself. Rather, they resulted from the polarizing transformation of the
originally ambiguous and nonprobative evidence toward either one of the
two coherent mental models, each of which was decidedly probative with
regard to the respective verdict.
[[\[FN59\]](#Document1zzFN_F59)]{.underline}

**\*532** As predicted, and consistent with the Quest findings,
participants demonstrated remarkably high levels of confidence in their
decisions, regardless of their verdicts. Virtually none of the subjects
were neutral or uncertain about a verdict: only 11 percent of the
participants gave confidence ratings values of between 1 and 5 (on a
scale ranging from 1 to 11), and 49 percent gave ratings of 9 and above.
We next sought to test for a relationship between participants\' ratings
of the evidence and their reported levels of confidence. We found that
the confidence levels were statistically related to the difference
between the ratings of the inculpating and exculpating evidence, so that
higher discrepancies in perceptions of evidence resulted in higher
levels of confidence. [[\[FN60\]](#Document1zzFN_F60)]{.underline}
Finally, levels of confidence were also positively related to the
magnitude of the coherence shift, so that participants who displayed
higher differences between the ratings of the evidence at the two points
of measurement also reported higher levels of confidence.
[[\[FN61\]](#Document1zzFN_F61)]{.underline} In **\*533** other words,
the greater the transformations of the mental models, the higher the
confidence experienced.

2\. The lack of awareness of coherence shifts.
[[\[FN62\]](#Document1zzFN_F62)]{.underline}

The second feature of coherence-based reasoning concerns its
metacognitive dimension\--the degree to which people are aware of the
process, particularly of their shifting perceptions of the task
variables. We hypothesized that coherence shifts transpire without
awareness\--that they are mostly an automatic, rather than a controlled
and conscious, form of cognitive processing.
[[\[FN63\]](#Document1zzFN_F63)]{.underline}

Testing for metacognition typically requires indirect measures. Our
method was based on the assumption that one must have knowledge of both
the original and the subsequent ratings of the task variables to be
aware of coherence shifts. A failure to recall the original state
precludes the possibility of comparing the two states, and thus of
noticing change. We ran two studies that were identical to the first
Quest study, except that we added another instrument. After the decision
task was completed, the participants were asked to recall the ratings
they gave at the vignette phase.
[[\[FN64\]](#Document1zzFN_F64)]{.underline}

Results showed that the participants recalled their original ratings
inaccurately: the ratings they reported actually approximated their
current, post-coherence shift ratings. This finding suggests that
people\'s awareness of coherence shifts is limited; people feel that
their current beliefs are the ones they held all along. As discussed
below, this phenomenological state maintains the aura of rationality and
legitimacy in the decision-making process.

**\*534** 3. The facilitative function of coherence shifts: not mere
post hoc justification. [[\[FN65\]](#Document1zzFN_F65)]{.underline}

The next series of experiments examined the important theoretical
question of the role that coherence shifts play in the decision-making
process. It could be argued that the shifts play no active role in the
process itself, but serve only as post hoc rationalizations for
decisions driven by other factors or different mechanisms. This is the
view offered by cognitive dissonance theory, which posits that attitudes
and preferences change exclusively due to post-decision regret. Only
after a person commits herself to a course of action does regret cause
the arousal of dissonance, which is then reduced by rationalizing the
decision. [[\[FN66\]](#Document1zzFN_F66)]{.underline} We sought to test
this aspect of coherence-based reasoning.

In a series of studies based on the Quest case, we induced participants
to delay their decisions and measured their preliminary rating of the
arguments during the period of delay.
[[\[FN67\]](#Document1zzFN_F67)]{.underline} Contrary to dissonance
**\*535** theory, significant coherence shifts were observed at this
early stage. [[\[FN68\]](#Document1zzFN_F68)]{.underline} This finding
suggests that coherence shifts play a functional role in the
decision-making process, in that the spreading apart of the variables
creates dominance of one alternative over its rival, thereby enabling a
confident decision. Similar predecisional shifts were observed in a
study based on the Jason Wells case.
[[\[FN69\]](#Document1zzFN_F69)]{.underline} In addition to the shifts
that preceded the decision, coherence shifts were also observed
following the point of decision, though the post-decisional shifts were
typically marginal. [[\[FN70\]](#Document1zzFN_F70)]{.underline}
Coherence shifts, the data suggest, precede decisions.
[[\[FN71\]](#Document1zzFN_F71)]{.underline}

**\*536** 4. The depth and breadth of coherence effects.
[[\[FN72\]](#Document1zzFN_F72)]{.underline}

All mental processing draws closely from one\'s background knowledge.
[[\[FN73\]](#Document1zzFN_F73)]{.underline} A decision to cross a
street, for example, is contingent on one\'s experience-born knowledge
about vehicles, motion, and driver behavior. A choice to form a
friendship is influenced by one\'s knowledge of cues for
trustworthiness, love, selfishness, and the like. Thus, when a juror in
a criminal case is presented with testimony about an eyewitness
identification, his judgment of that evidence is bound to be informed by
his background beliefs about the accuracy of eyewitness identification
in general. There is a natural coherence between specific inferences and
the decision-maker\'s background belief system.

This relationship, however, is hardly fixed. Take, for instance, a juror
who generally believes that people often misidentify strangers and who
thus tends to treat a certain eyewitness identification with suspicion.
Despite his doubt, the juror might be convinced by some other piece of
inculpating evidence\--say, the fact that a car seen screeching away
from the crime scene is the same car that the defendant drives. If the
latter piece of evidence is sufficiently compelling, this juror would
lean toward conviction, and as a result of coherence effects, he would
also become more likely to endorse the eyewitness evidence. The
question, then, is what happens to the relationship between the judgment
of the particular eyewitness testimony and the now contradictory belief
about the accuracy of eyewitness identification in general.

One possibility is that an inconsistency arises, presumably resulting in
discord between the shifting inference and the background belief system.
Such discord could potentially have a destabilizing effect on the
emerging conclusion, resulting in lower confidence. Another possibility
is that the background beliefs shift too, and thus maintain coherence
with the respective inferences. For example, as the juror leans toward
conviction and increasingly believes the prosecution\'s eyewitness, his
belief about eyewitness accuracy in general becomes less skeptical. If
this were the case, it would mean that coherence is a pervasive and
powerful feature that spreads beyond the specific task variables and
into background knowledge structures.

Experiments using the Jason Wells materials indicated that the latter
possibility is correct. Six questions about participants\' general
**\*537** beliefs were included at both the vignette phase and the final
phase, [[\[fn74\]](#Document1zzFN_F74)]{.underline} AND THESE BELiefs
were also referred to in closing arguments. we compared the ratings of
the same questions at both phases and found that the background beliefs
shifted significantly toward coherence with the respective verdict,
[[\[FN75\]](#Document1zzFN_F75)]{.underline} though, not as strongly as
the shifts observed in the factual inferences. This difference is not
surprising since background beliefs are presumably learned and
rehearsed, and therefore more stable than specific judgments in ad hoc
tasks.

It is noteworthy that coherence effects not only run deep, they also run
wide; they can spread from one case to the next. In another experiment,
after deciding the Quest case, participants were asked to decide a
second, unrelated case that shared a single common issue.
[[\[FN76\]](#Document1zzFN_F76)]{.underline} We found that coherence
spread from the first verdict, through the common issue to the verdict
of the second case, and reached as far as causing shifts in other
variables in that case.

5\. The effects of indirect influences.
[[\[FN77\]](#Document1zzFN_F77)]{.underline}

Another feature of coherence-based reasoning that warrants attention
concerns the effect of changes in one task variable on other variables.
Connectionist theories posit that any variable can potentially influence
the entire network, including variables to which it is not directly
linked. In a study based on the Quest case, one-half of the participants
received an account in which the defendant Smith was described as a
benevolent person, and the other half received a description of a
malevolent defendant. We expected that this manipulation **\*538** would
affect the verdicts so that more verdicts favoring the defendant would
be rendered in the former case than in the latter. The crucial question,
however, was whether and how this manipulation would influence the
ratings of the other variables involved in the case, none of which had
any plausible relation to Smith\'s character.

As expected, the information about Smith\'s previous conduct had a
strong influence on the distribution of the verdicts. Of the
participants who received positive information about Smith, 72 percent
rendered verdicts in his favor, whereas only 22 percent of those who
received negative information decided for him. More importantly, we
analyzed the ratings of all of the other variables in the case to see
whether they were influenced by the new information. All the variables
shifted to cohere with the chosen decision.
[[\[FN78\]](#Document1zzFN_F78)]{.underline} In other words, the
manipulated piece of information had a substantial effect on variables
with which it had no plausible relationship. For example, manipulating
the defendant\'s character changed participants\' views on the analogy
likening the Internet to a newspaper and on the appropriateness of
regulating free speech over the Internet. Similar findings of indirect
influences were made in a study based on the Jason Wells case. The
introduction of DNA evidence that inculpated or exculpated the defendant
resulted in predicted changes in all the other pieces of evidence.
[[\[FN79\]](#Document1zzFN_F79)]{.underline}

Another experiment based on the Jason Wells case was designed to get a
closer look at the dynamics of coherence-based reasoning by examining
what happens when people change their minds during the decision-making
process. In light of the finding that coherence effects occur before
decisions are made, [[\[FN80\]](#Document1zzFN_F80)]{.underline} one
might believe that people should rarely change their minds in response
to new information and that when they do, they are left in a state of
strong incoherence with their previous mental models. Yet, experience
suggests that, under some conditions, people respond to new evidence
that contradicts **\*539** prior leanings by changing their minds,
[[\[FN81\]](#Document1zzFN_F81)]{.underline} and that changing one\'s
mind does not seem to have notable influences on the resulting
decisions.

The experiment tracked the representation of the evidence after we
introduced strong new evidence that was inconsistent with the person\'s
previous leanings. One possibility is that since the preexisting
evidence cohered with the previous decision, the new decision would not
be supported by a coherent set of variables. The alternative possibility
is that a second shift would occur\--in the opposite
direction\--ultimately leading to a newly formed state of coherence.
Prior to the presentation of the evidence, participants were told that
an important piece of evidence was expected to become available at a
later stage, and that they were therefore advised to withhold deciding
the verdict until they received the missing evidence. During the delay,
participants were asked to indicate their \"tentative leanings,\" and to
rate the evidence already presented.
[[\[FN82\]](#Document1zzFN_F82)]{.underline} Following the delay,
one-third of the participants were presented with incriminating
evidence, one-third with exonerating evidence, and one-third were told
that no new information would be made available.
[[\[FN83\]](#Document1zzFN_F83)]{.underline} Participants were then
asked to decide the verdict, report their confidence, and rate the
evidence again.

The results showed that a majority of participants followed their
initial leanings, but some did switch their verdicts.
[[\[FN84\]](#Document1zzFN_F84)]{.underline} Not surprisingly,
participants who did not switch their verdicts displayed coherence
shifts that resembled those observed in the previous delay
studies\--that is, a significant shift from the pretest to the interim
judgments, and then a further, more moderate shift at the decision
phase. [[\[FN85\]](#Document1zzFN_F85)]{.underline} Of particular
interest, though, were those participants who switched their **\*540**
verdicts. Switchers displayed a unique pattern; their ratings dovetailed
with their new verdict preferences. Their ratings first shifted from
pretest levels to a state of coherence with their initial leanings, but
as their preferred verdicts changed, so did their ratings of the
evidence. [[\[FN86\]](#Document1zzFN_F86)]{.underline} The ratings of
the evidence, then, shifted twice\--in opposite directions\--from an
initial state of complexity toward coherence with whichever verdict
seemed more appealing at that time. Interestingly, switchers were no
less confident than those who did not switch.

The findings of this tracking experiment also support the conclusion
that coherence shifts occur before participants commit themselves to
verdicts. [[\[FN87\]](#Document1zzFN_F87)]{.underline} Participants
showed strong coherence shifts at the interim measurement, despite the
unavailability of supposedly important evidence, and despite being urged
to withhold the decision.

In all, the experiments showing the effects of indirect influences
provide the additional methodological benefit of strengthening the basic
finding of coherence shifts. In these experiments, we showed not only
that people drift spontaneously toward polarized mental models, but that
they can be driven to do so by experimental manipulation.
[[\[FN88\]](#Document1zzFN_F88)]{.underline}

**\*541** 6. The effect of predilections\--motivations and attitudes.

One of the most important developments in experimental psychology over
the past two decades has been the retreat from the view that cognitive
psychology can be reduced to pure models of information processing. The
prevailing consensus is that motivations guide and interact with the
cognitive system, influencing how people reason and perceive their
environments. [[\[FN89\]](#Document1zzFN_F89)]{.underline}

We sought to test whether motivations interact with coherence effects.
[[\[FN90\]](#Document1zzFN_F90)]{.underline} A series of experiments
revealing shifts in estimates of the likelihood of winning a horse race
provide partial empirical support. We found that as people approach the
decision of placing a gamble on a horse, they report increasingly higher
estimations of winning. As we interpret this finding, the positive
valence of winning the race influences the mental model of the race
variables so that they cohere with the desired outcome, thus causing an
increase in the purportedly objective criterion for the choice\--the
perceived odds of winning. [[\[FN91\]](#Document1zzFN_F91)]{.underline}

Stronger empirical support has recently been collected in a study that
offers a more direct test for the relationship between motivated
outcomes and coherence-based reasoning. In this case, called Dixon v
Providential Life, a widow is suing an insurance company for the
proceeds of her late husband\'s life insurance.
[[\[FN92\]](#Document1zzFN_F92)]{.underline} The company refused
compensation based on its view that the death was a suicide. The facts
are ambiguous with respect to the cause of death. Participants were
assigned to play the role of the parties\' lawyers. The findings show
strong coherence effects supporting the desired conclusions:
participants **\*542** report optimistic predictions of the jury
decision; they make settlement offers that are skewed in their clients\'
favor; they rate the contested facts of the case as supportive of their
side; they believe that fairness is on their side; they find their own
witnesses to be more credible than the opponent\'s and maintain that
jurors would believe the same; they believe that jurors would like their
client more than the opponent; and more.
[[\[FN93\]](#Document1zzFN_F93)]{.underline} We observe a strong and
significant correlation between the strength of desire and the magnitude
of the distorted views of the case.

We have also found evidence that supports the proposition that coherence
effects interact with the decision-maker\'s preexisting attitudes,
particularly those embedded in the person\'s enduring value system.
[[\[FN94\]](#Document1zzFN_F94)]{.underline} For example, we found that,
consistent with previous research,
[[\[FN95\]](#Document1zzFN_F95)]{.underline} participants with strong
pro-death penalty attitudes were more likely to convict the defendant
than participants with anti-death penalty attitudes. As predicted, the
mental models of the evidence and beliefs cohered with the corresponding
verdicts, so that people with strong pro-or anti-death penalty attitudes
interpreted all the evidence in the case in a way that cohered with
conviction and acquittal, respectively.
[[\[FN96\]](#Document1zzFN_F96)]{.underline}

7\. The transitory nature of coherence.
[[\[FN97\]](#Document1zzFN_F97)]{.underline}

In another recent experiment, we tested the endurance of coherence
shifts; we intended to explore whether coherence shifts cause long-term
changes in people\'s attitudes, or whether they are merely transitory
states. The former hypothesis suggests that decisions bind one to
certain positions for future decisions, with the result of exacerbating
complexity and incoherence under different circumstances. The latter
hypothesis implies that the cognitive system is flexible and adaptive,
and enables representations to shift toward coherence on the task at
hand without encumbering the person for future decisions.

8\. Moderating (debiasing) coherence.
[[\[FN101\]](#Document1zzFN_F101)]{.underline}

Another version of the Quest case examined whether coherence effects can
be undone, or at least moderated. In other fields of research, attempts
to \"debias\" people and prevent them from making errors in judgment and
choice tasks have had mixed results. Direct approaches, like informing
participants of the existence of the bias and imploring them to \"try
harder\" or to \"be unbiased\" have been generally unsuccessful.
[[\[FN102\]](#Document1zzFN_F102)]{.underline} Some success has been
obtained with techniques **\*544** that induce participants to actively
create mental models in which they imagine alternative conclusions by
urging them to consider the correctness of the opposite conclusion
[[\[FN103\]](#Document1zzFN_F103)]{.underline} and to note the
weaknesses of their preferred conclusion.
[[\[FN104\]](#Document1zzFN_F104)]{.underline}

Participants were randomly assigned to one of three conditions\--a
control condition in which no debiasing instruction was given, a
condition in which participants were given an instruction imploring them
to \"be unbiased,\" [[\[FN105\]](#Document1zzFN_F105)]{.underline} and a
condition in which they were instructed to \"take some time to seriously
consider the possibility that the opposite side has a better case.\"

The results showed that the \"be unbiased\" instruction made little
difference as compared to the control condition, but the
\"consider-the-opposite\" instruction had a moderating effect on
coherence shifts. The magnitude of the coherence shifts in the
\"consider-the-opposite\" condition were about one-half of what they
were in the control condition, whereas the shifts in the \"be unbiased\"
condition did not differ from those in the control condition. Based on
this first study, it appears that coherence shifts can be reduced
substantially by means of a simple instruction. We expected also to find
lower confidence levels in the \"consider-the-opposite\" condition, but
found in fact no such difference. More studies are required to gain a
better sense of the effects of the debiasing intervention.

C. Summary and Discussion of Experimental Findings

The picture that emerges thus far from the experimentation is that
decision making in complex tasks is governed by coherence-based
reasoning, and this process appears to enable people to solve
computationally daunting tasks with great confidence. Specifically, the
experimentation reveals eight features of coherence-based reasoning:

1\. The basic finding of coherence shifts.

Throughout the decision-making process, mental representation of the
task shifts toward a state of coherence with the emerging
verdict.**\*545** Ambiguous, equivocal, and conflicting variables are
transformed into coherent models, that is, lopsided and exaggerated
mental representations in which the variables that support the emerging
decision are strongly accepted while those that support the losing
decision are dismissed, rejected, or ignored.

2\. Lack of awareness.

People tend not to appreciate the incompatibility between their initial
and eventual mental models of the task. This finding supports the view
that coherence shifts are governed by automatic cognitive mechanisms
that operate under the level of conscious awareness. Coherence shifts
are part of the many important cognitive processes that take place in
the background of our conscious arena, without which making sense of the
world would be difficult, if at all possible.
[[\[FN106\]](#Document1zzFN_F106)]{.underline} This finding is
consistent with a robust body of literature demonstrating that people
have a general tendency to perceive objectivity in their reasoning
processes, [[\[FN107\]](#Document1zzFN_F107)]{.underline} and to view
the world through a perspective of \"naive realism.\"
[[\[FN108\]](#Document1zzFN_F108)]{.underline} The lack of awareness
gives the decision-maker a false sense of constancy in his own
perception of the case. The ensuing decision is thus experienced as
rationally warranted by the inherent values of the variables, rather
than by an inflated perception imposed by the cognitive system. The lack
of awareness then helps the decision-maker maintain the phenomenological
experience of rationality and objectivity.

Coherence shifts, consequently, do not represent conscious, strategic,
or deceitful conduct on the part of a decision-maker; rather, they
**\*546** are the natural consequence of the normal mechanisms of
cognitive processing.

3\. The facilitative function of coherence shifts.

Coherence shifts occur, for the most part, before the point of the
decision. This finding refutes the view, espoused by cognitive
dissonance theory, that the cognitive changes serve only to justify
decisions by reducing post-decisional regret. It suggests, rather, that
coherence shifts play an operative role in the decision-making
process\--the spreading apart of the considerations into one strong and
one weak set facilitates confident choice. Any observed post-decisional
shifts tended to be much weaker than the predecisional ones, suggesting
that the regret-induced post-decisional distortions are secondary.
[[\[FN109\]](#Document1zzFN_F109)]{.underline}

4\. The breadth and depth of coherence effects.

Coherence shifts occurred both in the variables directly involved in the
task and in related background beliefs. For example, changes were
observed not only in the rating of the probativeness of an eyewitness\'s
testimony but also in beliefs regarding the accuracy of eyewitness
testimony in general. These findings demonstrate that coherence effects
are sufficiently strong so as to pervade people\'s belief systems and
skew background knowledge toward coherence with the case at hand.
[[\[FN110\]](#Document1zzFN_F110)]{.underline} Coherence shifts have
considerable breadth as well. In a separate experiment, we found that
the verdict in one case spilled over into a subsequent case that shared
one common variable, but was otherwise unrelated.

**\*547** 5. The effects of indirect influences.

In a number of experiments, we found that changing one aspect of the
case triggered changes throughout the mental models: not only did it
alter the verdict distribution, but it also influenced the ratings of
variables that were unrelated to the manipulated variable. Such
circuitous and indirect influences inhere in the connectionist nature of
cognition. This finding becomes particularly acute in combination with
the finding that people have low awareness of the shifts.
Decision-makers are likely to perceive sufficient reason to base a
decision on a particular set of variables, unaware that their perception
of those variables is influenced by an extraneous\--possibly
illegitimate\--variable.

6\. The effect of predilections\--motivations and attitudes.

Coherence effects are not isolated from noncognitive characteristics of
the task. Recently obtained findings strongly support the view that
coherence-based reasoning interacts with motivations. Not only do
people\'s choices comport with their desired goals, but the mental
models of the entire task tend strongly to cohere with the respective
outcome. In a separate set of studies we found that coherence effects
interact with preexisting attitudes to generate mental models that
cohere with those attitudes.

7\. The transitory nature of coherence.

The experimental evidence illustrates that coherence can be transitory.
Coherence shifts were found to decay one week after the task was
completed. At least in some conditions, then, coherence can be
understood as an ad hoc state that is constructed only to solve the task
at hand. Dissipation of coherence enables decision-makers to approach
new tasks unencumbered by previous coherence shifts. In subsequent
tasks, different, perhaps opposite, pressures may activate the same
variables, causing them to take on different values.

Under different circumstances, coherence effects may be more permanent.
Recurring coherence shifts may leave a stronger imprint, as repeated
shifts in background beliefs might operate as a form of learning. Thus,
for example, a judge who repeatedly presides over criminal cases in
which the rate of conviction is high (as it is in real life) might well
experience increasing reinforcement of beliefs about people\'s guilt,
and thus come to develop a guilt-prone attitudinal system. Further
experimentation is required to gain better insight into the duration of
coherence shifts.

**\*548** 8. Moderating (debiasing) coherence.

From a prescriptive point of view, an important experimental finding is
that coherence shifts can be reduced by means of a straightforward
moderating technique. [[\[FN111\]](#Document1zzFN_F111)]{.underline} A
moderating instruction to \"consider the opposite\" reduced coherence
shifts by about one-half, so that participants\' reasons for deciding as
they did were closer to their initial, pre-coherence perception of the
case. The fact that the technique is simple and can be self-administered
makes it a potentially powerful and expedient means of tempering the
effects of coherence-based reasoning.

Undoubtedly, coherence effects have their limits. While the observed
coherence shifts are substantial and highly significant from a
statistical standpoint, they do not reach extreme values.
[[\[FN112\]](#Document1zzFN_F112)]{.underline} Coherence shifts are
mediated by task-specific factors, most notably, by the degree of
ambiguity inherent in the task. Ambiguous variables are more amenable to
change; [[\[FN113\]](#Document1zzFN_F113)]{.underline} unambiguous
variables, such as indisputable facts and paramount principles are less
likely to shift. [[\[FN114\]](#Document1zzFN_F114)]{.underline} It is
also likely that coherence shifts are mediated by the idiosyncratic
characteristics of the decision-maker.
[[\[FN115\]](#Document1zzFN_F115)]{.underline}

It is also important to appreciate the exact implications of coherence
effects. Coherence shifts skew the mental models and generate **\*549**
an inflated sense of confidence even in close decisions, but it cannot
be said that the shifts necessarily result in objectively wrong
decisions, nor that they cause cardinal changes in the decision-maker\'s
own perceptions of the case.
[[\[FN116\]](#Document1zzFN_F116)]{.underline} They do, however, cause a
substantial increase in the risk of error in certain circumstances. The
four applications discussed in the next Part of the Article exemplify
such circumstances.

II\. Applications to Legal Decision Making

I now bring coherence-based reasoning to bear on the legal system. This
body of research offers a third view of the black box of legal decision
making, and thus provides a way to break the stifling and unconstructive
grip of the Rationalist and Critical approaches.

In previous writing, I applied this view to appellate judicial decision
making, aiming to understand the enigmatic argumentative style that
typifies legal opinions\--the fact that virtually every argument cited
converges to the same result. I argued that the exaggerated and lopsided
portrayal of the case is not an accurate reflection of the legal
materials; to a large degree, it is driven by the judge\'s skewed
perception of them. [[\[FN117\]](#Document1zzFN_F117)]{.underline} I
also argued that the resulting argumentative style has a harmful impact
on the legal culture it fosters.
[[\[FN118\]](#Document1zzFN_F118)]{.underline}

This Article focuses on the trial. Most trials are paradigmatic examples
of complex tasks. Fact-finders, typically jurors, are presented with a
host of evidence\--that is voluminous, fragmentary, incomplete,
ambiguous, and inconsistent\--from which they are expected to produce
**\*550** a categorical verdict.
[[\[FN119\]](#Document1zzFN_F119)]{.underline} The practices used to
conduct and review trials are based primarily, though not exclusively,
on the Rationalist paradigm, and thus do not always correspond to the
cognitive capabilities and limitations of legal decision-makers. In this
part of the Article, I present four situations in which coherence-based
reasoning causes systematic errors in trials. Understanding
coherence-based reasoning makes it possible to introduce interventions
and procedures to overcome these breakdowns and thus provide more
accurate and fair trial outcomes.

A possible objection to the following discussion is that the research
examines the cognitive processes of individuals, while verdicts are
decided by groups of jurors or panels of judges. Ample research shows
differences between decisions made by individuals and by groups.
[[\[FN120\]](#Document1zzFN_F120)]{.underline} This research, however,
does not demonstrate that groups are necessarily less susceptible to
bias and error. [[\[FN121\]](#Document1zzFN_F121)]{.underline} In the
context of jury verdicts, the research has shown repeatedly that group
verdicts tend to correspond closely to predeliberation individual
preferences, [[\[FN122\]](#Document1zzFN_F122)]{.underline} and there is
little reason to believe that group deliberation purges the preceding
coherence effects. [[\[FN123\]](#Document1zzFN_F123)]{.underline}

A. Correcting for Ignorance: The Timing of Jury Instructions

Jurors do not receive instructions on substantive law until late in the
trial. Our experimentation showed that coherence shifts precede the
making of the decision. Quite possibly, by the time jurors receive
instructions, their perception of evidence has already shifted to either
side of the issue, with a diminished chance of being affected by the
legal instruction. This problem can be alleviated by providing jurors
more extensive preliminary jury instructions.

Common law trials aspire to jury verdicts based on a thoughtful
application of the correct legal rules to evidence properly admitted at
trial. Hence, the trial is sequenced so that juries render their
verdicts only after exposure to the evidence and arguments presented by
both **\*551** parties, and only after receiving the appropriate legal
instructions from the judge. From a normative point of view, this design
makes perfect sense; its viability from a cognitive perspective,
however, is questionable.

The prevailing trial design rests on the assumption that the complex and
vast amount of testimony, presented over the course of days and weeks,
can be encoded, retained, and retrieved from memory in an unaltered
state. Suspended in a state of cognitive abeyance, the juror dutifully
awaits the formal announcement of the legal rules before starting to
make sense of the case. Only after the rules are introduced does the
juror retrieve the unadulterated evidence, sift relevant facts from
irrelevant ones, and begin to generate theories, develop preferences,
and lean toward a decision.

The findings from the coherence-based reasoning research are markedly
inconsistent with these assumptions. Recall that in a number of
experiments, we observed coherence shifts even when participants were
awaiting important evidence and were instructed to delay a decision.
Rather than waiting, the participants apparently processed the evidence
quite vigorously and shifted toward mental models that were skewed
toward either one of the verdicts.
[[\[FN124\]](#Document1zzFN_F124)]{.underline} The magnitude of these
predecisional shifts was roughly as strong as shifts observed in
full-fledged decisions. [[\[FN125\]](#Document1zzFN_F125)]{.underline}

These findings are consistent with research that shows a general human
tendency to make sense of one\'s social and physical worlds proactively,
even in the absence of specific processing goals.
[[\[FN126\]](#Document1zzFN_F126)]{.underline} Moreover, people are apt
to spontaneously develop a liking or disliking toward the objects of
their judgment. [[\[FN127\]](#Document1zzFN_F127)]{.underline} The
findings are consistent also with experiments with simulated jurors,
[[\[FN128\]](#Document1zzFN_F128)]{.underline} and with data obtained
from **\*552** real jurors serving in actual trials,
[[\[FN129\]](#Document1zzFN_F129)]{.underline} that show that
preferences for verdicts\-- and to some degree, also final
decisions\--can emerge during the evidence phase of the trial.

The fact that jurors develop preferences and make up their minds before
the case is submitted to them can have significant ramifications for the
decision. The decision-making process is strongly influenced by the
mental representation of the task variables. Incoming evidence becomes
integrated into the mental model and linked to other pieces of evidence.
The juror\'s understanding of the conceptual framework of the task
influences the manner in which each piece of evidence is incorporated
into the model. Ideally, jurors\' frameworks will be shaped by the legal
rule as instructed by the judge. The framework guides the juror as she
assesses the potential significance of each piece of evidence and
establishes its connections with the other evidence. For example, to
appreciate testimony about a complex chain of events that led to an
accident, the juror must have a correct understanding of tort liability,
including rules concerning duties of care, causality, contributory
negligence, and the like. To properly evaluate evidence about a criminal
defendant\'s liability for a robbery, one ought to be familiar with the
elements that constitute the crime. In the coherence experiments, there
was little doubt as to how each variable fit into the conceptual
framework, because the connections between the variables and the
verdicts were designed to be obvious. In real life, however, people are
often unfamiliar with the exact content of the legal rule. Expecting
jurors to make legally correct judgments without instructing them on the
law has been likened to introducing a person to the game of baseball and
asking him to determine who won the game before having explained the
rules. [[\[FN130\]](#Document1zzFN_F130)]{.underline} Worse yet,
experimental evidence **\*553** shows that people who lack familiarity
with the law tend to apply their often erroneous preconceptions about
the content of the rules. Such findings have been observed with
relatively familiar crimes such as burglary, kidnapping, and murder.
[[\[FN131\]](#Document1zzFN_F131)]{.underline} There is less reason to
expect accurate preconceptions when it comes to adjudicating antitrust
violations or Occupational Safety and Health Agency regulations.

There is a strong reason to suspect that applying misconceived rules is
bound to lead to unwarranted decisions.
[[\[FN132\]](#Document1zzFN_F132)]{.underline} Coherence-based reasoning
research suggests that by the time the judge divulges legal rules,
jurors\' mental models have already shifted, yielding strong
preferences, if not complete decisions. At that point, it is more
difficult to educate jurors as to the correct legal rules because the
misconceived rule is already integrated into a coherent and stable
mental model, and the evidence is skewed accordingly. This is not to say
that jurors cannot be corrected or swayed, but that a corrective effort
requires overcoming a certain degree of inertia. Recall that in the
Jason Wells \"switcher\" study, after eliciting participants\' tentative
leanings, we gave them additional evidence, yet a majority did not
switch their decision despite the strength of the newly revealed
evidence. [[\[FN133\]](#Document1zzFN_F133)]{.underline}

Familiarizing jurors with the correct legal rules before they encode the
evidence can increase the conformity of verdicts to those **\*554**
rules. Thus, I propose that jurors be provided with substantive
preliminary instructions. The instructions should be determined at a
pretrial conference. The judge should explain to the jury that these
preliminary instructions might well be supplemented and revised during
the trial, and that the later instructions will be decisive. The judge
may then add and revise the instructions during the trial to reflect
changes in the plaintiff\'s or prosecution\'s case, and to prepare the
jury for the defendant\'s case. Such updating and recapping of the
instructions would not differ much from the practice of interim
summations given by lawyers.

The idea of substantive preinstruction has received some attention from
legal scholars and practitioners,
[[\[FN134\]](#Document1zzFN_F134)]{.underline} and a handful of legal
psychologists have been studying the topic experimentally. The available
research can assist in assessing the benefits and costs of the proposal.

The primary advantage sought is an improvement in jurors\' comprehension
of the law, resulting in greater conformity between the legal rules and
the verdicts rendered. Based on the available evidence, the hypothesis
seems to be borne out as predicted by coherence-based reasoning theory.
In experiments with a complex tort case, preinstructed juries could
better differentiate among the plaintiffs, so that the awarded
compensation corresponded to the severity of the various plaintiffs\'
injuries. [[\[FN135\]](#Document1zzFN_F135)]{.underline} In experiments
based on criminal trials, participants who were instructed both before
and after a trial applied the legal instructions to factual situations
with greater accuracy. [[\[FN136\]](#Document1zzFN_F136)]{.underline} In
a study of actual juries that decided sixty-seven civil and criminal
cases in Wisconsin, jurors who were given preliminary instructions were
compared with jurors who were not preinstructed. The former group
reported finding the jury instructions more helpful to the performance
of their task. [[\[FN137\]](#Document1zzFN_F137)]{.underline}

**\*555** A second potential advantage of preinstruction concerns
jurors\' memory of the evidence. Coherence-based reasoning predicts that
preinstruction improves recall by providing jurors with a conceptual
framework that contributes to the associative relationship among the
facts of the case. The findings on this point have been positive
overall, with three out of four experiments demonstrating improved
recall. [[\[FN138\]](#Document1zzFN_F138)]{.underline}

A third potential advantage of preinstruction pertains to jurors who
somehow refrain from imposing preconceived views of the law onto the
evidence. Confronted with complicated evidence and unarmed with
knowledge of the appropriate conceptual basis for the looming decision,
these jurors might experience anxiety and feel ill-prepared for the
task. Research in basic psychology shows that performance of difficult
tasks is positively related to people\'s perceptions of their efficacy.
[[\[FN139\]](#Document1zzFN_F139)]{.underline} In such situations,
people are more likely to base their decisions on various heuristics and
stereotypes that could detrimentally affect the case at hand.
[[\[FN140\]](#Document1zzFN_F140)]{.underline} Preinstruction could thus
improve juror performance. Coherence-based reasoning research suggests
that **\*556** providing jurors with conceptual legal blueprints for
their mental models would enhance their sense of competence. The only
available evidence to this effect supports the prediction; jurors in the
Wisconsin study reported higher levels of perceived competence in
tackling their task. [[\[FN141\]](#Document1zzFN_F141)]{.underline}

A potential disadvantage of preinstruction is that the procedure will
complicate the trial, especially by making it hard for judges to predict
which instructions should be given.
[[\[FN142\]](#Document1zzFN_F142)]{.underline} Instructions that turn
out to be irrelevant in light of the subsequent evidence might somehow
affect verdicts. Though theoretically possible, the concern applies only
to the infrequent instances where a surprise renders the initial cause
of action or criminal charge irrelevant, without ending the trial by way
of a directed verdict. [[\[FN143\]](#Document1zzFN_F143)]{.underline}
Furthermore, the preliminary instructions will be conveyed as prefatory
and explicatory, not as conclusive statements of law. The judge will
forewarn jurors that changes are to be expected, and will have ample
opportunity to enter revisions.

A related objection is that the opportunity for counsel to submit
special requests for preinstruction might complicate preparation and
delay trials. But, in most cases, the jurisdiction\'s pattern jury
instructions are not a cause of dispute, and when they are contested,
clarification in advance might well be advantageous in helping lawyers
better plan their cases. Furthermore, any time spent on determining the
content of the preliminary instructions will likely be saved at the
post-trial phase. In the Wisconsin field experiment, for instance, the
twenty-nine participating judges were specifically asked about these
difficulties and denied finding them problematic.
[[\[FN144\]](#Document1zzFN_F144)]{.underline} Indeed, a majority of
these judges asserted their general belief that preinstruction increases
the fairness of the trial.
[[\[FN145\]](#Document1zzFN_F145)]{.underline}

Another important concern is that pretrial instructions might cause
systematic biases in favor of one side or the other. If, as I believe,
erroneous preconceptions are randomly distributed, corrective
instructions should result in a decrease in error that is evenly
distributed. **\*557** The sole type of instruction for which one might
expect an asymmetric effect is the heightened requirement of proof in
criminal trials. A preinstruction on the beyond a reasonable doubt
standard could be expected to lead jurors to scrutinize the
prosecution\'s evidence more thoroughly, thus lowering the conviction
rates. Though mixed, the experimental evidence on this matter generally
tends to refute this hypothesis,
[[\[FN146\]](#Document1zzFN_F146)]{.underline} presumably because most
people are relatively familiar with the beyond a reasonable doubt
standard, and are thus capable of employing it correctly without the aid
of judicial instructions. [[\[FN147\]](#Document1zzFN_F147)]{.underline}
Moreover, even if preinstruction on the requirements of proof did in
fact tip the balance, that would hardly be an undesirable outcome. It
would merely mean that criminal defendants would benefit from a
fundamental constitutional protection that had previously been
misapplied. The fear of systematic changes in the distribution of
verdicts due to preinstruction might well be a cause for bureaucratic
obstruction, but it hardly makes for a principled objection. It amounts
to a perpetuation of erroneous decisions due to misconceived legal rules
and jury ignorance of constitutional guarantees.

It has also been suggested that in criminal trials, preliminary
instructions might tip the balance in the favor of the prosecution.
Since the defense is bound to withhold its strategy until after the
presentation of the prosecution\'s evidence, jurors may initially
receive instructions that bear mostly on the prosecution\'s case. The
fear is that this might cause jurors to improperly focus their attention
on only half of the picture.
[[\[FN148\]](#Document1zzFN_F148)]{.underline} Indeed, during the first
part of the trial, jurors do fix their attention primarily on the
prosecution\'s case; that is simply because the bulk of the evidence is
devoted to that side. For the same reason, jurors concentrate more on
the defendant\'s case during the subsequent part of the trial. There is
little reason to believe that jurors\' **\*558** focal point will be
affected by the fact that they approach either part of the evidence with
a more accurate understanding of the law.

A final concern is that providing a conceptual framework at the
beginning of the trial might foster hypothesis-confirming reasoning,
which would result in premature decision making.
[[\[FN149\]](#Document1zzFN_F149)]{.underline} The little available
experimental evidence refutes that concern. The findings indicate that
preinstructed jurors tend to make their decisions at a later stage than
their post-instructed counterparts.
[[\[FN150\]](#Document1zzFN_F150)]{.underline}

The law with respect to preliminary instructions is rather barren. For
the most part, judges have broad discretion with respect to the form and
timing of jury instructions.
[[\[FN151\]](#Document1zzFN_F151)]{.underline} Preliminary instructions
are explicitly included or suggested in procedural law and pattern jury
instructions in some jurisdictions,
[[\[FN152\]](#Document1zzFN_F152)]{.underline} but not in others.
[[\[FN153\]](#Document1zzFN_F153)]{.underline} The little case law on
the topic has not exhibited any notable objection to the practice.
[[\[FN154\]](#Document1zzFN_F154)]{.underline} The key to the widespread
adoption of substantive preliminary instruction procedure lies mostly in
the hands of judges and lawyers.
[[\[FN155\]](#Document1zzFN_F155)]{.underline} **\*559** As with any
bureaucratic change, concerns born of unfamiliarity and fears about
administrative feasibility are bound to hinder reform efforts. The best
way to allay these anxieties\--and, indeed, to verify that they are
unwarranted\--is by implementing the change in an incremental manner,
while carefully monitoring its consequences. Worries of this kind should
not thwart improving the fairness and accuracy of trials.
[[\[FN156\]](#Document1zzFN_F156)]{.underline}

B. Atomism, Holism, and the Admissibility of Prejudicial Evidence

The second application of coherence-based reasoning theory to trial
procedure concerns a long-standing debate that goes to the heart of
evidence law\--whether fact-finders evaluate evidence in a holistic or
an atomistic manner. [[\[FN157\]](#Document1zzFN_F157)]{.underline} This
debate pertains to the ever-important and befuddling rule of relevancy
and its exceptions due to prejudicial impact.
[[\[FN158\]](#Document1zzFN_F158)]{.underline} Coherence-based reasoning
provides empirical support for the holistic view, but questions the
prescriptive corollary advocated by its proponents.

One approach to evidentiary inference is based on mathematical models
that capture the probabilistic value of the evidence. Most notable in
this line is the reliance on Bayes Theorem, which appears to have
attained prominence within mainstream evidence scholarship.
[[\[FN159\]](#Document1zzFN_F159)]{.underline} Bayesians posit that the
probability of an event can be derived algebraically by means of a
sequential multiplication of the probabilistic values of the event\'s
constitutive elements. [[\[FN160\]](#Document1zzFN_F160)]{.underline}
Verdicts are determined **\*560** by comparing the posterior likelihood
produced by the Bayesian computation with the numerical value assigned
to the respective standard of proof.
[[\[FN161\]](#Document1zzFN_F161)]{.underline} Mathematical approaches
are also described as atomistic, in that each piece of evidence is
individually evaluated, quantified, and entered at face value into the
calculus of inference. [[\[FN162\]](#Document1zzFN_F162)]{.underline}

Bayes Theorem relies heavily on syntactic assumptions, the most
important of which is that each piece of evidence is evaluated on its
own terms, and is affected neither by the other pieces of evidence
(unless the items are substantively interdependent) nor by the
conclusion of the process. This assumption relies in turn on a
conception of uni-directionality in human reasoning: inferences flow
from the individual pieces of evidence toward a computed judgment, but
the perception of the evidence is in no way affected in the reverse
direction. In other words, the evaluation of the evidence precedes, and
is thus entirely exogenous to, the process of making the judgment.

The alternative position conceives of juridical inference making in
holistic terms. According to this view, evidence is evaluated not as
isolated pieces, but rather in large cognitive structures, most
familiarly in the form of narratives, stories, or global accounts. The
sufficiency of holistic proof is evaluated not on the probabilistic
value of a single focal hypothesis, but rather, as advocated by Ronald
Allen, by a global comparative assessment of the competing evidential
accounts. [[\[FN163\]](#Document1zzFN_F163)]{.underline} This
\"Bayesioskeptic\" [[\[FN164\]](#Document1zzFN_F164)]{.underline}
approach proposes that legal fact-finding hinges on the relative
plausibility of the vying explanations offered at trial. In civil cases,
the fact-finder determines the facts by simply identifying **\*561** the
most plausible account. In criminal trials, she will convict only if the
prosecution provides an account of guilt that leaves no room for a
plausible account of innocence. A central claim of relative plausibility
theory is that it best comports to what jurors actually do.
[[\[FN165\]](#Document1zzFN_F165)]{.underline} The empirical work most
often cited in support for holism is Nancy Pennington and Reid Hastie\'s
\"story model\" research. [[\[FN166\]](#Document1zzFN_F166)]{.underline}

According to the story model, people make sense of complicated bodies of
evidence by constructing narratives, rather than by aggregating measures
of the strength of the raw evidence. Stories are structured around
episodes held together by certain types of causal and physical
relationships that explain the actors\' conduct and mental states. A
pervasive type of narrative structure is based on schemas of human
action: initiating events cause characters to respond in a variety of
ways and to form goals that then motivate subsequent actions. The
acceptance of a story is determined by its global strength based on four
certainty principles\--coverage, coherence, uniqueness, and
goodness-of-fit. Of the stories constructed from the evidence presented
at trial, a juror adopts as the best explanation for the events the one
that best meets these certainty principles.
[[\[FN167\]](#Document1zzFN_F167)]{.underline}

An interesting feature of the evidence debate is that most participants
tend to proclaim superiority on both descriptive and prescriptive
grounds. [[\[FN168\]](#Document1zzFN_F168)]{.underline} The shared
assumption seems to be that an atomistic**\*562** conception warrants an
interventionist set of rules tailored to regulate the admissibility of
each and every piece of evidence, whereas a holistic conception
justifies only minimal interference in the flow of evidence\--an
evidentiary regime known as \"free proof.\"
[[\[FN169\]](#Document1zzFN_F169)]{.underline}

Coherence-based reasoning research speaks to both the descriptive and
prescriptive dimensions of the evidence debate. The experimental results
contest the descriptive validity of the atomistic approaches by showing
that participants defy the syntactic rules of uni-directional inference.
The perception of evidence changes as the pieces interact with the
emerging verdict and indirectly also with one another; human reasoning
progresses bidirectionally, from evidence to conclusion and back to
evidence. [[\[FN170\]](#Document1zzFN_F170)]{.underline}

These experimental results favor the holistic approach of relative
plausibility theory. The fact that the evidentiary items on each of the
respective sides are found to shift together suggests that processing is
done in a global, rather than an atomistic, manner. The notion of
relative plausibility is also distinctly present in the skewed nature of
the mental models, in which the evidence for one side is perceived to be
highly plausible while the other subset is deemed weak. Moreover, the
confidence levels reported in the experimentation were strongly related
to the difference between the ratings of the inculpating and exculpating
evidence. In other words, the higher the discrepancy between the
plausibility of the verdicts, the higher the levels of confidence
reported. [[\[FN171\]](#Document1zzFN_F171)]{.underline} This ordinal
comparison between the accepted and the rejected version of facts is
unique to relative plausibility theory; Bayesian theories look only to a
cardinal comparison between the facts of the single focal hypothesis and
the standard of proof. [[\[FN172\]](#Document1zzFN_F172)]{.underline}

**\*563** The experimental results explain some empirical phenomena that
Bayesian researchers observe but cannot explain. In a frequently cited
experimental investigation by Bayesian advocates, David Schum and Anne
Martin found it \"(q)uite startling\" that unpredicted interdependence
appeared between evaluations of seemingly unrelated pieces of evidence.
[[\[FN173\]](#Document1zzFN_F173)]{.underline} Similarly, in another
experiment testing for Bayesian updating, experimenters were surprised
to find that ratings of prosecution evidence increased after the
presentation of the defendant\'s weak alibi.
[[\[FN174\]](#Document1zzFN_F174)]{.underline} These findings are
readily explainable as coherence effects that result from constraint
satisfaction processing. [[\[FN175\]](#Document1zzFN_F175)]{.underline}

Coherence research fits with the story model. Both approaches posit that
evidentiary conclusions are not derived from mathematical computations
of the independent values of raw evidence. Inferences, rather, are based
on constructed representations of coherence, and it is these constructed
representations that ultimately determine the verdicts. Coherence
research overcomes an important limitation of the story model. As
indicated by its name, the story model proposes that the representation
of evidence bears a distinct narrative structure. Pennington and
Hastie\'s results showed that participants\' stories were centered on a
narrative that captured the intentional and causal scheme of the
defendant\'s behavior\--intentions, psychological states, **\*564**
goals, and motivations. [[\[FN176\]](#Document1zzFN_F176)]{.underline}
But, in a range of evidentiary situations, the material facts \"may
concern a situation or state of affairs rather than a sequence of
events.\" [[\[FN177\]](#Document1zzFN_F177)]{.underline} A narrative of
human intentionality is of little relevance to negligence cases where
the contested issue is a failure in appreciating a risk, to
identification cases, or to cases in which the material facts concern
the physical conduct of the defendant, the quality of a product, the
extent of damages, and the like.
[[\[FN178\]](#Document1zzFN_F178)]{.underline}

With this concern in mind, the Jason Wells case was designed to contain
evidence that is entirely physical, circumstantial, and disjointed. Our
findings indicate that restructuring of cognitive representations is not
limited to stories that hinge on human intentionality. Coherence-driven
representations are found in the absence of such narrative
possibilities. [[\[FN179\]](#Document1zzFN_F179)]{.underline}
Furthermore, by relating coherence effects to constraint satisfaction
theory, coherence-based reasoning provides a deeper theoretical
explanation of holistic processing, thus enabling its extension to other
realms of reasoning. [[\[FN180\]](#Document1zzFN_F180)]{.underline}
While narrative structures might not be essential for holistic
processing, coherence shifts are likely to be particularly pronounced in
their presence. [[\[FN181\]](#Document1zzFN_F181)]{.underline}

The evidence debate has recently been joined by the Supreme Court in the
case of Old Chief v United States.
[[\[FN182\]](#Document1zzFN_F182)]{.underline} Appellant Old Chief had
previously been sentenced to five years\' imprisonment for committing an
assault that caused serious bodily injury. The current case concerned an
altercation in which he allegedly fired a gun. The **\*565** charges
included a violation of a law forbidding convicted felons from
possessing firearms. [[\[FN183\]](#Document1zzFN_F183)]{.underline} Old
Chief feared that if the jury were to learn of the full extent of his
previous assault, it would be more prone to convict him on the current
charges. He thus moved for an order prohibiting the prosecution from
revealing the nature of the previous conviction and the sentence imposed
on him; instead, he offered to stipulate to a prior conviction that
would meet the standard of the \"felon in possession\" law.
[[\[FN184\]](#Document1zzFN_F184)]{.underline} The trial court heeded
the prosecution\'s insistence on describing the nature of the previous
conviction to the jury in full. Old Chief was convicted, and his appeal
was rejected by the Ninth Circuit Court of Appeals. Writing for a
five-justice majority, Justice Souter reversed the conviction, finding
that in this specific case, the stipulation did not compromise the
prosecution\'s case. [[\[FN185\]](#Document1zzFN_F185)]{.underline}

Despite the narrow holding, this case has drawn a great deal of
attention due to the potential effects of its broad dictum on evidence
doctrine. First, Justice Souter openly rejected the atomistic view. An
item of evidence should not be considered an \"island,\" whose \"own
probative value and unfairly prejudicial risk (are) the sole reference
points\" of admissibility.
[[\[FN186\]](#Document1zzFN_F186)]{.underline} The opinion then goes on
to endorse a distinct version of holism:

Unlike an abstract premise, whose force depends on going precisely to a
particular step in a course of reasoning, a piece of evidence may
address any number of separate elements, striking hard just because it
shows so much at once; the account of a shooting that establishes
capacity and causation may tell just as much about the triggerman\'s
motive and intent. Evidence thus has force beyond any linear scheme of
reasoning, and as its pieces come together a narrative gains momentum,
with power not only to support conclusions but to sustain the
willingness of jurors to draw the inferences, whatever they may be,
necessary to reach an honest verdict.
[[\[FN187\]](#Document1zzFN_F187)]{.underline}

This account is consistent with coherence-based reasoning research and
other holistic approaches. Each piece of evidence is seen as having more
implications than its own isolated probativeness in a linear chain of
inference; the pieces come together to form a narrative that is stronger
than the sum of its parts. The opinion should be celebrated **\*566**
for taking a step toward a realistic reckoning with the capabilities and
limitations of human cognition.
[[\[FN188\]](#Document1zzFN_F188)]{.underline}

But the Court did more than embrace a particular concept of human
cognition. It followed its endorsement with a matching prescription:

(T)he prosecution may fairly seek to place its evidence before the
jurors, as much to tell a story of guiltiness as to support an inference
of guilt, to convince the jurors that a guilty verdict would be morally
reasonable as much as to point to the discrete elements of a
defendant\'s legal fault. [[\[FN189\]](#Document1zzFN_F189)]{.underline}

The doctrinal implication of the opinion lies in its innovative notion
of \"narrative relevance.\"
[[\[FN190\]](#Document1zzFN_F190)]{.underline} The Court suggested that
relevance\--and thus, presumably, also admissibility\--should not depend
solely on conventional tests of idiosyncratic probativeness.
[[\[FN191\]](#Document1zzFN_F191)]{.underline} Relevance, according to
the Court, can also be based on how the piece of evidence interacts with
the other evidence and how it contributes to the argument\'s overall
narrative force. In the ever-elusive domain of balancing probativeness
against prejudicial impact, the Court seems to be shifting the ground
toward a more lax inclusion of potentially prejudicial evidence, under
which prosecutors may \"tell a story of guiltiness.\"

To justify this approach, Justice Souter explained that since \"(j)ury
duty is usually unsought and sometimes resisted,\" telling a colorful
story helps to secure jurors\' \"obligation to sit in judgment.\"
[[\[FN192\]](#Document1zzFN_F192)]{.underline} **\*567** Next, he argued
that presenting the evidence in all its particularity is needed to
satisfy the jurors\' expectations about what proper proof should be.
[[\[FN193\]](#Document1zzFN_F193)]{.underline} Both of these reasons are
wanting and beside the point.
[[\[FN194\]](#Document1zzFN_F194)]{.underline} Rather, the opinion is
based primarily on the same enmeshment of the descriptive with the
prescriptive that pervades the academic debate.
[[\[FN195\]](#Document1zzFN_F195)]{.underline} Underlying the opinion is
the seemingly straightforward rationale that the prosecution should be
allowed to present its case in a manner that corresponds to the holistic
way in which jurors process evidence.

As the coherence experiments show, sufficiently strong pieces of
evidence can affect the entire mental model of the case through indirect
influences on other variables. For example, describing a defendant as
either benevolent or malevolent changed participants\' views of a range
of unrelated variables, including whether the Internet is analogous to a
newspaper. Similarly, the introduction of DNA evidence in the Jason
Wells theft case affected judgments of numerous other pieces of
evidence, including the veracity of an eyewitness\'s testimony and
beliefs about the accuracy of eyewitness identifications in general.
[[\[FN196\]](#Document1zzFN_F196)]{.underline} The holistic outcome is,
after all, an integration of the atoms of evidence that enter the mix.

Governing the admission of evidence by a regime of free proof because it
seems to comport with holistic processing could undermine the regulatory
purpose of evidence law. This superficial equation of is **\*568** with
ought bypasses the basic principle of seeking truth and balancing it
with other policy considerations. Thus, for example, prosecutors are
normally barred from presenting evidence of a defendant\'s criminal past
not because the jury would find the evidence useless for the
construction of a \"story of guiltiness.\"
[[\[FN197\]](#Document1zzFN_F197)]{.underline} We do so precisely
because juries tend to find these kinds of evidence all too useful,
leading to verdicts that are likely to be driven by questionable
judgments of the defendant\'s character rather than a fair-minded
assessment of the conduct in question.

Research in both attribution theory and stereotyping strongly supports
this proposition, showing that people harbor chronically activated
blueprints for the judgment of other people. Past conduct, perceived
character traits, and group identity are centrally embedded in these
mental models, and thus lead readily and often uncritically to
corresponding judgments. [[\[FN198\]](#Document1zzFN_F198)]{.underline}
Coherence-based reasoning suggests that these judgments will be
accompanied by coherence shifts in the perception of the evidence. The
appropriate test for admissibility of potentially prejudicial evidence
should continue to be the one endorsed by the Advisory Committee of
Federal Rules of Evidence: whether the specific piece of evidence has an
undue tendency to suggest a decision on an improper basis.
[[\[FN199\]](#Document1zzFN_F199)]{.underline}

The Court\'s proposition warrants attention because it extends beyond
questions of the admissibility of predicate offenses in the face of a
defendant\'s stipulation. The language of the opinion could open the
door to broader admissibility of other types of evidence, including
emotionally arousing information. Under Justice Souter\'s proposed
regime, graphic depictions of \"heartstrings and gore\" could be
admitted more liberally because such evidence adds richness of detail to
the story of guiltiness. [[\[FN200\]](#Document1zzFN_F200)]{.underline}

We should be wary of this doctrinal development. The coherence
experiments showed that affective dimensions can have a strong impact on
putatively rational decision making. Affect-laden outcomes sway mental
models so that the evidence is perceived to cohere with **\*569** the
verdict, while maintaining the subjective belief that the decision was
properly based on the evidence.
[[\[FN201\]](#Document1zzFN_F201)]{.underline} The Federal Rules of
Evidence provide sound guidance by drawing attention to the fact that
prejudicial evidence is commonly of an emotional nature. Indeed, the
effects of emotional influences on judgments of blame are clearly
demonstrated in simulations of criminal trials. Studies have shown that
emotionally arousing evidence can lead to higher levels of conviction,
even when the evidence has no probative value for the issue at hand.
[[\[FN202\]](#Document1zzFN_F202)]{.underline} As a result, litigants\'
fates are adversely affected by the emotional baggage that comes along
with nonprobative, or weakly probative, evidence.

Precisely because the holistic account of human cognition is correct,
its prescription is wrong. Due to the connectionist nature of the
decision-making process, extra vigilance is needed to contain the
adverse effect of potentially prejudicial evidence\--a task best
performed by an atomistic analysis. Litigants ought to be allowed to
tell their stories in court, but preserving the narrative integrity of
the stories should not come at the expense of eroding the safeguards
against the infiltration of prejudicial evidence.

C. Debiasing Criminal Jurors

The next application concerns the way in which fact-finders reach
verdicts in criminal cases. The findings of coherence shifts suggest
that even mild perceptions of evidence will polarize and thus seem
strongly probative. In this way, coherence effects can amplify the
probativeness of ambiguous evidence, elevating the confidence levels of
some jurors to beyond a reasonable doubt. Such an effect undermines the
protective function of the heightened standard of proof. I suggest
**\*570** correcting for this problem by introducing a jury instruction
to moderate the effects of coherence shifts.

Evidence has no meaningful independent existence but for the
decision-maker\'s perception of it. Thus, to understand how verdicts are
decided, one needs to understand how evidence is processed and
represented in the decision-maker\'s mind. Recall that at the vignette
phase of the Jason Wells experiments, the evidence was indistinct and
nonprobative of the defendant\'s guilt.
[[\[FN203\]](#Document1zzFN_F203)]{.underline} By the point of decision,
however, the perceptions of the evidence had shifted toward skewed
mental models that were strongly probative, and the decisions were
backed by high levels of confidence.

In civil trials, where the standard of proof is located near the point
of indifference, the impact of coherence shifts on determinations of
liability should be quite limited. An assessment that falls slightly
under or over the mid-point should suffice no less than an extreme
assessment in determining the corresponding verdict. Coherence shifts
polarize the reasons for deciding for either side, but they should not
make a substantial impact on the distribution of verdicts.

In criminal trials, however, the polarization can affect the
distribution of verdicts. There is no indication that the participants
who voted to convict Jason Wells violated the heightened standard of
proof. The evidence, as they perceived it, was strong and unambiguous;
they strongly agreed with the inculpating evidence and strongly
disagreed with the exculpating evidence, reporting high confidence in
their judgments. [[\[FN204\]](#Document1zzFN_F204)]{.underline} Yet,
virtually the same evidence was deemed weak and nonprobative before the
coherence shifts occurred. These shifts are responsible for the
amplification of the weak evidence into evidence demonstrating guilt
beyond a reasonable doubt.
[[\[FN205\]](#Document1zzFN_F205)]{.underline} This conclusion is also
supported by the finding that the participants whose evidence ratings
shifted most intensely were also most confident about their decisions.
[[\[FN206\]](#Document1zzFN_F206)]{.underline} For some of the
participants who decided to convict, this bolstered confidence was
apparently enough to surpass the beyond **\*571** a reasonable doubt
level. In other words, coherence shifts have the effect of undercutting
the protection promised by the heightened standard of proof.
[[\[FN207\]](#Document1zzFN_F207)]{.underline}

Assuming that coherence shifts do in fact contribute to the rate of
convictions, the normative implications of this phenomenon are not
obvious. The participants\' decisions to convict were, after all, made
in the normal manner in which people make decisions. There was nothing
illicit or prejudiced about these verdicts. The real dilemma is whether
or not to introduce a moderating mechanism into jury deliberation.

The idea of introducing a moderating intervention is bound to meet
resistance. It rubs against the intuition that the legal system should
refrain from disrupting jurors\' decision-making processes, especially
in the absence of any untoward influence. One of the justifications for
the use of juries is the premium we place on their common sense and
reliance on everyday reasoning.
[[\[FN208\]](#Document1zzFN_F208)]{.underline} Juries, then, should be
left to determine verdicts by their normal decision-making processes.
While attractive on its face, this deferential approach is
unjustifiable. As described above, verdicts are loosely based on the
initial perceptions of the evidence, but these perceptions are impacted
in turn by the emerging verdicts. This transformation enables choice,
but also entails a distortion of the perception of the evidence. The
strong probativeness of the mental model is an artifact of the cognitive
process, rather than a property of the evidence itself. It is
questionable whether we owe allegiance to this inflated sense of
coherence.

Furthermore, the phrasing of the proposed instruction\--\"please take
some time to seriously consider the possibility that the opposite side
has a better case\"
[[\[FN209\]](#Document1zzFN_F209)]{.underline}\--hardly amounts to an
unwarranted disruption or contamination of the decision-making process.
The need for the intervention stems from the fact that once people adopt
a skewed **\*572** mental model, they do not spontaneously consider the
opposite alternatives. The moderating intervention prods jurors to
engage in a mental step that is quite consistent with the expectation
that the jury engage in a diligent and thorough consideration of all
aspects of the case.

Prosecutors might argue that it is not undesirable that coherence
effects lead to heightened levels of conviction. Given the common law\'s
tendency to adapt and gravitate toward optimal social equilibria,
[[\[FN210\]](#Document1zzFN_F210)]{.underline} one could infer that the
extant conviction levels are the product of such an adaptation. The
thrust of the objection, then, is that if we debias jurors, we ought to
readjust the system to make it more amenable to convictions; the most
natural way to do so is by lowering the standard of proof.
[[\[FN211\]](#Document1zzFN_F211)]{.underline} This objection makes
little sense; it is doubtful that any aspect of the criminal justice
system can be traced historically to, or normatively justified by, the
purpose of maintaining a predetermined rate of conviction. The standard
of proof has a distinct lineage and function of providing a calculus for
trading off the costs of erroneous judgments. As stated in In re
Winship, [[\[FN212\]](#Document1zzFN_F212)]{.underline} it offers an
\"assessment of the comparative social disutility\" of trial errors.
[[\[FN213\]](#Document1zzFN_F213)]{.underline} Blackstone\'s adage that
\"it is better that ten guilty persons escape, than that one innocent
suffer,\" [[\[FN214\]](#Document1zzFN_F214)]{.underline} is a
cornerstone in legal doctrine. It is consistent with decision theoretic
analyses, [[\[FN215\]](#Document1zzFN_F215)]{.underline} as well as with
assessments observed in empirical studies.
[[\[FN216\]](#Document1zzFN_F216)]{.underline} Lowering the standard
expresses an acceptance of a higher ratio of erroneous convictions. But
there is no reason for such an acceptance.

**\*573** Another objection is that a moderating intervention is
unnecessary because its function is already taken care of by the
adversarial nature of the trial; even when the arguments of defense
attorneys fail to sway jurors, they might nonetheless moderate the
coherence effect. Although advocates\' arguments may conceivably have a
moderating effect, the research suggests that it will be a limited one.
Recall that in both the Quest and Jason Wells cases, participants were
presented with the arguments by both lawyers before being asked to
decide the verdict. Yet, we observed substantial coherence shifts.
Research on persuasion also shows that the effectiveness of a persuasive
message depends upon the target\'s perception of the source. Most
notably, persuasion is adversely affected when the source is deemed to
lack credibility. [[\[FN217\]](#Document1zzFN_F217)]{.underline} Thus, a
juror is not likely to respond to the urging of an advocate for the
disbelieved party, especially when the juror is already close to making
up her mind. Moreover, given the lopsidedness of the juror\'s
representation, the opposing advocate\'s arguments might appear to be
extreme, and thus become even less credible.
[[\[FN218\]](#Document1zzFN_F218)]{.underline} There is also a danger
that the arguments will backfire; in some situations, resistance to
persuasion can entrench one\'s position.
[[\[FN219\]](#Document1zzFN_F219)]{.underline}

Another objection is that the jury instructions given at trial render a
moderating procedure unnecessary. Jury instructions contain a barrage of
directives and admonitions intended to prevent error and bias in verdict
decisions. For example, judges tell jurors to presume innocence, to base
their decisions on all the relevant evidence, to give careful attention
to the testimony and exhibits, and to keep an open **\*574** mind until
the entire case has been submitted for deliberation.
[[\[FN220\]](#Document1zzFN_F220)]{.underline} However desirable, these
instructions are unlikely to have an appreciable impact on coherence
shifts. The debiasing experiment indicates that coherence effects are
moderated only when participants are specifically instructed to actively
generate an alternative mental representation.
[[\[FN221\]](#Document1zzFN_F221)]{.underline} Judicial instructions
contain no such directives.

Even if we were to introduce a moderating instruction, its effectiveness
would be unclear. There is indeed doubt whether jury instructions
produce their intended effects. Research has shown that many
instructions are not properly comprehended by jurors,
[[\[FN222\]](#Document1zzFN_F222)]{.underline} while others demand that
jurors perform tasks that are cognitively very difficult, if not
outright impossible. [[\[FN223\]](#Document1zzFN_F223)]{.underline}
Neither of these difficulties applies to the moderating intervention I
have proposed; the instruction is clear and readily feasible. The
effectiveness of the proposed instruction might also be hindered by
limits of human attention. Jury instructions are already very long, they
are often communicated poorly, and there is little doubt that jurors
cannot apply or even recall them in full.
[[\[FN224\]](#Document1zzFN_F224)]{.underline} Thus, it is quite
possible that an additional instruction will simply fall by the wayside.
Therefore, I suggest that judges take simple steps to increase the
instruction\'s effectiveness, including repeating it, placing it at the
beginning and end, resorting to emphatic language, and even requiring
jurors to write down reasons supporting the opposite conclusion.

In sum, the adverse effects of coherence shifts on criminal verdicts
merit consideration of a moderating instruction.
[[\[FN225\]](#Document1zzFN_F225)]{.underline}

**\*575** D. Reducing Error in Harmless-Error Analysis

Legal decision-makers rarely have a choice as to the nature of their
tasks. One notable exception is appellate review of harmless error, a
doctrine that has been the subject of a jurisprudential split between
two modes of analysis. One approach focuses on the impact of the error
on the trial outcome, and the other hinges on assessing guilt as it
appears from the remaining, presumably untainted, evidence.
Coherence-based reasoning research indicates that the latter is more
prone to erroneous judgments.

Harmless error is one of the most frequently discussed issues in
criminal appeals. [[\[FN226\]](#Document1zzFN_F226)]{.underline} The
power of appellate courts to set aside lower court verdicts is of
crucial importance to the administration of justice.
[[\[FN227\]](#Document1zzFN_F227)]{.underline} The harmless-error
doctrine is a direct and powerful means by which appellate courts
regulate and censure trial judges, prosecutors, and police
investigators. Though it applies similarly to criminal and civil law,
the following discussion will focus on the former, where it is more
frequently litigated and more hotly contested.

While the right to a fair trial is a fundamental constitutional right,
the ideal, error-free trial proves to be rather elusive in practice.
[[\[FN228\]](#Document1zzFN_F228)]{.underline} The conflicting interests
derive from Herbert Packer\'s dichotomy between the Crime Control and
Due Process models of the criminal process.
[[\[FN229\]](#Document1zzFN_F229)]{.underline} One obviously crucial
objective of the trial is to make accurate factual determinations as to
the question of the defendant\'s guilt or innocence.
[[\[FN230\]](#Document1zzFN_F230)]{.underline} Naturally, this objective
is frustrated when true determinations of guilt are reversed due to
inconsequential investigative or trial flaws.
[[\[FN231\]](#Document1zzFN_F231)]{.underline} Yet another principal
objective of the trial is to enforce the **\*576** safeguards owed to
criminal defendants. [[\[FN232\]](#Document1zzFN_F232)]{.underline}
Letting convictions stand despite failings of the officers of the
criminal justice system increases trial error and diminishes the
judiciary\'s ability to deter the recurrence of such flaws.
[[\[FN233\]](#Document1zzFN_F233)]{.underline} In the long run,
consistent rebukes by appellate courts would have a cleansing effect
that both protects defendants\' rights and results in an increase in
trial accuracy. [[\[FN234\]](#Document1zzFN_F234)]{.underline} Both
sides to the debate claim correctly that inattention to their respective
objective is bound to erode the public\'s confidence in the criminal
justice system. [[\[FN235\]](#Document1zzFN_F235)]{.underline}

Needless to say, these objectives are not amenable to an easy balancing
judgment, and the terse language of the Federal Rules of Criminal
Procedure offers little guidance.
[[\[FN236\]](#Document1zzFN_F236)]{.underline} Devising the appropriate
test for harmless-error analysis has been the topic of much
jurisprudential contention.
[[\[FN237\]](#Document1zzFN_F237)]{.underline} In grappling with this
task, courts have analyzed **\*577** cases along various dimensions,
including the constitutional nature of the error,
[[\[FN238\]](#Document1zzFN_F238)]{.underline} the degree of certainty
of harmfulness, [[\[FN239\]](#Document1zzFN_F239)]{.underline} and since
Arizona v Fulminante, [[\[FN240\]](#Document1zzFN_F240)]{.underline} the
classification of the error as \"structural\" or mere \"trial error.\"
[[\[FN241\]](#Document1zzFN_F241)]{.underline}

Most of the judicial and scholarly attention has focused on yet another
dimension\--whether the harm should be determined based on the effect of
the error itself or on the remainder of the evidence.
[[\[FN242\]](#Document1zzFN_F242)]{.underline} According to the rule
announced in Chapman v California,
[[\[FN243\]](#Document1zzFN_F243)]{.underline} the harmless-error test
hinges on the reviewing judge\'s assessment of the impact the error had
on the jury\'s verdict. [[\[FN244\]](#Document1zzFN_F244)]{.underline}
In contrast to this error-focused approach,
[[\[FN245\]](#Document1zzFN_F245)]{.underline} Harrington v California
[[\[FN246\]](#Document1zzFN_F246)]{.underline} proposes that the
reviewing judge should assess whether the conviction would still have
resulted in the absence of error.
[[\[FN247\]](#Document1zzFN_F247)]{.underline} According to this
guilt-focused approach, **\*578** the error itself plays a marginal
role; the analysis hinges rather on the strength of the remainder of the
evidence. [[\[FN248\]](#Document1zzFN_F248)]{.underline} As long as the
unchallenged evidence provides solid grounds for conviction, even grave
errors will be deemed harmless.

Over the past thirty-five years, the Burger and Rehnquist Courts have
gradually expanded the doctrine of harmless error,
[[\[FN249\]](#Document1zzFN_F249)]{.underline} with fewer flawed trials
reversed. [[\[FN250\]](#Document1zzFN_F250)]{.underline} A brief
flirtation with the error-focused approach in Sullivan v Louisiana
[[\[FN251\]](#Document1zzFN_F251)]{.underline} aside, the Court usually
relies on the Harrington guilt-focused test.
[[\[FN252\]](#Document1zzFN_F252)]{.underline} Legal scholarship, on the
other hand, has generally repudiated the guilt-focused approach. Critics
contend that reviewing the entire record on appeal undermines the right
to a trial by jury, is unnecessarily speculative, and is based on
incomplete accounts of the evidence.
[[\[FN253\]](#Document1zzFN_F253)]{.underline}

By itself, coherence-based reasoning research cannot resolve the
jurisprudential dispute across the entire spectrum of harmless-error
**\*579** cases. It can, however, offer a strong reason for preferring
the error-focused approach in cases that involve an erroneous
introduction of inadmissible evidence at trial, such as a coerced
confession, hearsay, prejudicial evidence, or a Bruton violation.
[[\[FN254\]](#Document1zzFN_F254)]{.underline} In these cases, the
reviewing judge is of course privy to the content of the contested
evidence. Coherence-based reasoning presents the possibility that having
been exposed to the entire record, judges might be influenced by the
impermissible evidence. As discussed above, coherence shifts are
effectuated via intricate interconnections, so that variables can
influence other variables to which they are not directly related.
Sufficiently strong pieces of evidence can affect the entire mental
model of the case, indirectly changing the perceptions of unrelated
pieces of evidence. [[\[FN255\]](#Document1zzFN_F255)]{.underline} Since
coherence effects occur without awareness,
[[\[FN256\]](#Document1zzFN_F256)]{.underline} the judge will decide in
accordance with her perception of the evidence, which, unbeknownst to
her, has likely been skewed by the illicit variable.
[[\[FN257\]](#Document1zzFN_F257)]{.underline} Thus, the guilt-focused
approach is undermined by the danger that the supposedly untainted
remainder of the evidence is anything but untainted. In criminal trials,
where inadmissible evidence is invariably prosecution evidence,
guilt-focused analysis will tend to lead to dubious affirmations of
convictions.

This concern is strongest in cases where there are independent reasons
for doubting the underlying veracity of the other evidence. Take for
example the case of Milton v Wainwright,
[[\[FN258\]](#Document1zzFN_F258)]{.underline} where the Court held
harmless an impermissible surreptitious interrogation in violation of a
defendant\'s Massiah right.
[[\[FN259\]](#Document1zzFN_F259)]{.underline} Basing its decision on an
extensive examination of the trial record, the Court found what it
considered to be overwhelming evidence of guilt, most notably three
confessions made by the defendant prior to the indictment. Those
confessions, however, were themselves of questionable reliability
because they were obtained by dubious means. Indeed, as the dissent
pointed out, the likely reason for conducting the surreptitious
investigation was that those confessions might not have held up in
court. [[\[FN260\]](#Document1zzFN_F260)]{.underline} The bootstrapping
in this case is apparent: the illicit interrogation was held harmless
based on the strength of the confessions, while it is quite possible
**\*580** that the veracity of the confessions was bolstered by the
information obtained in the illicit interrogation.
[[\[FN261\]](#Document1zzFN_F261)]{.underline}

The practical differences between the two analytical approaches are
unlikely to be as stark as implied by the doctrinal debate. In all
cases, the judge is aware of the evidence in question, and there is
ample experimental evidence showing that people simply cannot shut off
knowledge at will. [[\[FN262\]](#Document1zzFN_F262)]{.underline} Quite
possibly, error-focused analyses are not completely immune from
contamination: due to coherence effects, the impermissible evidence can
make the error seem less egregious. However, the narrower the judgment,
the less susceptible it is to coherence effects. The fewer the
dimensions of the decision, the more likely that the choice will be
based on the decision-maker\'s evaluations and beliefs that precede, and
are thus exogenous to, the decision itself. Furthermore, unlike
assessments of the entire record, the harmfulness of errors is
relatively commensurable and classifiable according to a set of rules
and standards. [[\[FN263\]](#Document1zzFN_F263)]{.underline} Precursors
of such a scheme can be discerned from some Supreme Court decisions.
[[\[FN264\]](#Document1zzFN_F264)]{.underline}

Harmless-error analysis pertains also to cases that do not involve
admissibility of evidence, such as when the trial contained a faulty
jury instruction, an improper comment about the defendant\'s failure to
testify, or a violation of the defendant\'s Confrontation Clause rights.
In the absence of impermissible evidence, there is no direct danger of
contamination of the remainder of the evidence through indirect
coherence effects. Therefore, coherence-based reasoning does not offer a
strong prescription. It does, nonetheless, provide some unique insights
into the jurisprudential dilemma by adding weight to the error-based
approach. These observations apply equally to evidentiary and
non-evidentiary errors.

First, recall that appellate reversals serve important constitutional
functions by condemning the infringement of the defendant\'s rights;
educating police investigators, prosecutors, and trial judges; and
deterring them from future violations. Coherence-based reasoning
highlights the extent to which these functions are compromised when
errors are declared harmless. A basic finding of the research is that
the **\*581** variables that support the defeated alternative are
dismissed, rejected, or ignored. In other words, the losing values and
principles are devalued.

In some cases, the devaluation is subtle, reflected only in the tone of
the opinion, failure to mention the importance of the right denied by
the error, selectivity in sources cited, and the like.
[[\[FN265\]](#Document1zzFN_F265)]{.underline} In other cases, however,
the devaluation can be quite glaring, such as in Darden v Wainwright,
[[\[FN266\]](#Document1zzFN_F266)]{.underline} where the Court
marginalized the conduct of a prosecutor who repeatedly expressed his
wish to see the defendant get \"blown away by a shotgun,\"
[[\[FN267\]](#Document1zzFN_F267)]{.underline} and in Arizona v
Fulminante, where, relying on a questionable assertion about the impact
of involuntary confessions, the Court trivialized the legal significance
of having them admitted into the record.
[[\[FN268\]](#Document1zzFN_F268)]{.underline} The Court has even gone
so far as to devalue the significance of the harmless-error doctrine
itself. [[\[FN269\]](#Document1zzFN_F269)]{.underline}

**\*582** Under the guilt-focused approach, findings of harmfulness are
influenced primarily by the strength of the evidence, which is
essentially unrelated to the egregiousness of the error. Strong evidence
of guilt can trump even grave error and misconduct. This arbitrary
relationship between the strength of the evidence and the gravity of
constitutional violation leads to an ad hoc jurisprudence that undercuts
the expressive, educational, and deterrent functions of appellate
review. A doctrine based on error-focused analysis would likely spur a
jurisprudence that would better achieve these goals.
[[\[FN270\]](#Document1zzFN_F270)]{.underline} Second, focusing on the
evidence of guilt can have the unintended effect of arousing the
judge\'s anger toward the defendant. As Judge Edwards describes, \"A
wrong, often a grievous wrong, has occurred, and the defendant, by all
appearances, is responsible. It is, therefore, to be expected that the
desire to punish the guilty will frequently prevail over the need to
honor individual rights.\"
[[\[FN271\]](#Document1zzFN_F271)]{.underline} Empirical research
suggests that upon witnessing injustice, people display a need to
re-establish a sense of justice and social order, especially in light of
the possibility that the misdeed will go unpunished. It has been shown
that exposure to anger-provoking stimuli increases the tendency to blame
other people for ambiguous events and to neglect alternative
explanations and possible mitigating circumstances.
[[\[FN272\]](#Document1zzFN_F272)]{.underline} These findings prevail
even when the target of the judgment has not been identified as the
person who caused the anger-provoking event.
[[\[FN273\]](#Document1zzFN_F273)]{.underline} The experimental finding
that coherence effects **\*583** can be driven by affective states
explains how a state of anger can lead to misperceptions of the
evidence. [[\[FN274\]](#Document1zzFN_F274)]{.underline} Dwelling on the
often-troubling details of the criminal event can arouse the judge\'s
anger. In close cases, with the defendant somehow implicated in the
crime and with no one else to blame, there is a danger that the judge\'s
mental representation of the case will shift toward supporting a
conclusion of guilt.

Three final points are in order. First, it should not be expected that
error-focused analyses entail automatic reversals of convictions. There
are ample examples in which error-focused analysis has led to findings
of harmlessness. [[\[FN275\]](#Document1zzFN_F275)]{.underline} Second,
while this discussion has focused on the criminal setting, it is in
principle applicable to the civil setting as well. Finally, it might be
the case that the type of analysis endorsed by the judge bears no real
impact on the actual decision. Judges may simply use the guilt-focus and
error-focus terminology as a label for decisions to uphold and reverse
trial court verdicts. However, to the extent that stated doctrine
influences decisions made, judges would be well advised to accommodate
for the impact of coherence-based reasoning on their decisions.

Conclusion

Coherence-based reasoning offers a much-needed alternative to the
stalemate between Rationalist and Critical models of legal decision
making. Unlike those two approaches, this body of experimental research
offers a glimpse into the black box, dispelling both the sanguine and
disparaging views of legal decision making. Decisions and inferences do
not conform to models of rationalism inspired by logical forms of
inference making, nor are they based on consciously disingenuous,
biased, or backward reasoning. Complex decisions are solved rather by
nuanced cognitive processes that progress bidirectionally between
premises and facts on the one hand, and conclusions on the other.
Ultimately, people make decisions through what appears to be a **\*584**
rational-like choice in which a strong alternative is straightforwardly
preferred over its rival. However, this dominance is the product of an
unconscious cognitive process that reconstructs and transforms difficult
and complex decisions into easy ones by amplifying one alternative and
deflating the other. This transformation of the mental model of the
decision lies at the heart of the decision-making process.

One objective of this Article has been to elucidate the implications of
coherence-based reasoning for four important aspects of the trial. I
argued that in each of these domains, the design of the trial is
premised on erroneous assumptions about human cognition, and that these
failings lead to systematic errors. Crucially, I emphasized that these
failings are not immutable. Coherence-based reasoning offers not only a
set of critical tools, but constructive ones too. By identifying the
cognitive phenomena that lie at the root of the failings, we can devise
interventions and introduce procedures that should make the
decision-making process better fit the legal ideals it is intended to
serve. First, I suggested that giving juries more extensive instructions
at the start of the trial will make for more legally accurate decisions.
Second, the research contributes to the central debate in evidence law
between holistic and atomistic approaches. I argued that the endorsement
of holism as a descriptive matter does not warrant prescriptive
positions advocated by its proponents. Third, I suggested that juries in
criminal trials be given a simple instruction to temper the contribution
of coherence effects to the likelihood of conviction. Finally, I
suggested reasons that weigh against the Supreme Court\'s approach to
harmless-error analyses.

Another objective of this Article has been to introduce legal scholars
to a body of research, which has been published thus far in journals of
experimental psychology. Coherence-based reasoning is highly relevant to
legal decision making. The applicability of this research to the law
extends well beyond the four trial issues discussed here and the issue
of appellate judging that I have explored in previous work.
[[\[FN276\]](#Document1zzFN_F276)]{.underline} The theory and its
underlying research have already been applied by other legal scholars to
explain how fact-finders combine the many goals and values they seek in
the determination of a verdict,
[[\[FN277\]](#Document1zzFN_F277)]{.underline} the effects of
stereotypes in the context of advocacy,
[[\[FN278\]](#Document1zzFN_F278)]{.underline} the development **\*585**
and maintenance of cultural beliefs,
[[\[fn279\]](#Document1zzFN_F279)]{.underline} AND THE CHOICE among
competing conceptual systems in constitutional law.
[[\[FN280\]](#Document1zzFN_F280)]{.underline}

A few brief examples may suggest the potential scope for future
applications. The research sheds light on a longstanding dilemma in the
doctrine of collateral estoppel.
[[\[FN281\]](#Document1zzFN_F281)]{.underline} Coherence-based reasoning
counsels a more extensive use of special verdicts in civil trials,
[[\[FN282\]](#Document1zzFN_F282)]{.underline} and it gives reasons to
consider special verdicts even in some types of criminal trials.
[[\[FN283\]](#Document1zzFN_F283)]{.underline} The research can also
shed light on ongoing debates concerning larger jurisprudential issues,
such as the use of rules versus standards.
[[\[FN284\]](#Document1zzFN_F284)]{.underline} These applications may
lead to different conclusions depending **\*586** on the institutional
setting within which the decision is made, particularly with respect to
the institutional possibilities for implementing debiasing procedures.

Additional research applies to a number of specific kinds of legal
decision making. The findings from the experiment Dixon v Providential
Insurance shed new light on the behavior of legal actors in pre-trial
negotiations. [[\[FN285\]](#Document1zzFN_F285)]{.underline} The horse
race study briefly mentioned above offers insight into the issue of
gambling behavior. [[\[FN286\]](#Document1zzFN_F286)]{.underline} The
findings showed that novices and experts alike tend to distort the
probability of winning toward optimistic overconfidence. This means that
gambling establishments benefit considerably from a cognitive
distortion. These findings should contribute to the debate surrounding
legal regulation of gambling, particularly in the context of state
lotteries.

With more experimentation underway, the theory harbors potential for
providing unique insight to additional legal applications. I hope that
the exposure to this burgeoning body of research will encourage legal
scholars to incorporate it further into the analysis of legal decision
making. Doing so should provide legal discourse with sharper critical
tools and more constructive proposals for reform.

[[\[FNd1\]](#Document1zzFN_Bd1)]{.underline}. Associate Professor,
University of Southern California Law School. This Article and the
underlying experimental research were supported by the National Science
Foundation, grants SES-0080424 and SES-0080375, and by a USC Law School
summer research stipend. I thank my collaborators, Keith Holyoak and
Steve Read, for the stimulating and gratifying path we have taken
together. For thoughtful comments on this Article and on much of the
underlying research, I thank Scott Altman, Jody Armour, Yochai Benkler,
Gary Blasi, Mary Dudziak, Catherine Fisk, Sam Fraidin, Ron Garet, Beth
Garrett, Ariela Gross, Dan Kahan, Greg Keating, Dan Klerman, Russell
Korobkin, Tom Lyon, Andrei Marmor, Ed McCaffery, Tamara Piety, Elyn
Saks, Mike Shapiro, Larry Simon, Dave Slawson, Nomi Stolzenberg, and
Eric Talley. For superb research, I thank Aaron Brownstein, Dan
Krawczyk, Lien Pham, Adam Scardina, Chad Snow, and Carey Stone. As
always, the staff of the USC Law School Library has been terrifically
helpful. I owe special thanks to my mentors, Dan Gilbert, Martha Minow,
Lew Sargentich, and Henry Steiner. Correspondence welcome:
dsimon@law.usc.edu.

[[\[FN1\]](#Document1zzFN_B1)]{.underline}. See Oliver Wendell Holmes,
Jr., The Common Law 1 (Little, Brown 1881).

[[\[FN2\]](#Document1zzFN_B2)]{.underline}. \"To some extent, we are all
Legal Realists now.\" Joseph William Singer, [[Legal Realism Now, 76 Cal
L Rev 465, 467
(1988)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1107&FindType=Y&ReferencePositionType=S&SerialNum=0101992955&ReferencePosition=467)]{.underline},
reviewing Laura Kalman, Legal Realism at Yale: 1927-1960 (North Carolina
1986). See also Gary Peller, The [[Metaphysics of American Law, 73 Cal L
Rev 1151, 1152
(1985)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1107&FindType=Y&ReferencePositionType=S&SerialNum=0102032429&ReferencePosition=1152)]{.underline}
(discussing the development of American legal thought from formalism to
realism).

[[\[FN3\]](#Document1zzFN_B3)]{.underline}. Providing specific citations
to the language of logic would be beside the point given its ubiquitous
presence in legal opinions and scholarship. For an exemplary
instructional text, see Ruggero J. Aldisert, Logic for Lawyers: A Guide
to Clear Legal Thinking (National Institute for Trial Advocacy 3d ed
1997).

[[\[FN4\]](#Document1zzFN_B4)]{.underline}. See, for example, Steven D.
Smith, [[Believing Like a Lawyer, 40 BC L Rev 1041, 1120
(1999)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1101&FindType=Y&SerialNum=0115734859)]{.underline}
(describing lawyers\' \"puzzling . . . combination of skeptical
sophistication and apparent naiveté\" in claiming that we are all legal
realists while continuing to argue in modes of formalism); Pierre
Schlag, [[Law and Phrenology, 110 Harv L Rev 877, 902-06
(1997)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3084&FindType=Y&ReferencePositionType=S&SerialNum=0107307989&ReferencePosition=902)]{.underline}
(describing the persistence of the Langdellian paradigm in contemporary
jurisprudence); Paul Gewirtz, On \"[[I Know It When I See It,\" 105 Yale
L J 1023, 1042
(1996)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1292&FindType=Y&ReferencePositionType=S&SerialNum=0106073076&ReferencePosition=1042)]{.underline}
(stating that the typical opinion is \"marked by a rhetoric of
certainty, inevitability, and claimed objectivity\"); J.M. Balkin,
[[Some Realism about Pluralism: Legal Realist Approaches to the First
Amendment, 1990 Duke L J 375,
385](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1133&FindType=Y&ReferencePositionType=S&SerialNum=0101359027&ReferencePosition=385)]{.underline}
(noting that First Amendment jurisprudence has only recently embraced
legal realism); Lawrence Lessig, The [[Regulation of Social Meaning, 62
U Chi L Rev 943, 946 n 12
(1995)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3039&FindType=Y&ReferencePositionType=S&SerialNum=0105616394&ReferencePosition=946)]{.underline}
(agreeing with Balkin that First Amendment jurisprudence is
predominantly formalistic); Gerald B. Wetlaufer, [[Rhetoric and Its
Denial in Legal Discourse, 76 Va L Rev 1545, 1562
(1990)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1359&FindType=Y&ReferencePositionType=S&SerialNum=0101390586&ReferencePosition=1562)]{.underline}
(stating that whenever possible, judicial opinions take the form of
\"deductive, syllogistic proofs\"); Richard A. Posner, The
[[Jurisprudence of Skepticism, 86 Mich L Rev 827, 865
(1988)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1192&FindType=Y&ReferencePositionType=S&SerialNum=0102032223&ReferencePosition=865)]{.underline}
(stating that even in tough cases, most judicial opinions \"depict the
process of reasoning as a logical deduction\"); Richard A. Wasserstrom,
The Judicial Decision: Toward a Theory of Legal Justification 16-17
(Stanford 1961) (stating that judges continue to make decisions
\"dictated by prior rules applied in accordance with canons of formal
logic\").

[[\[FN5\]](#Document1zzFN_B5)]{.underline}. The bulk of this research
has been performed by Keith Holyoak, Steve Read, and me. See Keith J.
Holyoak and Dan Simon, Bidirectional Reasoning in Decision Making by
Constraint Satisfaction, 128 J Exper Psych: Gen 3 (1999); Dan Simon, et
al, The Emergence of Coherence over the Course of Decision Making, 27 J
Exper Psych: Learning, Memory & Cognition 1250 (2001); Dan Simon and
Keith J. Holyoak, Structural Dynamics of Cognition: From Consistency
Theories to Constraint Satisfaction, 6 Personality & Soc Psych Rev 283
(2002); Stephen J. Read, Chadwick J. Snow, and Dan Simon, Constraint
Satisfaction Processes in Social Reasoning, in Richard Alterman and
David Kirsh, eds, Proceedings of the 25th Annual Conference of the
Cognitive Science Society 964, online at http://
homepage.psy.utexas.edu/homepage/staff/Parlee/confproc/bost03/cogsci03/index.html
(visited Apr 4, 2004).

Additional research is in the process of publication. See Dan Simon,
Daniel C. Krawczyk, and Keith J. Holyoak, Construction of Preferences by
Constraint Satisfaction, Psych Sci (forthcoming 2004) (on file with
author); Aaron L. Brownstein, Stephen J. Read, and Dan Simon, Effects of
Individual Expertise and Task Importance on Pre-decision Reevaluation of
Alternatives, Personality & Soc Psych Bull (forthcoming 2004) (on file
with author); Dan Simon, Chadwick J. Snow, and Stephen J. Read, The
Redux of Cognitive Consistency Theories: Evidence Judgments by
Constraint Satisfaction, J Personality & Soc Psych (forthcoming 2004);
Aaron L. Brownstein, Dan Simon, and Stephen J. Read, The Effects of
Cognitive Constraint Satisfaction on Betting Decisions (in progress) (on
file with author); Dan Simon, Chadwick J. Snow, and Stephen J. Read, The
Self-Serving Bias Up Close (under preparation).

[[\[FN6\]](#Document1zzFN_B6)]{.underline}. John Dewey protested that
the trouble with this syllogism is that while it \"sets forth the
results of thinking, it has nothing to do with the operation of
thinking.\" John Dewey, Logical Method and Law, 10 Cornell L Q 17, 22
(1924). He spoke also of the \"absurd because impossible proposition
that every decision should flow with formal logical necessity from
antecedently known premises.\" Id at 25.

[[\[FN7\]](#Document1zzFN_B7)]{.underline}. A frequent topic of
criticism is the influence of ideology on judging. For two recent
exchanges between critics and judges, compare Emerson H. Tiller and
Frank B. Cross, [[A Modest Proposal for Improving American Justice, 99
Colum L Rev 215
(1999)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3050&FindType=Y&SerialNum=0110707933)]{.underline}
(asserting that the federal justice system could be improved by
considering the \"partisan component of judging\" in the process of
assigning judges); Frank B. Cross and Emerson H. Tiller, [[Judicial
Partisanship and Obedience to Legal Doctrine: Whistleblowing on the
Federal Courts of Appeals, 107 Yale L J 2155, 2168-76
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1292&FindType=Y&ReferencePositionType=S&SerialNum=0108902981&ReferencePosition=2168)]{.underline}
(presenting data indicating that partisanship affects appellate court
decisions); Richard L. Revesz, [[Environmental Regulation, Ideology, and
the D.C. Circuit, 83 Va L Rev 1717
(1997)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1359&FindType=Y&SerialNum=0108582441)]{.underline}
(claiming that ideology influences judging and presenting an empirical
analysis), with Patricia M. Wald, [[A Response to Tiller and Cross, 99
Colum L Rev 235
(1999)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3050&FindType=Y&SerialNum=0110707934)]{.underline}
(challenging Tiller and Cross\'s conclusion that judges vote
ideologically); Harry T. Edwards, [[Collegiality and Decision Making on
the D.C. Circuit, 84 Va L Rev 1335
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1359&FindType=Y&SerialNum=0110395012)]{.underline}
(denying the influence of ideology on judging and contesting the
empirical findings of Revesz\'s and Tiller and Cross\'s articles).

[[\[FN8\]](#Document1zzFN_B8)]{.underline}. See, for example, Irving M.
Copi and Carl Cohen, Introduction to Logic (Prentice Hall 11th ed 2001).

[[\[FN9\]](#Document1zzFN_B9)]{.underline}. See, for example, John Von
Neumann and Oskar Morgenstern, Theory of Games and Economic Behavior
1-45 (Princeton 2d ed 1947).

[[\[FN10\]](#Document1zzFN_B10)]{.underline}. For more on Bayes Theorem,
see Part II.B.

[[\[FN11\]](#Document1zzFN_B11)]{.underline}. For example, Evans and
Wason have shown that people\'s justifications of their reasoning in
performing logical tasks do not reflect insight into the underlying
thought processes, but are simply plausible accounts that seem to
provide a good explanation for their conclusions. See Jonathan St. B.T.
Evans and P.C. Wason, Rationalization in a Reasoning Task, 67 Brit J
Psych 479, 483- 86 (1976). See also Jonathan St. B.T. Evans and David E.
Over, Rationality and Reasoning 109-17 (Psychology 1996) (discussing
\"belief bias,\" that is, the tendency to judge the validity of
reasoning according to one\'s a priori beliefs about the conclusion of
that reasoning).

[[\[FN12\]](#Document1zzFN_B12)]{.underline}. Confirmation bias concerns
a general tendency to inappropriately bolster a hypothesis or conclusion
whose truth is in question, due to preexisting beliefs about that
hypothesis or conclusion. For a comprehensive review, see Raymond S.
Nickerson, Confirmation Bias: A Ubiquitous Phenomenon in Many Guises, 2
Rev Gen Psych 175 (1998).

[[\[FN13\]](#Document1zzFN_B13)]{.underline}. One example is hindsight
bias. Experimental findings demonstrate that responses after an event
are influenced by knowledge of the outcome of the event (which, of
course, was not known prior to the event). The ensuing judgments give
one the erroneous sense that they were justified by the ex ante
information. See, for example, Scott A. Hawkins and Reid Hastie,
Hindsight: Biased Judgments of Past Events after the Outcomes Are Known,
107 Psych Bull 311 (1990). For a rich demonstration of applications of
biases and heuristics, see Edward J. McCaffery and Jonathan Baron,
Thinking about Tax (draft Mar 12, 2004) (on file with author).

[[\[FN14\]](#Document1zzFN_B14)]{.underline}. On the cognitive origins
of erroneous beliefs, see, for example, Ziva Kunda, Social Cognition:
Making Sense of People 15-52 (MIT 1999); Thomas Gilovich, How We Know
What Isn\'t So: The Fallibility of Human Reason in Everyday Life 1-6
(Free Press 1993).

[[\[FN15\]](#Document1zzFN_B15)]{.underline}. The typical experimental
paradigm of cognitive dissonance theory is \"forced compliance.\" In
these experiments, participants are induced to perform an act that runs
counter to their initial attitudes or moral standards. The consistent
finding is that participants change their attitudes and beliefs to
comport with their behavior. Newly adopted attitudes and beliefs provide
a justification for past conduct. On the current state of this research,
see Eddie Harmon-Jones and Judson Mills, eds, Cognitive Dissonance:
Progress on a Pivotal Theory in Social Psychology (American
Psychological 1999).

[[\[FN16\]](#Document1zzFN_B16)]{.underline}. William James described
decision tasks in a similar fashion: \"many objects, purposes, reasons,
motives, (are) related to each other, some in a harmonious and some in
an antagonistic way.\" William James, 2 The Principles of Psychology
1136 n 39 (Harvard 1981) (originally published in 1890).

[[\[FN17\]](#Document1zzFN_B17)]{.underline}. See Frederick Schauer,
Judging in the Corner of the Law, 61 § Cal L Rev 1717, 1723-26 (1988)
(arguing that disputes that lead to litigation tend to be more novel and
indeterminate in their interpretive possibilities than disputes that do
not lead to litigation).

[[\[FN18\]](#Document1zzFN_B18)]{.underline}. The term mental model is
used here in the broad sense of a structured representation. See Arthur
B. Markman, Knowledge Representation 248- 76 (Lawrence Erlbaum 1999).

[[\[FN19\]](#Document1zzFN_B19)]{.underline}. As in most models of
decision making, decisions are understood to be determined by the level
of support they receive from the task variables. This tradition goes
back to William James. James noted that \"(t)he reinforcing and
inhibiting ideas meanwhile are termed the reasons or motives by which
the decision is brought about.\" James, 2 Principles of Psychology at
1136 (cited in note 16).

[[\[FN20\]](#Document1zzFN_B20)]{.underline}. Compare Ronald Dworkin,
Law\'s Empire 225-26 (Belknap 1986) (advocating coherence in the
relationship between a proposition entailed in a judicial decision and
precepts of law that are exterior to the decision itself).

[[\[FN21\]](#Document1zzFN_B21)]{.underline}. For a recent review of the
research on biases and heuristics, see Thomas Gilovich, Dale Griffin,
and Daniel Kahneman, eds, Heuristics and Biases: The Psychology of
Intuitive Judgment (Cambridge 2002). For applications of this body of
work to law, see Cass R. Sunstein, ed, Behavioral Law & Economics
(Cambridge 2000); Symposium: Empirical Legal Realism: A New Social
Scientific Assessment of Law and Human Behavior, [[97 Nw U L Rev 1075
(2003)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1214&FindType=Y&SerialNum=0294374779)]{.underline};
Russell B. Korobkin and Thomas S. Ulen, [[Law and Behavioral Science:
Removing the Rationality Assumption from Law and Economics, 88 Cal L Rev
1051
(2000)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1107&FindType=Y&SerialNum=0280311434)]{.underline}.

[[\[FN22\]](#Document1zzFN_B22)]{.underline}. Biases and heuristics seem
to be part of the brain\'s tendency to conserve mental effort, but that
is too general a function to make for an operative psychological theory.
For a proposed conceptualization of the field, see Mark Kelman, [[Law
and Behavioral Science: Conceptual Overviews, 97 Nw U L Rev 1347
(2003)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1214&FindType=Y&SerialNum=0294374788)]{.underline}.

[[\[FN23\]](#Document1zzFN_B23)]{.underline}. See Cass R. Sunstein,
[[Deliberative Trouble? Why Groups Go to Extremes, 110 Yale L J 71
(2000)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1292&FindType=Y&SerialNum=0281684402)]{.underline}
(discussing evidence and implications of group polarization in legal and
political institutions); Cass R. Sunstein, Republic.com 71-80 (Princeton
2001) (discussing group polarization with respect to the Internet, media
proliferation, and group isolation).

[[\[FN24\]](#Document1zzFN_B24)]{.underline}. See Daniel J. Isenberg,
Group Polarization: A Critical Review and Meta-analysis, 50 J
Personality & Soc Psych 1141 (1986); David G. Myers and Helmut Lamm, The
Group Polarization Phenomenon, 83 Psych Bull 602 (1976).

[[\[FN25\]](#Document1zzFN_B25)]{.underline}. In searching for a
principled judgment, Rawls advocates working \"from both ends,\"
gradually revising and harmonizing the conception of the initial
condition and the judgment derived from it. Rawls explains:

By going back and forth, sometimes altering the conditions of the
contractual circumstances, at others withdrawing our judgments and
conforming them to principle, I assume that eventually we shall find a
description of the initial situation that both expresses reasonable
conditions and yields principles that match our considered judgments
duly pruned and adjusted. This state of affairs I refer to as reflective
equilibrium.

John Rawls, A Theory of Justice 18 (Belknap rev ed 1999). The process is
as much about justifying one\'s particular judgment as it is about
reconceptualizing the principles of the original position. At
equilibrium, the justification of a conception of justice is a function
of the \"mutual support of many considerations, of everything fitting
together into one coherent view.\" Id at 19. The idea that reflective
equilibrium can drive an epistemological or ethical model is inimical to
foundationalist philosophical theories. The latter tend to depend
critically on the unidirectionality of the reasoning process, from
foundational premises to inferred beliefs and judgments. See Paul
Thagard, Coherence in Thought and Action 4-5 (MIT 2000).

[[\[FN26\]](#Document1zzFN_B26)]{.underline}. See [[Old Chief v United
States, 519 US 172
(1997)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&SerialNum=1997025956)]{.underline}.

[[\[FN27\]](#Document1zzFN_B27)]{.underline}. In order to perform any
mental operation, the variables involved in the task must first be
represented somehow in the mind. Put succinctly, \"(a)ll that you know
about the world and your only basis for acting on the world is found in
your mental representations.\" Ronald T. Kellogg, Cognitive Psychology 8
(Sage 2d ed 2003). See also Lawrence W. Barsalou, Cognitive Psychology:
An Overview for Cognitive Scientists 55 (Lawrence Erlbaum 1992).

Representation should not be understood as entailing conscious
recognition. In Dennett\'s terms, it need not be in one\'s \"speech
centre.\" See D.C. Dennett, Content and Consciousness 118-19 (Humanities
1969).

[[\[FN28\]](#Document1zzFN_B28)]{.underline}. The exact nature of mental
representations is a topic of intense debate between advocates of two
general approaches: connectionist models and symbolic systems. For
reviews of the debate, see Keith J. Holyoak and John E. Hummel, The
Proper Treatment of Symbols in a Connectionist Architecture, in Eric
Dietrich and Arthur B. Markman, eds, Cognitive Dynamics: Conceptual and
Representational Change in Humans and Machines 229, 229-31 (Lawrence
Erlbaum 2000); Gary F. Marcus, The Algebraic Mind: Integrating
Connectionism and Cognitive Science 1-4 (MIT 2001).

The research reported in this Article is consistent with a hybrid
conception of representation, called symbolic connectionism. See Keith
J. Holyoak, Symbolic Connectionism: Toward Third-Generation Theories of
Expertise, in K. Anders Ericsson and Jacqui Smith, eds, Toward a General
Theory of Expertise: Prospects and Limits 301 (Cambridge 1991); Holyoak
and Hummel, Proper Treatment of Symbols at 232-59 (articulating the
theoretical position for a network-like structure of symbolic
knowledge).

Symbolic connectionist networks do not define variables at the neuron
level. As Holyoak and Spellman explain, systematic reasoning requires
symbolic representations without which links between elements would be
incapable of defining meaningful relationships. See Keith J. Holyoak and
Barbara A. Spellman, Thinking, 44 Ann Rev Psych 265, 270-72 (1993).
Representations are thus constructed by high-level conceptual building
blocks that share some of the symbolic properties of more traditional
cognitive architectures. See Stephen J. Read, Eric J. Vanman, and Lynn
C. Miller, Connectionism, Parallel Constraint Satisfaction Processes,
and Gestalt Principles: (Re)Introducing Cognitive Dynamics to Social
Psychology, 1 Personality & Soc Psych Rev 26, 32 (1997).

[[\[FN29\]](#Document1zzFN_B29)]{.underline}. The principal
characteristic of connectionist representations is the level of
activation of the elements. The level of activation stands for the
degree of the respective variable\'s strength, or acceptability.
Elements are connected to other elements by links, which can be either
positive (supportive) or negative (inhibitory). Coherent relationships
are denoted by positive links; inconsistent relationships are denoted by
negative links. Links also vary in degree: where the association between
the respective variables is strong, the link is said to carry much
weight.

The seminal work on constraint satisfaction theories is David Rumelhart
and James McClelland, eds, 1 Parallel Distributed Processing:
Explorations in the Microstructure of Cognition (MIT 1986). For
introductions to connectionism, see Thagard, Thought and Action at 1-13
(cited in note 25) (explaining the importance of coherence as a concept
in philosophy and psychology); William Bechtel and Adele Abrahamsen,
Connectionism and the Mind: An Introduction to Parallel Processing in
Networks (Basil Blackwell 1991). For an excellent review of the field,
see Read, Vanman, and Miller, 1 Personality & Soc Psych Rev 26, 27-32
(cited in note 28).

[[\[FN30\]](#Document1zzFN_B30)]{.underline}. For a review of
representations of knowledge, see Markman, Knowledge Representation at
1-26 (cited in note 18). See also Stephen J. Read, Constructing Causal
Scenarios: A Knowledge Structure Approach to Causal Reasoning, 52 J
Personality & Soc Psych 288 (1987).

[[\[FN31\]](#Document1zzFN_B31)]{.underline}. Each constraint is a
function of the respective element\'s level of activation and the weight
of its links. Each variable is said to constitute a soft constraint. See
Bechtel and Abrahamsen, Connectionism and the Mind at 58- 60 (cited in
note 29).

[[\[FN32\]](#Document1zzFN_B32)]{.underline}. Positively linked elements
excite one another, while negatively linked ones inhibit each other. The
induced activation of any pair of linked elements depends on their
relative initial levels of activation and on the weight and sign of the
link that connects them. Highly activated elements strongly affect
others and are resistant to external influence; weakly activated
elements hardly affect others and are sensitive to external activations.

[[\[FN33\]](#Document1zzFN_B33)]{.underline}. The phenomena of reversed
induction and structural reconfiguration are the hallmarks of Gestalt
psychology. Gestalt psychologist Max Wertheimer explains \"one has a
feeling how successive parts should follow one another; one knows what a
\'good continuation\' is; how \'inner coherence\' is to be achieved,
etc.; one recognizes a resultant \'good Gestalt\' simply by its own
\'inner necessity\'.\" Max Wertheimer, Laws in Organization of
Perceptual Forms, in Willis D. Ellis, ed, A Source Book of Gestalt
Psychology 71, 83 (Routledge 1955).

Constraint satisfaction theory has been dubbed a \"new kind of Gestalt
theory.\" Stephen E. Palmer, Gestalt Psychology Redux, in Peter
Baumgartner and Sabine Payr, eds, Speaking Minds: Interviews with Twenty
Eminent Cognitive Scientists 160 (Princeton 1995). See also Keith J.
Holyoak, Problem Solving, in Edward E. Smith and Daniel N. Osherson,
eds, 3 An Invitation to Cognitive Science: Thinking 267, 289-90 (MIT 2d
ed 1995) (discussing similarities between the concepts of constraint
satisfaction and Gestalt theory). The Gestaltian roots of connectionism
have also been discussed in Simon and Holyoak, 6 Personality & Soc Psych
Rev at 283-85 (cited in note 5).

[[\[FN34\]](#Document1zzFN_B34)]{.underline}. Another way to appreciate
how coherence-based reasoning differs from conventional theories of
cognition is to consider how it breaks with the prevalent understanding
of the relationship between the two building blocks of cognitive
psychology\--representation and computation. At the core of cognitive
psychology is the general idea that mental activity is the product of
applying a procedure, computation, or manipulation to a state of affairs
represented in the mind. In general terms, all cognitive processing
entails the dual function of representation and computation. The latter
component is best understood as a form of making an inference or
judgment, whereas the former concerns mentally representing the
variables. See note 28.

The dominant theories of cognitive psychology presume separability of
the two components, as do most theories of decision making and legal
reasoning. These theories assume invariance and exogeneity of mental
representations. That means (1) that the representations of the task
variables do not change during the performance of the task, at least not
in any systematic manner; and (2) that the representations of the task
variables are determined by factors such as background knowledge,
personal preferences, cultural conventions, and the like, which are
external and antecedent to the decision-making task itself.
Coherence-based reasoning demonstrates that mental representations are
not entirely invariant or exogenous to the process of making decisions,
and suggests that representational shifts are central to the
decision-making process itself.

[[\[FN35\]](#Document1zzFN_B35)]{.underline}. Paul Thagard applied
constraint satisfaction theory to the construction of scientific and
factual explanations. See Paul Thagard, Explanatory Coherence, 12 Behav
& Brain Sci 435 (1989). Keith Holyoak and Paul Thagard modeled
analogical reasoning in a computer simulation. See Keith J. Holyoak and
Paul Thagard, Analogical Mapping by Constraint Satisfaction, 13
Cognitive Sci 295 (1989). Lynn Miller and Steve Read have used
computerized models of constraint satisfaction to demonstrate the role
of coherence in social judgment. See Lynn Carol Miller and Stephen J.
Read, On the Coherence of Mental Models of Persons and Relationships: A
Knowledge Structure Approach, in Garth J.O. Fletcher and Frank D.
Fincham, eds, Cognition in Close Relationships 69 (Lawrence Erlbaum
1991); Stephen J. Read and Amy Marcus-Newhall, Explanatory Coherence in
Social Explanations: A Parallel Distributed Processing Amount, 65 J
Personality & Soc Psych 429 (1993) (describing experimental results
consistent with Thagard\'s theory of explanatory coherence).

Constraint satisfaction has also been applied to model the core
phenomena of cognitive dissonance theory, see Thomas R. Schultz and Mark
R. Lepper, Cognitive Dissonance Reduction as Constraint Satisfaction,
103 Psych Rev 219 (1996) (contrasting cognitive dissonance theory with a
constraint satisfaction computer model in reference to human data);
decisional dilemmas, see Paul Thagard and Elijah Millgram, Inference to
the Best Plan: A Coherence Theory of Decision, in Ashwin Ram and David
B. Leake, eds, Goal-Driven Learning 439, 449- 53 (MIT 1995) (modeling
decisional dilemmas by constraint satisfaction); and stereotyping, see
Ziva Kunda and Paul Thagard, Forming Impressions from Stereotypes,
Traits, and Behaviors: A Parallel-Constraint-Satisfaction Theory, 103
Psych Rev 284, 300-04 (1996) (proposing that the interaction between
stereotypical and individuating information can be modeled as a
constraint satisfaction process); Paul Thagard and Ziva Kunda, Making
Sense of People: Coherence Mechanisms, in Stephen J. Read and Lynn C.
Miller, eds, Connectionist Models of Social Reasoning and Social
Behavior 3 (Lawrence Erlbaum 1998) (same).

[[\[FN36\]](#Document1zzFN_B36)]{.underline}. The bulk of this research
was funded by the National Science Foundation.

[[\[FN37\]](#Document1zzFN_B37)]{.underline}. This experiment was
reported as Experiment 1 in Holyoak and Simon, 128 J Exper Psych: Gen 3
(cited in note 5). Forty-eight undergraduate students from UCLA
participated in this study to satisfy a course requirement.

[[\[FN38\]](#Document1zzFN_B38)]{.underline}. The twelve inferences were
based on ten vignettes. For technical reasons, two vignettes were
followed by a pair of statements rather than a single statement.

[[\[FN39\]](#Document1zzFN_B39)]{.underline}. For example, one vignette
read as follows:

A company that develops computer software was a great success when it
started up, but later it began to suffer from stiff competition. It did
not improve its original products. Internal disputes caused the
management to perform poorly. As its sales have fallen, the company has
been losing money and borrowing more to fund its operations. Its stock
price has been slipping steadily for months. An investor had at first
made a profit from his investment in the company, but more recently has
watched his investment shrivel. He discovered that the company had not
been upgrading its products. The investor was becoming increasingly
frustrated with the company\'s performance; he was especially angered by
its top executive\'s brazen denial of any troubles and hyperbolic
promises for a great future. The investor spreads a message that the
company is in a mess and its situation is hopeless.

Participants were then asked to rate their agreement with the following
two statements: \"The investor\'s action was motivated primarily by
vindictiveness; he was a sore loser who was happy to make money from the
company\'s success but unwilling to sit through tough times\"; and \"The
investor\'s main intention was to prevent other innocent potential
investors from being misled into a bad investment.\"

[[\[FN40\]](#Document1zzFN_B40)]{.underline}. For example, participants
were presented the following text: \"A newspaper is defined as: \'any
publication intended for the distribution and dissemination of news,
facts, or opinions to broad audiences.\' An electronic \'bulletin
board\' is a forum on computer networks (such as the Internet) where
subscribers post messages that are open to other subscribers.\" They
were then asked to rate their agreement with the following statement:
\"As a matter of legal policy, messages posted on electronic bulletin
boards should be treated like items published in newspapers.\"

Similarly, participants were presented the following text: \"A telephone
system is defined as \'a network of interconnected lines used to
transmit and receive voice or data from one extension to one or more
other extensions.\' An electronic \'bulletin board\' is a forum on
computer networks (such as the Internet) where subscribers post messages
that are open to other subscribers.\" They were then asked to rate their
agreement with the following statement: \"As a matter of legal policy,
messages posted on electronic bulletin boards should be treated like
messages sent over a telephone network.\"

[[\[FN41\]](#Document1zzFN_B41)]{.underline}. The first three points of
dispute involved matters of fact: Quest argued that Smith\'s negative
message was unfounded, whereas Smith claimed it was true; Quest asserted
that the message caused the company\'s downfall, whereas Smith claimed
that mismanagement was the cause; and Quest claimed that Smith\'s action
was motivated by vindictiveness, whereas Smith claimed he only aimed to
protect other innocent investors. The remaining three points of dispute
involved matters of law and social policy: Quest argued that as a matter
of public policy, it is in society\'s interest to regulate speech over
the Internet, whereas Smith argued that society would benefit more from
an unregulated Internet; Quest likened the Internet to a newspaper,
which according to precedent, was subject to libel law, whereas Smith
drew an analogy to a telephone system, which is immune from libel law;
and Quest claimed that, in posting his message, Smith had violated a
company bylaw requiring prior notification of management, whereas Smith
maintained that he had complied with the bylaw.

[[\[FN42\]](#Document1zzFN_B42)]{.underline}. For example, with regard
to the second issue argued by the parties, participants were asked to
state their agreement with the following statements: \"Smith\'s message
caused Quest\'s collapse\"; and \"Quest collapsed because of poor
performance.\"

[[\[FN43\]](#Document1zzFN_B43)]{.underline}. Participants were about
evenly divided in their verdicts, with twenty-six deciding in favor of
the plaintiff, Quest, and twenty-two deciding in favor of the defendant,
Smith. Figure 1 depicts the distribution of confidence levels, plotted
for all participants on a single axis, with the high values at the
extreme ends of the scale. The heights of the bars represent the
percentage of participants who reported the respective level of
confidence.

FIGURE 1

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[[\[FN44\]](#Document1zzFN_B44)]{.underline}. The left panel of Figure 2
depicts the coherence shifts for participants who voted for Smith. The
vertical axis represents the mean rating with the legal arguments,
plotted separately for arguments that supported Quest\'s position and
for arguments that supported Smith\'s position. The combined mean of the
arguments that favor the chosen decision increased from +1.32 to +1.9,
whereas the combined mean of the arguments supporting the rejected
decision decreased from +0.8 to-0.66.

The right panel depicts the coherence shifts for participants who voted
for Quest. The combined mean of the arguments that favor the chosen
decision increased from +1.68 to +2.46, whereas the combined mean of the
arguments supporting the rejected decision decreased from +0.95 to-0.23.

FIGURE 2

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Unless stated otherwise, all results presented in this Article were
significant at the level of p \< 0.05, and most were significant at the
level of 0.001.

[[\[FN45\]](#Document1zzFN_B45)]{.underline}. For the definitions of a
newspaper and of a telephone system, see note 40.

[[\[FN46\]](#Document1zzFN_B46)]{.underline}. Figure 3 shows that at the
vignette phase, participants gave similarly positive ratings for both
analogies (positive ratings were expected since both analogies were
plausible). However, when the same analogies were evaluated in the
context of the case, the ratings shifted in a predictable pattern: the
initially moderate ratings clustered around the range from +0.82 to
+1.12, and then increased to +1.58 and +2.88, and decreased to-1.12
and-1.46, all in the predicted directions.

FIGURE 3

[[\[FN47\]](#Document1zzFN_B47)]{.underline}. Although these analyses
reveal a clear shift in the aggregate ratings of the six points of
dispute, they do not suffice to establish that individual participants
reached a broadly coherent position across all the disputed issues. It
remains theoretically possible that these mean effects were caused by
shifts in just one or two arguments rather than by imposition of
coherence on the entire sets of arguments.

To rule out this possibility, we performed a correlational analysis of
all six arguments and the eventual verdicts. We predicted that at the
vignette phase, participants\' ratings of the six positions would not
constrain one another, and hence would tend to be uncorrelated, and that
at the decision phase coherence effects would yield positive
correlations among the disputed points, and between each point and the
verdict. This, in fact, is the pattern we observed. In the first
measurement, we found that only two of the twenty-one correlations were
significantly positive, and several were negative. This further
demonstrates that the materials in fact created a genuine sense of
complexity and ambiguity. In contrast, in the second measurement, all
but one of the twenty-one correlations were significantly positive,
including all six correlations between disputed points and the verdict;
the nonsignificant correlation was also positive.

[[\[FN48\]](#Document1zzFN_B48)]{.underline}. Initially, we suspected
that coherence shifts might not be obtained within a single experimental
session, because participants might be sufficiently aware of their
initial responses and would maintain consistency in their responses. We
first ran the Quest experiment with a week delay between the two phases.
See Experiment 2, in Holyoak and Simon, 128 J Exper Psych: Gen at 10-11
(cited in note 5). In subsequent experiments, we found that our concerns
were groundless: similar shifts occurred within a single experimental
setting of one hour.

[[\[FN49\]](#Document1zzFN_B49)]{.underline}. This research on juror
decision making is reported in Simon, Snow, and Read, Evidence Judgments
(cited in note 5). The specific study described here is the basic study
with the Jason Wells materials. It was ultimately left out of that
article, though it overlaps with the studies reported there.

Ninety-one participants took part in this basic study. A total of 1,077
people took part in the four studies. The participants ranged in age
between eighteen and eighty with a mean age of thirty-four. These
experiments were completed over the Internet. Participants were
solicited through links posted on a number of psychology-related
websites and advertisements placed on the website \"About.com.\" As an
incentive, participants entered a lottery for \$200, with odds of
winning at 1/200. Participation was limited to American citizens over
the age of eighteen.

[[\[FN50\]](#Document1zzFN_B50)]{.underline}. This extension was also
intended to rule out the remote possibility that the previous findings
were driven by what the participants might have considered to be an
experimental demand. It is conceivable that the participants in the
Quest experiments imposed coherence because they believed that coherence
is the way judges (whom they were simulating) perform the task. There is
no reason to suspect that they hold the same conception of juror
decision making.

[[\[FN51\]](#Document1zzFN_B51)]{.underline}. The factual questions were
followed by questions pertaining to participants\' general beliefs
concerning the respective facts. For a discussion on the findings
regarding the general beliefs, see Part I.B.4.

[[\[FN52\]](#Document1zzFN_B52)]{.underline}. In some of the studies,
participants were asked to play the role of an arbitrator in a
disciplinary hearing brought by the company against Jason Wells.

[[\[FN53\]](#Document1zzFN_B53)]{.underline}. For example, the evidence
pertaining to the eyewitness identification read as follows:

The night of the crime, a technician was called in to repair the
photocopying machine in Big Buildings\' office. The technician testified
that as he was on his way out of the office, he saw a person rushing out
of the bookkeeper\'s office and then disappearing down the stairs. The
time then was about 7:15 PM. The next day, police detectives asked the
technician to go to identify the defendant. When they got to Jason\'s
office, the technician said that he recognized Jason as the man he saw
the night before leaving the bookkeeper\'s office. When asked how
certain he was, the technician responded that he was completely certain
that it was Jason. He added that he had seen Jason in the building once
or twice before.

[[\[FN54\]](#Document1zzFN_B54)]{.underline}. One numerically defined
piece of evidence was the uniqueness of the match with the defendant\'s
car. A video camera depicted a car screaming away from the scene of the
crime, but its license plate could not be deciphered. The car make and
color matched the defendant\'s car, and he was seen driving it to work
that day. Participants were told that only 1 percent of the cars in the
county matched the description. Another piece of evidence concerned a
phone call Jason made just minutes after the crime. The cell phone
company identified the location of the call as very close to his office.
This information undermined Jason\'s alibi (of being at home).
Participants were also told that the location of calls was accurate in
98 percent of cases.

[[\[FN55\]](#Document1zzFN_B55)]{.underline}. To obtain high sensitivity
in responses, the confidence rating was elicited on an eleven-point
scale, ranging from 1 (low), through 6 (medium), to 11 (high).

[[\[FN56\]](#Document1zzFN_B56)]{.underline}. For example, participants
were asked to rate their agreement with the factual statement: \"The
technician\'s identification of Jason makes it likely that the person
hurrying out of the bookkeeper\'s office was in fact Jason.\"

[[\[FN57\]](#Document1zzFN_B57)]{.underline}. Responses to the inference
questions were collected on the same eleven-point response scale.

[[\[FN58\]](#Document1zzFN_B58)]{.underline}. Figure 4 presents the mean
ratings separately for participants who decided against the defendant
(\"Convictors,\" in the left panel) and participants who decided in
favor of the defendant (\"Acquitters,\" right panel). The graphs
represent the mean rating for inculpating items and exculpating items
separately.

FIGURE 4

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As seen on the left panel, for participants who convicted the defendant,
ratings of inculpating items increased relative to the ratings of
virtually the same evidence at the vignette phase (from a mean of 1.47
to 1.90), while the ratings of the exculpating items dropped
dramatically (from 1.18 to-0.94). Opposite shifts are found for those
who acquitted the defendant, with ratings of inculpating items
decreasing relative to the vignette phase (from a mean of 1.02 to 0.02),
and ratings of the exculpating items increasing (from 1.04 to 1.57).

[[\[FN59\]](#Document1zzFN_B59)]{.underline}. Another way to depict the
polarization of the perceptions of the evidence is a histogram that
plots the aggregate number of ratings given to the inculpating items
(light-colored bars) and exculpating items (dark-colored bars). Figure 5
presents the ratings only for the participants who convicted the
defendant. The horizontal axis represents the scale of ratings, ranging
from-5 (\"strongly disagree\") to +5 (\"strongly agree\"). The vertical
axis represents the frequency of those ratings, that is, the number of
times each rating was given by this population. At the vignette stage
(top panel), the ratings of both inculpating and exculpating items are
distributed relatively evenly across the scale, suggesting that these
participants found both types of evidence to be similarly true. At the
decision phase (lower panel), there is a polarization in the ratings,
with more positive ratings given to inculpating evidence and more
negative ratings given to exculpating evidence. This is, of course,
another manifestation of the coherence shifts. Similar polarization (not
depicted here) was found among participants who acquitted the defendant.

FIGURE 5

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[[\[FN60\]](#Document1zzFN_B60)]{.underline}. For this analysis, we
split the participants (regardless of their decisions) into groups of
high confidence (ratings of 9 and above), and low confidence (ratings of
8 and below). The discrepancy between the inculpating and exculpating
difference was found to be 1.90 for the low confidence participants and
3.00 for the participants who reported high confidence. This difference
was highly significant.

[[\[FN61\]](#Document1zzFN_B61)]{.underline}. Using the same split
between high and low levels of confidence, we compared the discrepancy
between the inculpating and exculpating ratings at the two points of
measurement. The discrepancy was 1.23 for the low confidence
participants and 1.71 for participants who reported higher confidence.
This difference was highly significant.

[[\[FN62\]](#Document1zzFN_B62)]{.underline}. These studies were
published as Experiments 2 and 3 of Holyoak and Simon, 128 J Exper
Psych: Gen 3 (cited in note 5).

[[\[FN63\]](#Document1zzFN_B63)]{.underline}. Mental processes are
generally said to be automatic when they occur outside of awareness,
require no conscious cue for initiation, consume little cognitive
effort, and are readily stoppable. All four criteria do not have to be
present in order to treat a process as automatic. On the increasingly
important distinction between automatic and controlled processing, see
Daniel M. Wegner and John A. Bargh, Control and Automaticity in Social
Life, in Daniel T. Gilbert, Susan T. Fiske, and Gardner Lindzey, eds, 1
The Handbook of Social Psychology 446 (McGraw-Hill 1998); John A. Bargh,
The Four Horsemen of Automaticity: Awareness, Intention, Efficiency, and
Control in Social Cognition, in Robert S. Wyer, Jr. and Thomas K. Srull,
eds, 1 Handbook of Social Cognition 1 (Lawrence Erlbaum 2d ed 1994).

[[\[FN64\]](#Document1zzFN_B64)]{.underline}. Participants had not been
told of this final recall task in advance.

[[\[FN65\]](#Document1zzFN_B65)]{.underline}. These studies were
reported as Experiment 1 of Holyoak and Simon, 128 J Exper Psych: Gen 3
(cited in note 5), and as Experiments 1-3 of Simon, et al, 27 J Exper
Psych: Learning, Memory & Cognition 1250 (cited in note 5).

[[\[FN66\]](#Document1zzFN_B66)]{.underline}. See Leon Festinger,
Conflict, Decision, and Dissonance 30-31, 153 (Stanford 1964); Leon
Festinger, A Theory of Cognitive Dissonance 34-35, 42-47 (Stanford
1957). Jerome Bruner criticized dissonance theory, claiming that \"the
most interesting aspects of cognition are those that precede the making
of decisions rather than those that follow (it).\" Jerome Bruner,
Discussion, in Jerome S. Bruner, et al, Contemporary Approaches to
Cognition: A Symposium Held at the University of Colorado 152 (Harvard
1957). Bruner commented that dissonance theory amounted to a \"rather
autistic tradition.\" Id. Coherence-based reasoning can be seen as the
experimental corollary of Bruner\'s observation.

For reviews of the relationship between cognitive dissonance theory and
Gestalt psychology, see Read, Vanman, and Miller, 1 Personality & Soc
Psych Rev at 44- 46 (cited in note 28) (discussing the reliance of
cognitive dissonance on Gestalt psychology); Hazel Markus and R.B.
Zajonc, The Cognitive Perspective in Social Psychology, in Gardner
Lindzey and Elliot Aronson, eds, 1 Handbook of Social Psychology 137,
197-214 (Random House 3d ed 1985). For a critical view of cognitive
dissonance as a field of decision making, see Simon and Holyoak, 6
Personality & Soc Psych Rev at 283-85 (cited in note 5).

[[\[FN67\]](#Document1zzFN_B67)]{.underline}. In these studies,
participants completed essentially the same procedure as did those in
the basic condition, except that in the initial instructions
participants were told that before reaching a verdict they should wait
to hear the verdict of another judge in a very similar case, as the
other verdict would provide additional information relevant to their
decision. We also explained that the other judge was more senior and had
an outstanding reputation, and that reaching different results would
cause some legal confusion and be a personal embarrassment for the
participants. In the meantime, they were instructed to read the case and
think about it. Before receiving any new information, these participants
were asked to state their \"preliminary leaning\" toward either Quest or
Smith, and to report their evaluations of the arguments. After their
response forms were collected, participants were then told that the
other judge was not going to deliver a verdict after all and that they
should proceed to reach a final verdict by themselves based on the facts
and arguments they had read. After stating their verdict, they completed
the second assessment instrument again (with a different random order of
the arguments). See Holyoak and Simon, 128 J Exper Psych: Gen at 5-6
(cited in note 5) (Experiment 1, three-phase participants only); Simon,
et al, 27 J Exper Psych: Learning, Memory & Cognition at 1252-53 (cited
in note 5) (Experiment 1).

[[\[FN68\]](#Document1zzFN_B68)]{.underline}. Figure 6 presents the
results of Study 1 in Simon, et al, 27 J Exper Psych: Learning, Memory &
Cognition at 1250 (cited in note 5). The vertical axis represents the
degree of support for the vying decisions, with positive scores
supporting Quest. The graphs represent the \"Quest Score\" at the three
points of measurement, that is, the ratings of the variables that
support Quest combined with a reverse score of the variables that
support Smith. Positive \"Quest Scores\" represent strong agreement with
Quest\'s arguments and disagreement with Smith\'s arguments.

Participants who chose the Quest verdict (top graph) shifted to high
support with Quest\'s arguments by the interim measurement, and opposite
shifts are noticeable for participants who decided for Smith (bottom
graph). A small additional shift is observed between the interim
measurement and the final decision. The latter shift can be understood
to have occurred post-decisionally.

FIGURE 6

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[[\[FN69\]](#Document1zzFN_B69)]{.underline}. See Experiment 3 of the
Jason Wells study in Simon, Snow, and Read, Evidence Judgments (cited in
note 5). Further evidence of predecisional shifts comes from an
experiment described below in which participants were found to re-shift
their mental models in the middle of a decision following introduction
of new evidence. See Part I.B.5. Predecisional shifts were also observed
in a study (not reported here) that involved a choice between two job
offers. Judgments made during the delay phase displayed substantial
shifts. See Study 1 in Simon, Krawczyk, and Holyoak, Construction of
Preferences (cited in note 5).

[[\[FN70\]](#Document1zzFN_B70)]{.underline}. In most of these
conditions, the post-decisional shifts did not reach statistical
significance. See Holyoak and Simon, 128 J Exper Psych: Gen at 7, 10-11,
14 (cited in note 5); Simon, et al, 27 J Exper Psych: Learning, Memory &
Cognition at 1253-56 (cited in note 5).

[[\[FN71\]](#Document1zzFN_B71)]{.underline}. It is theoretically
possible to interpret the findings of coherence shifts at the delay
phase not as predecisional shifts. Participants could be deemed to have
already made a decision by that point, so that the observed shifts are
effectively post-decisional. To refute this possibility, we ran two
studies in which the Quest case was presented not as a decision task at
all. For example, in one study, participants were not asked to play the
role of the judge nor were they asked to make any decision; rather, they
were instructed to memorize the arguments made by the lawyers in
preparation of a memory test. Simon, et al, 27 J Exper Psych: Learning,
Memory & Cognition 1250 (cited in note 5) (Experiment 2). We found
substantial coherence shifts at this point. This finding suggests that
coherence shifts are not post-decisional phenomena. They are better
understood as a general mechanism of cognition in conditions of
complexity. For a similar experiment, see id (Experiment 3). For a
detailed discussion of this issue, see Simon, Snow, and Read, Evidence
Judgments (cited in note 5).

[[\[FN72\]](#Document1zzFN_B72)]{.underline}. The results concerning the
depth of coherence effects were obtained in all of the Jason Wells
experiments reported in Simon, Snow, and Read, Evidence Judgments (cited
in note 5). The results of the breadth of coherence effects were
reported in Experiment 3 of Holyoak and Simon, 128 J Exper Psych: Gen 3
(cited in note 5).

[[\[FN73\]](#Document1zzFN_B73)]{.underline}. See note 30 and
accompanying text.

[[\[FN74\]](#Document1zzFN_B74)]{.underline}. For example, following a
question about the accuracy of a specific eyewitness identification,
participants were asked to report their general belief by rating their
agreement with the following sentence: \"In general, when people
identify someone whom they\'ve seen once or twice before the
identifications are accurate.\" The same question was used at both
measurement phases.

[[\[FN75\]](#Document1zzFN_B75)]{.underline}. For participants who
convicted the defendant, ratings of beliefs associated with innocence
declined (from 0.47 to-0.17); and for those who acquitted him, the
ratings of inculpating items decreased (from a mean of 1.26 to 0.37),
while ratings of the exculpating items increased (from 0.78 to 1.11).
For participants who decided to convict, inculpating evidence decreased
slightly relative to the ratings at the vignette phase (from a mean of
1.87 to 1.69). This mild decrease was the only shift that did not match
predictions. All other shifts occurred as predicted, and the
interactions were highly statistically significant.

[[\[FN76\]](#Document1zzFN_B76)]{.underline}. The second case involved a
contract dispute over the size of the bonus to be paid to the employees
of an Internet company. The contract contained a clause that was argued
to hinge on a comparison of the Internet company to either the newspaper
or the local phone company\--the same analogy involved in the Quest
case. This study is published as Experiment 3 in Holyoak and Simon, 128
J Exper Psych: Gen 3 (cited in note 5).

[[\[FN77\]](#Document1zzFN_B77)]{.underline}. The results for the Quest
study discussed in this Part, based on the participation of eighty
students, are published as Experiment 3 in Holyoak and Simon, 128 J
Exper Psych: Gen 3 (cited in note 5). The results for the Jason Wells
case are reported in Studies 1 and 4 of Simon, Snow, and Read, Evidence
Judgments (cited in note 5). Two hundred and eighty-six people
participated in this study via the Internet. They were recruited as in
the previous studies.

[[\[FN78\]](#Document1zzFN_B78)]{.underline}. Combined mean shifts were
from-0.27 to +0.93, and from +0.01 to-0.71. We omitted assessment of the
defendant\'s motive, one of the original six variables, due to the
possibility that this variable would be directly affected by the
information about Smith.

[[\[FN79\]](#Document1zzFN_B79)]{.underline}. All participants were
presented with the same basic evidence, with one key exception. One-half
of the participants were presented with evidence of a positive DNA match
between the defendant and the perpetrator, whereas the other half was
presented with evidence of a negative DNA match. As expected, the DNA
manipulation affected the distribution of verdicts, with 32 percent
voting to convict with a negative match and 69 percent voting to convict
with a positive match. Again, the manipulation of a single piece of
unrelated evidence altered the entire factual pattern. See Experiment 1
in Simon, Snow, and Read, Evidence Judgments (cited in note 5).

Similar indirect influences were also observed in a job choice
experiment (not reported here), where we found that manipulating the
favorability of the office location (located adjacent to a fun shopping
center versus a dreary industrial area) affected both the job choice
itself and also the participants\' preferences for other variables (for
example, salary and length of commute). See Simon, Krawczyk, and
Holyoak, Construction of Preferences (cited in note 5).

[[\[FN80\]](#Document1zzFN_B80)]{.underline}. See Part I.B.3.

[[\[FN81\]](#Document1zzFN_B81)]{.underline}. This is not to say that
people always respond to the new evidence or that the responses are
always adequate. Indeed, in some contexts, people respond very poorly.
See, for example, research on confirmation bias, Nickerson, 2 Rev Gen
Psych at 175 (cited in note 12); and groupthink, Irving L. Janis,
Groupthink: Psychological Studies of Policy Decisions and Fiascoes 2-13
(Houghton Mifflin 1982).

[[\[FN82\]](#Document1zzFN_B82)]{.underline}. Participants were
reassured that any assessments they would make at this point would not
be binding and that they would later \"be free to make whichever
decision you think is appropriate.\"

[[\[FN83\]](#Document1zzFN_B83)]{.underline}. The new evidence was based
on information obtained from the cell phone company as to the
defendant\'s location soon after the money was stolen. In the
incriminating condition, testimony was presented that the defendant had
made a call on his cell phone from several blocks away from his office
just minutes after the crime had occurred. In the exonerating condition,
evidence was presented that the defendant had made a call on his cell
phone from a location near his house, which was about forty-five minutes
from the scene of the crime. In the third condition, participants were
told that no new evidence would be obtained and they were advised to
decide the case with the available evidence.

[[\[FN84\]](#Document1zzFN_B84)]{.underline}. About one of every five
participants \"switched.\" Of the participants who originally leaned
toward acquittal, 165 subjects were \"consistent acquitters,\" and 23
\"switched\" to conviction. Of the 121 who initially leaned toward
conviction, 86 maintained a consistent preference for conviction,
whereas 35 \"switched\" to acquittal.

[[\[FN85\]](#Document1zzFN_B85)]{.underline}. See note 68 (illustrating
predecisional shifts).

[[\[FN86\]](#Document1zzFN_B86)]{.underline}. Figure 7 shows the ratings
of the evidence for Switchers.

FIGURE 7

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

The left panel corresponds to participants who initially tended toward
conviction but subsequently voted to acquit, whereas the right side
panel corresponds to those who initially tended toward acquittal but
ultimately convicted. Note, for example, that participants who
ultimately acquitted (left panel) first reported higher evaluations for
the guilt items and lower evaluations for the innocence items, but then
switched to lower evaluations for the inculpating items and higher
evaluations for the exculpating items. The opposite trend is observed
for participants who switched from innocence to guilt (right panel).

[[\[FN87\]](#Document1zzFN_B87)]{.underline}. See Part I.B.3.

[[\[FN88\]](#Document1zzFN_B88)]{.underline}. It could be argued that
the coherence shifts that resulted from the DNA manipulation do not
provide conclusive proof of bidirectional reasoning. Unlike the Quest
case, where the character of the defendant cannot conceivably be related
to the other issues, such as the analogy of the Internet to a newspaper
or a telephone system, in identity cases, the inferences could
theoretically affect one another. For example, it could be said that a
positive DNA match warrants a strong belief of the prosecution\'s
eyewitness because the defendant was proven to have been at the crime
scene, and that justifies treating his alibi claim with suspicion. This
possibility cannot be ruled out, though I doubt that these types of
inferences can fully explain the strong coherence shifts observed across
all of the items. For example, it is not so easy to conjecture a
rational link between the DNA evidence and the inference that the
defendant\'s grudge against his employer makes it more likely that he
was the culprit.

[[\[FN89\]](#Document1zzFN_B89)]{.underline}. For discussions of the
rapprochement, see Kunda, Social Cognition at 211-63 (cited in note 14);
Eliot R. Smith, Social Cognition Contributions to Attribution Theory and
Research, in Patricia G. Devine, David L. Hamilton, and Thomas M.
Ostrom, eds, Social Cognition: Impact on Social Psychology 77, 82
(Academic 1994) (concluding that \"cognition and motivation are
inseparable\"); Richard M. Sorrentino and E. Tory Higgins, eds, Handbook
of Motivation and Cognition 3-19 (Guilford 1986).

[[\[FN90\]](#Document1zzFN_B90)]{.underline}. Theoretical support for
this proposition can be found in Paul Thagard\'s conception of emotional
coherence. Thagard argues that coherence systems have emotional valence.
Valence indicates such features as likeability, desirability, or similar
kinds of positive or negative attitudes. Variables can be seen to be
related to one another by valence constraints. A variable that is
strongly valenced can affect the valence of the entire mental model. See
Thagard, Thought and Action at 170-77 (cited in note 25).

[[\[FN91\]](#Document1zzFN_B91)]{.underline}. See Brownstein, Read, and
Simon, Pre-decision Reevaluation (cited in note 5); Brownstein, Simon,
and Read, Betting Decisions (cited in note 5). The interpretation of the
role of coherence is somewhat tentative because we have not yet tested
for the ratings of the other task variables that were available to the
participants.

[[\[FN92\]](#Document1zzFN_B92)]{.underline}. The materials are taken
from Edward R. Stein and Frank D. Rothschild, eds, Dixon v. Providential
Life Insurance Co. (National Institute for Trial Advocacy 2000). I am
grateful to NITA for permission to use these materials.

[[\[FN93\]](#Document1zzFN_B93)]{.underline}. See Simon, Snow, and Read,
Self-Serving Bias (cited in note 5). We are continuing to run studies
intended to replicate these findings and obtain more detail on the
interaction between motivation and coherence phenomena.

[[\[FN94\]](#Document1zzFN_B94)]{.underline}. Attitudes embedded in
one\'s enduring values are also called ego-involving attitudes. See
Blair T. Johnson and Alice H. Eagly, Effects of Involvement on
Persuasion: A Meta-analysis, 106 Psych Bull 290, 305-11 (1989)
(discussing the effects of involvement on attitude change).

[[\[FN95\]](#Document1zzFN_B95)]{.underline}. See, for example, Jane
Goodman-Delahunty, Edith Greene, and Winston Hsiao, Construing Motive in
Videotaped Killings: The Role of Jurors\' Attitudes toward the Death
Penalty, 22 L & Human Behav 257, 265-67 (1998); William C. Thompson, et
al, Death Penalty Attitudes and Conviction Proneness: The Translation of
Attitudes into Verdicts, 8 L & Human Behav 95, 109-11 (1984).

[[\[FN96\]](#Document1zzFN_B96)]{.underline}. See Study 2 in Simon,
Snow, and Read, Evidence Judgments (cited in note 5).

[[\[FN97\]](#Document1zzFN_B97)]{.underline}. These findings will be
reported in Dan Simon, Daniel C. Krawczyk, and Keith J. Holyoak,
Coherence Comes and Goes: Testing the Endurance of Coherence Effects (in
progress) (on file with author). Thus far, forty-one participants have
completed all three measurements discussed in this Part.

\[FN98\]. See Simon, Krawczyk, and Holyoak, Construction of Preferences
(cited in note 5). In that original study, participants\' preferences
for the relative attributes of competing job offers\--namely, the
salary, length of commute, vacation package, and type of
office\--shifted toward greater support for the job offer that was
eventually chosen.

\[FN99\]. At the last phase, participants were not asked to make the
decision again. They were asked only for their ratings of the
attributes.

\[FN100\]. Figure 8 shows the compounded values of the ratings of the
attributes of the two job offers and the weights assigned to them, at
three points in time: at pretest, decision, and follow-up. Note that the
ratings were coherent with the decisions only at the point of making the
decision. One week after the decision was made, the ratings were not
different from their spontaneous state preceding the decision.

FIGURE 8

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

[[\[FN101\]](#Document1zzFN_B101)]{.underline}. These findings are
reported in Daniel C. Krawczyk, Dan Simon, and Keith J. Holyoak,
Moderating the Effects of Decision Making by Constraint Satisfaction (in
progress) (on file with author).

[[\[FN102\]](#Document1zzFN_B102)]{.underline}. See, for example, Baruch
Fischhoff, Perceived Informativeness of Facts, 3 J Exper Psych: Human
Perception & Performance 349, 352-54, 356-57 (1977) (reporting the
ineffectiveness of exhorting participants to \"work harder\" or telling
them about the \"knew-it-all-along\" bias).

[[\[FN103\]](#Document1zzFN_B103)]{.underline}. See, for example,
Charles G. Lord, Mark R. Lepper, and Elizabeth Preston, Considering the
Opposite: A Corrective Strategy for Social Judgment, 47 J Personality &
Soc Psych 1231 (1984) (debiasing assimilation biases); Paul Slovic and
Baruch Fischhoff, On the Psychology of Experimental Surprises, 3 J Exper
Psych: Human Perception & Performance 544 (1977) (reducing the effect of
hindsight bias in judgments of the predictability of scientific
results).

[[\[FN104\]](#Document1zzFN_B104)]{.underline}. See, for example, Linda
Babcock, George Loewenstein, and Samuel Issacharoff, Creating
Convergence: Debiasing Biased Litigants, 22 L & Soc Inquiry 913 (1997)
(debiasing in the context of self-serving biases).

[[\[FN105\]](#Document1zzFN_B105)]{.underline}. The \"be unbiased\"
instructions read in part: \"We would like you to be as objective and
unbiased as possible in making your decision about the verdict.\"

[[\[FN106\]](#Document1zzFN_B106)]{.underline}. On the breadth and
importance of automatic processing, see John A. Bargh and Tanya L.
Chartrand, The Unbearable Automaticity of Being, 54 Am Psychologist 462
(1999); Wegner and Bargh, Control and Automaticity at 446 (cited in note
63).

[[\[FN107\]](#Document1zzFN_B107)]{.underline}. It is the coupling of
biased processes with lack of awareness that makes for what has been
called mental contamination. See Timothy D. Wilson and Nancy Brekke,
Mental Contamination and Mental Correction: Unwanted Influences on
Judgments and Evaluations, 116 Psych Bull 117 (1994). See also
Nickerson, 2 Rev Gen Psych at 175 (cited in note 12).

[[\[FN108\]](#Document1zzFN_B108)]{.underline}. Naive realism refers to
one\'s

unshakable conviction that he or she is somehow privy to an invariant,
knowable, objective reality\--a reality that others will also perceive
faithfully, provided that they are reasonable and rational, a reality
that others are apt to misperceive only to the extent that they (in
contrast to oneself) view the world through a prism of self-interest,
ideological bias, or personal perversity.

Robert J. Robinson, et al, Actual versus Assumed Differences in
Construal: \"Naive Realism\" in Intergroup Perception and Conflict, 68 J
Personality & Soc Psych 404, 405 (1995). See also Lee Ross and Andrew
Ward, Naive Realism in Everyday Life: Implications for Social Conflict
and Misunderstanding, in Edward S. Reed, Elliot Turiel, and Terrance
Brown, eds, Values and Knowledge 103, 110- 11 (Lawrence Erlbaum 1996).
The term naive realism is a technical term used in social psychology and
has no connection to legal realism.

[[\[FN109\]](#Document1zzFN_B109)]{.underline}. As I have discussed
elsewhere, there are at least three additional reasons why cognitive
dissonance theory fails to provide a theoretical account for complex
decision making: (1) dissonance theory is limited only to single pairs
of variables, whereas complex decisions contain large numbers of
variables; (2) dissonance is limited only to direct, obverse relations
between elements, whereas complex cases entail structural
inconsistencies that are not directly opposite of one another; (3)
dissonance research has also focused almost exclusively on situations
that threaten the self-concept, a feature that is only marginally
implicated in many domains of decision making. See Simon and Holyoak, 6
Personality & Soc Psych Rev at 283-84 (cited in note 5); Simon, Snow,
and Read, Evidence Judgments at 6 (cited in note 5).

[[\[FN110\]](#Document1zzFN_B110)]{.underline}. It is interesting to
note that the shifting of background belief bears a structural
resemblance, again, with Rawls\'s reflective equilibrium. In the
original formulation of the reflective equilibrium, Rawls posited a
two-tier mechanism consisting of moral principles and moral judgments.
The weakness of the theory was in its disjunction from broader theories
of justification. See Norman Daniels, Wide Reflective Equilibrium and
Theory Acceptance in Ethics, 76 J Phil 256, 258-59 (1979). In his later
work, Rawls added a third tier of relevant background theories. In this
\"wide\" reflective equilibrium, moral justifications are reached by
working back and forth and finding the point at which all three tiers
equilibrate. See id. See also John Rawls, The Independence of Moral
Theory, in Samuel Freeman, ed, John Rawls: Collected Papers 286, 289-90
(Harvard 1999). Here, too, one should keep in mind the difference
between Rawls\'s prescriptive approach and the current conceptualization
of coherence. See note 25.

[[\[FN111\]](#Document1zzFN_B111)]{.underline}. Since I do not propose
to label coherence effects a \"bias,\" the intervention technique is
best not referred to as \"debiasing,\" even though it is the same kind
of intervention used in the context of some biases.

[[\[FN112\]](#Document1zzFN_B112)]{.underline}. The evaluations do not
shift to the end of the scale, to values of-5 or +5. On average, the
shifts were in the order of 2 units on this scale. A number of
evaluations intersect the neutral line, thus changing from positive to
negative values. Crossing the neutral line is notable in that
participants ultimately disagree with inferences with which they
previously agreed.

[[\[FN113\]](#Document1zzFN_B113)]{.underline}. A proposition is said to
be ambiguous when a multiplicity of its attributes can be isolated from
one another with relative ease. Ambiguous propositions are malleable and
thus especially susceptible to restructuring. For example, Christopher
Hsee has shown that malleability\--in his terms, elasticity\--lends
flexibility to the reasoning process. See Christopher K. Hsee, Elastic
Justification: How Unjustifiable Factors Influence Judgments, 66 Org
Behav & Human Dec Processes 122 (1996). Similarly, McGuire suggested
that the greatest change is imposed on issues \"most easily redefined.\"
William J. McGuire, Cognitive Consistency and Attitude Change, 60 J
Abnorm & Soc Psych 345, 349 (1960). The malleability of ambiguous
propositions has also been empirically demonstrated in Abraham Tesser
and Claudia L. Cowan, Some Attitudinal and Cognitive Consequences of
Thought, 11 J Rsrch Personality 216 (1977) (testing attitude
polarization and finding that it increased with the level of ambiguity).

[[\[FN114\]](#Document1zzFN_B114)]{.underline}. As Robert Abelson
explained, cognitive restructuring runs into difficulties when it
becomes \"too great a distortion of reality.\" Robert P. Abelson, Modes
of Resolution of Belief Dilemmas, 3 J Conflict Resol 343, 345 (1959).

[[\[FN115\]](#Document1zzFN_B115)]{.underline}. Research shows
individual differences in people\'s tolerance for inconsistency. See
Donna M. Webster and Arie W. Kruglanski, Individual Differences in Need
for Cognitive Closure, 67 J Personality & Soc Psych 1049 (1994); Steven
L. Neuberg and Jason T. Newsom, Personal Need for Structure: Individual
Differences in the Desire for Simple Structure, 65 J Personality & Soc
Psych 113 (1993). Leon Festinger referred to this construct as \"mental
agility.\" See Festinger, Cognitive Dissonance at 44 (cited in note 66).

[[\[FN116\]](#Document1zzFN_B116)]{.underline}. Cardinal shifts are
described in the judgment and decision-making literature as \"preference
reversals.\" See Paul Slovic and Sarah Lichtenstein, Preference
Reversals: A Broader Perspective, 73 Am Econ Rev 596-605 (1983).

[[\[FN117\]](#Document1zzFN_B117)]{.underline}. See Dan Simon, [[Freedom
and Constraint in Adjudication: A Look through the Lens of Cognitive
Psychology, 67 Brooklyn L Rev 1097, 1129-39
(2002)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3033&FindType=Y&ReferencePositionType=S&SerialNum=0290580023&ReferencePosition=1129)]{.underline};
Dan Simon, [[A Psychological Model of Judicial Decision Making, 30
Rutgers L J 1, 121-41
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1226&FindType=Y&SerialNum=0110784246)]{.underline}.
The exaggerated argumentation is in part also the product of the
practice of \"padding\" opinions. See Richard A. Posner, [[Judges\'
Writing Styles (And Do They Matter?), 62 U Chi L Rev 1421, 1441
(1995)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3039&FindType=Y&ReferencePositionType=S&SerialNum=0105930538&ReferencePosition=1441)]{.underline}.
By itself, however, padding cannot fully account for the observed
argumentative style. Padding can inflate the opinion by expanding and
adding some arguments that were not part of the underlying decision to
vote for the particular verdict, but it cannot explain how virtually
every one of the arguments\--including the core issues\--aligns so
perfectly to cohere with the verdict. Coherence-based reasoning,
however, goes a long way toward explaining the phenomenon.

[[\[FN118\]](#Document1zzFN_B118)]{.underline}. See [[Simon, 67 Brooklyn
L Rev at 1129-37 (cited in note
117)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3033&FindType=Y&ReferencePositionType=S&SerialNum=0290580023&ReferencePosition=1129)]{.underline};
Simon, [[30 Rutgers L J at 130-32 (cited in note
117)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1226&FindType=Y&ReferencePositionType=S&SerialNum=0110784246&ReferencePosition=130)]{.underline}.
I ended that discussion with an aspiration toward a different
argumentative style, in which, as advocated by Richard Posner, the
highest ambition of a judge faced with a difficult case would be to make
\"a \'reasonable\' (practical, sensible) decision, as distinct from a
demonstrably correct one.\" See [[id at
137,](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=0110784246)]{.underline}
citing Richard A. Posner, The Problems of Jurisprudence 456 (Harvard
1990). I suggested then that the natural tendency to impose coherence
might be overcome by means of a debiasing procedure which, as described
above, has since been substantiated experimentally. Although it is
rather unlikely that a formal debiasing procedure will be introduced
into the working practices of the bench, the susceptibility of the
cognitive process to debiasing is encouraging in that it suggests that
there are prospects for informal or indirect means of reducing the
excessive coherence.

[[\[FN119\]](#Document1zzFN_B119)]{.underline}. For careful and detailed
analyses of evidentiary complexity, see David A. Schum, [[Alternative
Views of Argument Construction from a Mass of Evidence, 22 Cardozo L Rev
1461, 1493-1502
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1441&FindType=Y&ReferencePositionType=S&SerialNum=0287162211&ReferencePosition=1493)]{.underline};
David A. Schum, Evidential Foundations of Probabilistic Reasoning 1-10
(John Wiley 1994). Schum\'s work follows in the tradition of Wigmore\'s
inference networks. See John H. Wigmore, The Problem of Proof, 8 Ill L
Rev 77 (1913-1914).

[[\[FN120\]](#Document1zzFN_B120)]{.underline}. See, for example,
Norbert L. Kerr, Robert J. MacCoun, and Geoffrey P. Kramer, Bias in
Judgment: Comparing Individuals and Groups, 103 Psych Rev 687, 713-15
(1996) (examining the difference between groups and individuals in their
susceptibility to types of bias).

[[\[FN121\]](#Document1zzFN_B121)]{.underline}. Id at 715 (concluding
that the social decision scheme model identifies \"conditions under
which groups are both more and less biased than individuals\").

[[\[FN122\]](#Document1zzFN_B122)]{.underline}. See note 207.

[[\[FN123\]](#Document1zzFN_B123)]{.underline}. Indeed, my collaborators
and I suspect that group processes amplify and compound coherence
shifts, and we have proposed studies to test for these effects.

[[\[FN124\]](#Document1zzFN_B124)]{.underline}. See notes 67-69 and
accompanying text.

[[\[FN125\]](#Document1zzFN_B125)]{.underline}. See notes 68-70.

[[\[FN126\]](#Document1zzFN_B126)]{.underline}. See, for example, Reid
Hastie and Bernadette Park, The Relationship between Memory and Judgment
Depends on Whether the Judgment Task Is Memory-Based or On-Line, 93
Psych Rev 258, 261-66 (1986) (arguing that much social judgment occurs
on-line, rather than being based on retrospective reconstructions of
features from memory); Laraine Winter and James S. Uleman, When Are
Social Judgments Made? Evidence for the Spontaneousness of Trait
Inferences, 47 J Personality & Soc Psych 237, 248-51 (1984) (discussing
research demonstrating that the exposure to information about other
people prompts spontaneous, automatic judgments of those targets, even
when the explicit task requires no such judgments).

[[\[FN127\]](#Document1zzFN_B127)]{.underline}. See, for example, R.B.
Zajonc, Feeling and Thinking: Preferences Need No Inferences, 35 Am
Psychologist 151, 160-65 (1980) (finding that feelings and preferences
preceded cognitive judgments).

[[\[FN128\]](#Document1zzFN_B128)]{.underline}. See Vicki L. Smith,
Impact of Pretrial Instruction on Jurors\' Information Processing and
Decision Making, 76 J Applied Psych 220, 225-26 (1991) (showing a high
prevalence of mid-trial verdict decisions); Saul M. Kassin and Lawrence
S. Wrightsman, On the Requirements of Proof: The Timing of Judicial
Instruction and Mock Juror Verdicts, 37 J Personality & Soc Psych 1877,
1883 (1979) (\"To some extent, then, subjects\' decisions were
substantially formed very early in the trial presentation.\").
Similarly, in a simulated civil trial, 34 percent and 44 percent of the
two groups of participants reported that they had reached a decision at
the halfway point of trial. See Martin J. Bourgeois, et al, Nominal and
Interactive Groups: Effects of Preinstruction and Deliberations on
Decisions and Evidence Recall in Complex Trials, 80 J Applied Psych 58,
61 (1995).

[[\[FN129\]](#Document1zzFN_B129)]{.underline}. A study of 1,385 jurors
from 172 civil trials held in Arizona in 1995 reveals that 65 percent of
the jurors developed a leaning in favor of one of the parties prior to
the jury instructions, and 40 percent actually made up their minds prior
to that point. See Paula L. Hannaford, et al, The [[Timing of Opinion
Formation by Jurors in Civil Cases: An Empirical Examination, 67 Tenn L
Rev 627, 628, 637, 640
(2000)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1250&FindType=Y&ReferencePositionType=S&SerialNum=0281662759&ReferencePosition=628)]{.underline}.
A rate of 73 percent of predecisional leanings was observed in a study
performed in criminal trials in 30 urban state court centers, with 3,626
jurors responding. See Paula L. Hannaford-Agor, et al, Are Hung Juries a
Problem? 32, 63-64 (National Center for State Courts 2002). In-depth
analyses conducted by the Capital Jury Project also show premature
decisions with respect to the punishment in capital trials. Almost half
of the 916 jurors interviewed reported that they had decided the
punishment during the guilt phase of the trial. See William J. Bowers,
Marla Sandys, and Benjamin D. Steiner, [[Foreclosed Impartiality in
Capital Sentencing: Jurors\' Predispositions, Guilt-Trial Experience,
and
Premature](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1111&FindType=Y&ReferencePositionType=S&SerialNum=0110448727&ReferencePosition=1486)]{.underline}
[[Decision Making, 83 Cornell L Rev 1476, 1486-88
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1111&FindType=Y&ReferencePositionType=S&SerialNum=0110448727&ReferencePosition=1486)]{.underline}.

[[\[FN130\]](#Document1zzFN_B130)]{.underline}. See Willaim W.
Schwarzer, Reforming Jury Trials, 132 Fed R Dec 575, 583-84 (1991)
(discussing the case for giving jury instructions at the start of the
trial). Anecdotally, having been introduced to the game of baseball as
an adult, my first impressions of the game led me to misconceive the
meaning of home runs. Based on my familiarity with tennis, it seemed to
me that a premium should be placed on accuracy rather than on brute
force, giving the pitching team a fair opportunity to throw out the
runners on the field. According to my conceptual framework of the game,
home runs should have counted against the batting team.

[[\[FN131\]](#Document1zzFN_B131)]{.underline}. Vicki Smith tested
undergraduate students at Northwestern University for their knowledge of
a number of familiar crimes. Most of the reported features were
inconsistent with the Illinois criminal code. Thus, for example,
participants defined burglary as: something of value is taken (54
percent, incorrect), occurs in home or apartment (46 percent,
inaccurate), involves a break in (42 percent, incorrect), with a purpose
to steal (33 percent, inaccurate). The correct elements of burglary in
Illinois at the time of the research were: entering a building without
authority with the intent to commit a felony. See Vicki L. Smith,
Prototypes in the Courtroom: Lay Representations of Legal Concepts, 61 J
Personality & Soc Psych 857, 861 (1991).

Misconceptions of criminal prohibitions were also found in research by
psychologist John Darley and criminal law professor Paul Robinson.
Specifically, they found that people tend to believe that the criminal
code matches their own moral sense of the issues. See [[John M. Darley,
Kevin M. Carlsmith, and Paul H. Robinson, The Ex Ante Function of the
Criminal Law, 35 L & Socy Rev 165
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=100947&FindType=Y&SerialNum=0287165443)]{.underline}.

[[\[FN132\]](#Document1zzFN_B132)]{.underline}. For experimental
evidence, see Vicki L. Smith, When Prior Knowledge and Law Collide:
Helping Jurors Use the Law, 17 L & Human Behav 507, 532-35 (1993);
Darley, Carlsmith, and Robinson, [[35 L & Socy Rev at 175 (cited in note
131)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=100947&FindType=Y&ReferencePositionType=S&SerialNum=0287165443&ReferencePosition=175)]{.underline}
(illustrating the difference between people\'s belief of the law and the
actual law).

[[\[FN133\]](#Document1zzFN_B133)]{.underline}. See note 84. It is quite
possible that the experimental design contributed to the stickiness of
the shifts, because asking participants for their preliminary leanings
can inhibit people from changing their minds. But that does not seem
sufficient to fully explain the fact that a majority of participants
stuck with their preliminary leanings despite the introduction of very
strong evidence to the contrary. Field data suggest that over the course
of the trial, a large proportion of jurors reverse their leanings, but
one-half of these changes occur before jury instructions. See
[[Hannaford, et al, 67 Tenn L Rev at 638-39 (cited in note
129)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1250&FindType=Y&ReferencePositionType=S&SerialNum=0281662759&ReferencePosition=638)]{.underline}.

[[\[FN134\]](#Document1zzFN_B134)]{.underline}. See G. Thomas
Munsterman, Paula L. Hannaford, and G. Marc Whitehead, eds, Jury Trial
Innovations 151-52 (National Center for State Courts 1997) (discussing
preinstructing the jury); ABA Standards for Criminal Justice Discovery
and Trial by Jury 231 (ABA 3d ed 1996) (mentioning the use of
preliminary jury instructions); E. Barrett Prettyman, Jury
Instructions\--First or Last?, 46 ABA J 1066 (1960) (suggesting that
jury instructions should be given at the start of a trial).

[[\[FN135\]](#Document1zzFN_B135)]{.underline}. Lynne ForsterLee, Irwin
A. Horwitz, and Martin J. Bourgeois, Juror Competence in Civil Trials:
Effects of Preinstruction and Evidence Technicality, 78 J Applied Psych
14, 18 (1993) (finding that postinstructed jurors were less able to
differentiate among the plaintiffs than preinstructed jurors).

[[\[FN136\]](#Document1zzFN_B136)]{.underline}. Smith, 76 J Applied
Psych at 224 (cited in note 128). In the four conditions, participants
were given jury instructions before the evidence, after the evidence,
both before and after, or never at all. The author found that
participants who were instructed both before and after the trial
performed significantly better than all others in applying the law to
the facts of the case. Id.

[[\[FN137\]](#Document1zzFN_B137)]{.underline}. Larry Heuer and Steven
D. Penrod, Instructing Jurors: A Field Experiment with Written and
Preliminary Instructions, 13 L & Human Behav 409, 424 (1989).
Specifically, preinstruction was reported to be more helpful in
evaluating the evidence, understanding the law, and applying the law to
the facts. Id. No differences were found on questions about the clarity
of the judge\'s instructions, nor on whether the instructions reduced
the confusion about the trial procedure. Id at 425.

[[\[FN138\]](#Document1zzFN_B138)]{.underline}. See ForsterLee,
Horowitz, and Bourgeois, 78 J Applied Psych at 19 (cited in note 135)
(finding that preinstruction increases juror recall of probative
evidence and decreases recall of nonprobative facts). See also Lynne
ForsterLee and Irwin A. Horowitz, Enhancing Juror Competence in a
Complex Trial, 11 Applied Cognitive Psych 305, 314 (1997) (replicating
the earlier study with added trial complexity and achieving similar
results); Kassin and Wrightsman, 37 J Personality & Soc Psych at 1881
(cited in note 128) (finding moderately positive effects). I have not
included the work of Elwork and his colleagues in the count of positive
findings since they found improvement in only two of the three key
factual issues of the trial. See Amiram Elwork, Bruce D. Sales, and
James J. Alfini, Juridic Decisions: In Ignorance of the Law or in Light
of It?, 1 L & Human Behav 163, 177 (1977).

Vicki Smith, however, found no improvement in evidence recall due to
preinstruction. Smith, 76 J Applied Psych at 223 (cited in note 128).
Heuer and Penrod also found no improvement in juror evidence recall, but
this report should be taken with caution since the study did not include
a test for recall. See Heuer and Penrod, 13 L & Human Behav at 409
(cited in note 137). The authors\' conclusion was based only on jurors\'
self-reported levels of confidence of recall, a measure that is often
infected with metacognitive difficulties and overconfidence. See id.

[[\[FN139\]](#Document1zzFN_B139)]{.underline}. See, for example, Albert
Bandura, Social Cognitive Theory of Self-Regulation, 50 Org Beh & Human
Dec Processes 248, 257-58 (1991) (concluding that confidence in
self-efficacy positively affects choices, aspirations, effort,
perseverance, and stress levels); Barry J. Zimmerman, A Social Cognitive
View of Self-Regulated Academic Learning, 81 J Educ Psych 329, 331
(1989) (summarizing data suggesting that perceptions of high
self-efficacy are positively associated with persistence and achievement
in an academic context).

[[\[FN140\]](#Document1zzFN_B140)]{.underline}. See, for example,
Felicia Pratto and John A. Bargh, Stereotyping Based on Apparently
Individuating Information: Trait and Global Components of Sex
Stereotypes under Attention Overload, 27 J Exper Soc Psych 26, 44 (1991)
(finding that people faced with an unassimilable amount of data tended
to rely on sexual stereotypes in judging behavior); Galen V. Bodenhausen
and Meryl Lichtenstein, Social Stereotypes and Information-Processing
Strategies: The Impact of Task Complexity, 52 J Personality & Soc Psych
871 (1987) (concluding that when facing a complex judgmental situation,
participants were more likely to base their judgments on stereotypes as
a way of simplifying the judgment, causing (negative)
stereotype-confirming decisions accompanied by high recall of the
negative evidence and a neglect of the positive information).

[[\[FN141\]](#Document1zzFN_B141)]{.underline}. Heuer and Penrod, 13 L &
Human Behav at 424 (cited in note 137) (finding that jurors believed
preinstruction procedures helped them to be more effective in their
responsibilities).

[[\[FN142\]](#Document1zzFN_B142)]{.underline}. See Vicki L. Smith, The
Feasibility and Utility of Pretrial Instruction in the Substantive Law:
A Survey of Judges, 14 L & Human Behav 235, 243-45 (1990). In a survey
of the California judges, 71 percent of the judges who expressed their
opposition to preliminary instructions cited this concern. Another
notable concern was that the practice would waste time and effort. Id.

[[\[FN143\]](#Document1zzFN_B143)]{.underline}. See [[FRCP
50](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1004365&DocName=USFRCPR50&FindType=L)]{.underline}
(providing the standard for a directed verdict); [[FRCrP
29](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1004365&DocName=USFRCRPR29&FindType=L)]{.underline}
(same for criminal trials).

[[\[FN144\]](#Document1zzFN_B144)]{.underline}. Heuer and Penrod, 13 L &
Human Behav at 426 (cited in note 137).

[[\[FN145\]](#Document1zzFN_B145)]{.underline}. Id. Positive responses
were reported also by two judges and several counsel who participated in
a small-scale experiment conducted in the Second Circuit. Leonard B.
Sand and Steven Alan Reiss, [[A Report on Seven Experiments Conducted by
District Court Judges in the Second Circuit, 60 NYU L Rev 423, 439-42
(1985)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1206&FindType=Y&ReferencePositionType=S&SerialNum=0102612476&ReferencePosition=439)]{.underline}
(discussing fourteen cases in which preinstructions were given).

[[\[FN146\]](#Document1zzFN_B146)]{.underline}. The hypothesis is
supported by Kassin and Wrightsman\'s finding that, of the participants
who were given preinstructions on the requirements of proof, 37 percent
returned guilty verdicts in a criminal trial, compared to 59 percent
among those instructed after the evidence and 63 percent of those who
were not instructed at all. Kassin and Wrightsman, 37 J Personality &
Soc Psych at 1880 (cited in note 128). Vicki Smith, however, found no
difference in conviction levels. Smith, 76 J Applied Psych at 225 (cited
in note 128). In an unpublished experiment, run on a considerably larger
group of participants, Steve Read, Chad Snow, and I found no difference
in conviction rates.

[[\[FN147\]](#Document1zzFN_B147)]{.underline}. Research that monitors
perceptions of the standard reveals that while assessments vary with the
methodology of elicitation, the responses tend to converge in the range
of 80 to 90 percent certainty satisfying the standard. See, for example,
Reid Hastie, Algebraic Models of Juror Decision Processes, in Reid
Hastie, ed, Inside the Juror: The Psychology of Juror Decision Making
84, 102 (Cambridge 1993) (listing results from numerous empirical
studies).

[[\[FN148\]](#Document1zzFN_B148)]{.underline}. See Wayne R. Lafave,
Jerold H. Israel, and Nancy J. King, 5 Criminal Procedure § 24.8(a) at
567 (West 2d ed 1999 & Supp 2003) (noting that arguments against
substantive preliminary instructions include the possibility that jurors
will \"improperly focus . . . on only some of the many elements they
must consider\").

[[\[FN149\]](#Document1zzFN_B149)]{.underline}. See Heuer and Penrod, 13
L & Human Behav at 414-15 (cited in note 137), citing Reid Hastie, Final
Report to the National Institute for Law Enforcement and Criminal
Justice (1983). This concern was also cited by a minority of the
California judges surveyed by Smith. Smith, 14 L & Human Behav at 244
(cited in note 142).

[[\[FN150\]](#Document1zzFN_B150)]{.underline}. See Bourgeois, et al, 80
J Applied Psych at 61 (cited in note 128) (finding that preinstructed
jurors did not decide the case early); Smith, 76 J Applied Psych at 225
(cited in note 128) (\"Contrary to the fears of critics, jurors
instructed before trial were significantly more likely to defer their
verdict decisions than were those instructed after trial.\").

[[\[FN151\]](#Document1zzFN_B151)]{.underline}. See Kevin F. O\'Malley,
Jay E. Grenig, and William C. Lee, Federal Jury Practice and
Instructions: Jury Trial § 7.06 at 504 (West 5th ed 2000 & Supp 2003)
(\"The federal judge need not give instructions in any particular form .
. . so long as the substance of the suggested instruction is fully
stated.\").

[[\[FN152\]](#Document1zzFN_B152)]{.underline}. Both [[Rule 51 of the
Federal Rules of Civil
Procedure](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1004365&DocName=USFRCPR51&FindType=L)]{.underline}
and [[Rule 30 of the Federal Rules of Criminal
Procedure](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1004365&DocName=USFRCPR51&FindType=L)]{.underline}
provide that judges may instruct the jury before or after the arguments,
or at both times. Preinstruction would thus be introduced in addition to
the statutory requirement. See, for example, Manual of Model Civil Jury
Instructions for the District Courts of the Ninth Circuit § 1 (West
2001); Manual of Model Criminal Jury Instructions for the District
Courts of the Eighth Circuit § 1 (West 2000); Pennsylvania Suggested
Standard Civil Jury Instructions § 1.31 (Pennsylvania Bar Institute
2003); Howard G. Leventhal, Charges to the Jury and Requests to Charge
in a Criminal Case: New York § 1:03 (Callaghan 2003).

[[\[FN153\]](#Document1zzFN_B153)]{.underline}. See, for example,
Illinois Pattern Jury Instructions: Civil 5- 15 (West 2000); Illinois
Pattern Jury Instructions: Criminal § 1.01 (West 4th ed 2000); New York
Pattern Jury Instructions\--Civil § 1 (Law Co-op 3d ed 1996).

[[\[FN154\]](#Document1zzFN_B154)]{.underline}. See, for example,
[[United States v Marsh, 144 F3d 1229, 1238 (9th Cir
1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=506&FindType=Y&ReferencePositionType=S&SerialNum=1998113894&ReferencePosition=1238)]{.underline}
(noting, without criticism, that preliminary jury instructions were
given); [[United States v Hegwood, 977 F2d 492, 495 (9th Cir
1992)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&ReferencePositionType=S&SerialNum=1992176184&ReferencePosition=495)]{.underline}
(holding that faulty preliminary jury instructions were cured by a
subsequent correct charge).

[[\[FN155\]](#Document1zzFN_B155)]{.underline}. A survey administered to
157 Superior Court Judges in California in 1990 revealed that 43 percent
of the surveyed judges stated that they favored preinstruction, whereas
57 percent opposed it. Eighty-two percent reported giving procedural
instructions before the evidence phase, 74 percent instructed on the
requirements of proof, and 34 percent gave preinstructions on
substantive law. The survey was sent to 350 of the then-712 Superior
Court judges; 45 percent responded. Smith, 14 L & Human Behav at 241-42
(cited in note 142). It should be noted that neither the civil nor the
criminal manuals of California Jury Instructions contain pretrial
instructions.

[[\[FN156\]](#Document1zzFN_B156)]{.underline}. Admittedly, there is no
panacea in these matters, and one ought not expect too marked an
improvement in jury performance. On the persistence of erroneous beliefs
about the law, see Smith, 17 L & Human Behav at 532-35 (cited in note
132).

[[\[FN157\]](#Document1zzFN_B157)]{.underline}. The debate has been the
topic of at least three dedicated conferences. See Bayesianism and
Juridical Proof, 1 Intl J Evid & Proof 253- 360 (1997); Decision and
Inference in Litigation, 13 Cardozo L Rev 253-1079 (1991); Symposium:
Probability and Inference in the Law of Evidence, [[66 BU L Rev 377-952
(1986)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3197&FindType=Y&SerialNum=0102699960)]{.underline},
excerpted as Peter Tillers and Eric D. Green, eds, Probability and
Inference in the Law of Evidence: The Uses and Limits of Bayesianism
(Kluwer 1988). The debate also takes up much of the symposium: New
Perspectives on [[Evidence, 87 Va L Rev 1491-2081
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1359&FindType=Y&SerialNum=0287627320)]{.underline}.
The debate can be traced back to Richard Lempert\'s seminal piece,
Modeling Relevance, 75 Mich L Rev 1021 (1977) (advocating Bayes Theorem
as it relates to evidence processing).

For dispassionate overviews of the debate, see generally Mirjan Damaska,
Atomistic and Holistic Evaluation of Evidence: A Comparative View, in
David S. Clark, ed, Comparative and Private International Law: Essays in
Honor of John Henry Merryman on his Seventieth Birthday 91 (Duncker &
Humblot 1990); William Twining, Rethinking Evidence: Exploratory Essays
219-61 (Basil Blackwell 1990).

[[\[FN158\]](#Document1zzFN_B158)]{.underline}. [[Federal Rule of
Evidence
403](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1004365&DocName=USFRER403&FindType=L)]{.underline}
prescribes the exclusion of evidence \"if its probative value is
substantially outweighed by the danger of unfair prejudice.\" The
balancing of relevancy and prejudice is central also to the question of
admissibility of character evidence, [[FRE
404(a)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1004365&DocName=USFRER404&FindType=L)]{.underline},
and evidence of past crimes, wrongs, or acts, [[FRE
404(b)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1004365&DocName=USFRER404&FindType=L)]{.underline}.

[[\[FN159\]](#Document1zzFN_B159)]{.underline}. See, for example,
Richard O. Lempert, Samuel R. Gross, and James S. Liebman, A Modern
Approach to Evidence: Text, Problems, Transcripts and Cases 228-39 (West
3d ed 2000) (applying Bayesian analysis to explain basic concepts in
evidence).

[[\[FN160\]](#Document1zzFN_B160)]{.underline}. See, for example, David
H. Kaye, Introduction: What Is Bayesianism?, in Tillers and Green, eds,
Probability and Inference in the Law of Evidence 1 (cited in note 157).

[[\[FN161\]](#Document1zzFN_B161)]{.underline}. See, for example,
Lempert, Gross, and Liebman, A Modern Approach to Evidence at 237 (cited
in note 159); Reid Hastie, Introduction, in Hastie, ed, Inside the Juror
3, 15 (cited in note 147).

[[\[FN162\]](#Document1zzFN_B162)]{.underline}. For similar reasons,
mathematical models have also been called meter models. As Lola Lopes
explains, \"The meter model is based on the conception that inside the
head are one or more mechanisms that continuously track, and can read
out, one or more values that reflect the juror\'s current evaluation of
the evidence.\" Lola Lopes, Two Conceptions of the Juror, in Hastie, ed,
Inside the Juror 255, 255 (cited in note 147).

[[\[FN163\]](#Document1zzFN_B163)]{.underline}. See Ronald J. Allen,
Rationality, Algorithms, and Juridical Proof: A Preliminary Inquiry, 1
Intl J Evid & Proof 254 (1997); Ronald J. Allen, [[Factual Ambiguity and
a Theory of Evidence, 88 Nw U L Rev 604
(1994)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1214&FindType=Y&SerialNum=0103411462)]{.underline}
(addressing three ways in which the relative plausibility theory is
superior to Bayesian theory). For a recent formulation, see Ronald J.
Allen and Brian Leiter, [[Naturalized Epistemology and the Law of
Evidence, 87 Va L Rev 1491, 1527-37
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1359&FindType=Y&ReferencePositionType=S&SerialNum=0287627320&ReferencePosition=1527)]{.underline}
(explaining the emergence of relative plausibility theory as a response
to Bayesian theory). For Bayesian-based critiques, see Dale A. Nance,
[[Naturalized Epistemology and the Critique of Evidence Theory, 87 Va L
Rev 1551, 1595-1616
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1359&FindType=Y&ReferencePositionType=S&SerialNum=0287627321&ReferencePosition=1595)]{.underline}
(claiming Allen and Leiter did not sufficiently realize the role for
Bayesianism in the naturalized epistemology discussion); Richard D.
Friedman, \"E\" is for [[Eclectic: Multiple Perspectives on Evidence, 87
Va L Rev 2029, 2040-48
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1359&FindType=Y&ReferencePositionType=S&SerialNum=0287627330&ReferencePosition=2040)]{.underline}
(elucidating Bayesian responses to Allen and Leiter).

[[\[FN164\]](#Document1zzFN_B164)]{.underline}. For use of the term
Bayesioskeptic, see Richard D. Friedman, [[Economic Analysis of
Evidentiary Law: An Underused Tool, an Underplowed Field, 19 Cardozo L
Rev 1531, 1535
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1441&FindType=Y&ReferencePositionType=S&SerialNum=0108956089&ReferencePosition=1535)]{.underline}.

[[\[FN165\]](#Document1zzFN_B165)]{.underline}. See [[Allen, 88 Nw U L
Rev at 604 (cited in note
163)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1214&FindType=Y&ReferencePositionType=S&SerialNum=0103411462&ReferencePosition=604)]{.underline}
(\"(C)ognitive psychology generally, and research into jury
decisionmaking specifically, ( ) have made it rather plain that
virtually no one thinks as the (Bayesian) legal theory requires.\");
Allen and Leiter, [[87 Va L Rev at 1528 (cited in note
163)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1359&FindType=Y&ReferencePositionType=S&SerialNum=0287627320&ReferencePosition=1528)]{.underline}.

[[\[FN166\]](#Document1zzFN_B166)]{.underline}. See generally Reid
Hastie and Nancy Pennington, Explanation-Based Decision Making, in Terry
Connolly, Hal R. Arkes, and Kenneth R. Hammond, eds, Judgment and
Decision Making: An Interdisciplinary Reader 212 (Cambridge 2d ed 2000);
Nancy Pennington and Reid Hastie, The Story Model for Juror
Decisionmaking, in Hastie, Inside the Juror 192 (cited in note 147).

[[\[FN167\]](#Document1zzFN_B167)]{.underline}. For experimental
results, see Nancy Pennington and Reid Hastie, Explaining the Evidence:
Tests of the Story Model for Juror Decision Making, 62 J Personality &
Soc Psych 189 (1992) (finding that story model constructions were more
likely to be used when jurors are asked to make a global judgment at the
end of the case, but linear models were more likely to be used when
jurors are asked to make judgments after each evidence block); Nancy
Pennington and Reid Hastie, Explanation-Based Decision Making: Effects
of Memory Structure on Judgment, 14 J Exper Psych: Learning, Memory &
Cognition 521 (1988) (finding that manipulating the order in which
evidence was presented shifted verdicts toward the most easily
constructed story); Nancy Pennington and Reid Hastie, Evidence
Evaluation in Complex Decision Making, 51 J Personality & Soc Psych 242
(1986) (finding that jurors organize evidence into causal relationships
when asked to decide on a verdict). The story model was preceded by work
by Lance Bennett and Martha Feldman. See W. Lance Bennett and Martha S.
Feldman, Reconstructing Reality in the Courtroom: Justice and Judgment
in American Culture 41-90 (Rutgers 1981).

[[\[FN168\]](#Document1zzFN_B168)]{.underline}. Compare [[Allen and
Leiter, 87 Va L Rev at 1507-10 (cited in note
163)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1359&FindType=Y&ReferencePositionType=S&SerialNum=0287627320&ReferencePosition=1507)]{.underline}
(critiquing Bayes Theorem on both conceptual and empirical grounds and
charging that computational complexity undermines its plausibility),
with Nance, [[87 Va L Rev at 1599-1602 (cited in note
163)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1359&FindType=Y&ReferencePositionType=S&SerialNum=0287627321&ReferencePosition=1599)]{.underline}
(defending Bayes Theorem from the computational complexity argument on
both descriptive and prescriptive grounds).

As an exception to this tendency, some Bayesian-oriented evidence
scholars have been rather conciliatory on the question of empirical
validity. See Richard Lempert, Of Flutes, Oboes, and the As If World of
Evidence Law, 1 Intl J Evid & Proof 316, 320 (1997) (emphasizing that
applying Bayes Theorem to evidence law does not depend on its
descriptive accuracy); Richard D. Friedman, Answering the
Bayesioskeptical Challenge, 1 Intl J Evid & Proof 276, 291 (1997)
(same); Lempert, 75 Mich L Rev at 1023, 1056 (cited in note 157) (same).

[[\[FN169\]](#Document1zzFN_B169)]{.underline}. See [[Allen, 88 Nw U L
Rev at 632 n 88 (cited in note
163)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1214&FindType=Y&ReferencePositionType=S&SerialNum=0103411462&ReferencePosition=632)]{.underline}
(stating that free proof is implicit in his proposed theory of
evidence); Allen and Leiter, [[87 Va L Rev at 1536 (cited in note
163)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1359&FindType=Y&ReferencePositionType=S&SerialNum=0287627320&ReferencePosition=1536)]{.underline}
(arguing that liberal standards of admission support the relative
plausibility theory). The argument is also made explicitly by one of
Allen\'s students. See Michael S. Pardo, Comment, [[Juridical Proof,
Evidence, and Pragmatic Meaning: Toward Evidentiary Holism, 95 Nw U L
Rev 399, 441
(2000)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1214&FindType=Y&ReferencePositionType=S&SerialNum=0282119336&ReferencePosition=441)]{.underline}
(advocating a shift to a free proof system based on the holistic
account).

[[\[FN170\]](#Document1zzFN_B170)]{.underline}. While this experimental
finding belies the syntactic rules of uni-directional inference, it does
not necessarily contradict the Bayesian tenet of calculating posterior
odds by updating the likelihood ratios. It is theoretically possible
that evidence undergoes coherence shifts and then gets calculated by
means of a Bayesian updating. Though I believe this possibility to be
rather remote, our experimental results do not prove or disprove any
specific algorithm.

[[\[FN171\]](#Document1zzFN_B171)]{.underline}. See note 60 and
accompanying text.

[[\[FN172\]](#Document1zzFN_B172)]{.underline}. It should also be noted
that relative plausibility theory is claimed to be based on
connectionist conceptions of cognition. See [[Allen and Leiter, 87 Va L
Rev at 1528 (cited in note
163)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1359&FindType=Y&ReferencePositionType=S&SerialNum=0287627320&ReferencePosition=1528)]{.underline},
referencing Paul Thagard, Conceptual Revolutions 25-27 (Princeton 1992).

[[\[FN173\]](#Document1zzFN_B173)]{.underline}. David A. Schum and Anne
W. Martin, Formal and Empirical Research on Cascaded Inference in
Jurisprudence, 17 L & Socy Rev 105, 144 (1982). Schum and Martin found
that participants interpreted contradictory testimony as either
probatively valueless or even corroborative, and \"double counted\"
corroboratively redundant testimony. Consistent with coherence-based
reasoning, these findings were observed only when participants were
instructed to make overall evaluations of the evidence; they were not
obtained when the evidence was assessed piecemeal. See id.

[[\[FN174\]](#Document1zzFN_B174)]{.underline}. See Brian C. Smith, et
al, Jurors\' Use of Probabilistic Evidence, 20 L & Human Behav 49
(1996).

[[\[FN175\]](#Document1zzFN_B175)]{.underline}. It should be noted,
however, that the findings of coherence-based reasoning are not
radically discordant with some of the more nuanced and sophisticated
views offered by Bayesian scholars. For example, Richard Lempert has
approvingly discussed the contribution of the story model to evidence
law. Richard Lempert, [[Telling Tales in Court: Trial Procedure and the
Story Model, 13 Cardozo L Rev 559
(1991)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1441&FindType=Y&SerialNum=0102689917)]{.underline}
(exploring the utility of the story model in each aspect of the trial
process). Similarly, Richard Friedman has espoused a hybrid
\"storytelling Bayesian approach,\" which is not very dissimilar to
coherence-based reasoning. Friedman explains that

an observer might at any time make a set of probability assessments that
are inconsistent. If the inconsistency is a glaring one, the cognitive
dissonance will be apparent, and the observer will adjust the
assessments to bring them more closely into line. This adjustment might
involve altering any probability assessment, including a prior
probability. The tendency will be to move towards equilibrium, in which
there are no inconsistencies, but new information might disrupt the
situation and start the process again.

Friedman, 1 Intl J Evid & Proof at 289 (cited in note 168) (footnote
omitted). Both Lempert and Friedman have also relaxed the Bayesian
precept on separately updating the likelihood ratios of every piece of
evidence, suggesting instead that evidence can be \"chunked,\" or
\"batched\" in ways that closely resemble coherence-based processing.
See id at 288; Lempert, 1 Intl J Evid & Proof at 317 (cited in note
168).

[[\[FN176\]](#Document1zzFN_B176)]{.underline}. Pennington and Hastie,
The Story Model for Juror Decision Making at 196 (cited in note 166)
(\"Stories involve human action sequences connected by relationships of
physical causality and intentional causality between events.\").

[[\[FN177\]](#Document1zzFN_B177)]{.underline}. Twining, Rethinking
Evidence at 225 (cited in note 157).

[[\[FN178\]](#Document1zzFN_B178)]{.underline}. The story model\'s
applicability is equally questionable in tasks of evidence integration
outside the realm of legal decisions, such as judgments about historical
and physical events, as well as scientific knowledge. For applications
of constraint satisfaction-based processing to such domains, see Keith
J. Holyoak and Paul Thagard, Mental Leaps: Analogy in Creative Thought
(MIT 1995); Thagard, Coherence in Thought and Action (cited in note 25).

[[\[FN179\]](#Document1zzFN_B179)]{.underline}. The extension of
holistic processing to identity cases is noteworthy, in that they
account for a great deal of convictions of innocent people. For errors
in adjudication of identity cases, see generally Barry Scheck, Peter
Neufeld, and Jim Dwyer, Actual Innocence: Five Days to Execution and
Other Dispatches from the Wrongly Convicted (Doubleday 2000).

[[\[FN180\]](#Document1zzFN_B180)]{.underline}. It should also be noted
that while the story model is compelling on both theoretical and
methodological grounds, it did not include a baseline comparison. By
enabling a comparison between participants\' representations of the
evidence at two points in time, coherence-based reasoning research
provides more direct proof of the reconstruction of evidence.

[[\[FN181\]](#Document1zzFN_B181)]{.underline}. See Melanie C. Green and
Timothy C. Brock, The Role of Transportation in the Persuasiveness of
Public Narratives, 79 J Personality & Soc Psych 701 (2000) (showing that
evaluations of facts and beliefs are related to the story\'s narrative
transportability); James F. Voss, Jennifer Wiley, and Rebecca Sandak, On
the Use of Narrative as Argument, in Susan R. Goldman, Arthur C.
Graesser, and Paul van den Broek, eds, Narrative Comprehension,
Causality, and Coherence: Essays in Honor of Tom Trabasso 235 (Lawrence
Erlbaum 1999) (demonstrating the effect of narrative structure on
simulated juror verdicts).

[[\[FN182\]](#Document1zzFN_B182)]{.underline}. [[519 US 172
(1997)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&SerialNum=1997025956)]{.underline}.

[[\[FN183\]](#Document1zzFN_B183)]{.underline}. See [[18 USC
](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=18USCAS922&FindType=L)[§](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=18USCAS922&FindType=L)[
922(g)
(2000)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=18USCAS922&FindType=L)]{.underline}.
For factual findings, see
[[Old](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1997025956&ReferencePosition=174)]{.underline}
[[Chief, 519 US at
174-77](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1997025956&ReferencePosition=174)]{.underline}.

[[\[FN184\]](#Document1zzFN_B184)]{.underline}. See [[Old Chief, 519 US
at
175.](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1997025956&ReferencePosition=175)]{.underline}
Appellant requested the trial court to \"instruct the jury that he has
been convicted of a crime punishable by imprisonment exceeding one (1)
year.\" Id.

[[\[FN185\]](#Document1zzFN_B185)]{.underline}. Justice Souter\'s
opinion was joined by Justices Stevens, Ginsburg, Breyer, and Kennedy.
Id at 173.

[[\[FN186\]](#Document1zzFN_B186)]{.underline}. Id at 182.

[[\[FN187\]](#Document1zzFN_B187)]{.underline}. Id at 187.

[[\[FN188\]](#Document1zzFN_B188)]{.underline}. There is a general sense
among legal psychologists that the legal system harbors unrealistic
conceptions of human cognition. There is considerable doubt as to
jurors\' ability to accurately gauge their own susceptibility to bias,
to follow judicial instructions to disregard inadmissible evidence, to
consider admissible evidence only for a designated purpose, to
accurately detect liars, and to be capable of determining truth from
scientific evidence. See, for example, Roselle L. Wissler and Michael J.
Saks, On the Inefficacy of Limiting Instructions: When Jurors Use Prior
Conviction Evidence to Decide on Guilt, 9 L & Human Behav 37 (1985);
Richard O. Lempert, [[Built on Lies: Preliminary Reflections on Evidence
Law as an Autopoietic System, 49 Hastings L J 343
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1159&FindType=Y&SerialNum=0110536060)]{.underline}
(\"My thesis is that our system of evidentiary rules . . . works in part
because it often falsely portrays reality.\"). Indeed, Lempert has
celebrated Old Chief on these grounds. See Richard O. Lempert, Narrative
Relevance, Imagined Juries, and a Supreme Court Inspired Agenda for Jury
Research, 21 SLU Pub L Rev 15 (2002) (arguing that the Old Chief Court
complicates the questions that must be answered in determining the role
of human frailties in establishing evidence admissibility).

The Court\'s decision is an exception to the other applications
discussed in this Article since it is not borne by rationalist
assumptions. On the contrary, the Court\'s endorsement of holism breaks
from a priori conceptions about juror rationality. The problem, as I
discuss below, lies with the normative implications of the issue.

[[\[FN189\]](#Document1zzFN_B189)]{.underline}. [[Old Chief, 519 US at
188](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1997025956&ReferencePosition=188)]{.underline}.

[[\[FN190\]](#Document1zzFN_B190)]{.underline}. See Lempert, Gross, and
Liebman, A Modern Approach to Evidence at 251-54 (cited in note 159)
(explaining the relationship between narrative relevance and
demonstrative evidence).

[[\[FN191\]](#Document1zzFN_B191)]{.underline}. For the conventional
test, see [[FRE
401](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1004365&DocName=USFRER401&FindType=L)]{.underline}
(\"\'Relevant evidence\' means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the
evidence.\").

[[\[FN192\]](#Document1zzFN_B192)]{.underline}. [[Old Chief, 519 US at
187-88](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1997025956&ReferencePosition=187)]{.underline}.

[[\[FN193\]](#Document1zzFN_B193)]{.underline}. See [[id at
188.](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=1997025956)]{.underline}

[[\[FN194\]](#Document1zzFN_B194)]{.underline}. As for the first
argument, the Court seems to adopt a highly distrustful view of the
jury. If, as the Court suggests, a juror might lose interest in criminal
cases, which tend to be inherently interesting, because some especially
interesting fact is left out, then one ought to reconsider the trust we
place in the institution of the jury. What can be said about jury duty
on cases that lack drama altogether? We nonetheless take seriously jury
verdicts in lifeless cases involving violations of tax laws, building
codes, and other dreary technical issues. We seem to believe that jurors
are capable of sitting through such cases and paying due attention
without any particular form of stimulation.

The argument that jurors ought to be presented with evidence merely to
fulfill their expectations is similarly problematic. Satisfying jurors\'
expectations by providing them with evidence that would otherwise be
ruled prejudicial seems to be a perversion of the normative role of
evidence law. Furthermore, the role of the juror is highly regulated and
restricted in ways that are bound to frustrate curious minds. Jurors are
regularly deprived of large and crucial segments of evidence: they are
forbidden to ask the witnesses questions and to explore the scene of the
crime, they are often deprived of the testimony of the criminal
defendant, they are not allowed to take into account anticipated
sentences, and much more. One ought to wonder whether satisfaction of
jurors\' expectations warrants admitting potentially prejudicial
evidence.

For critical analyses of the Court\'s reasoning, see D. Michael
Risinger, [[John Henry Wigmore, Johnny Lynn Old Chief, and \"Legitimate
Moral Force\": Keeping the Courtroom Safe for Heartstrings and Gore, 49
Hastings L J 403, 455- 58
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1159&FindType=Y&ReferencePositionType=S&SerialNum=0110536067&ReferencePosition=455)]{.underline}
(characterizing the opinion as falling into the \"near mystical excess
of some contemporary narrative theorists\"); James Joseph Duane,
\"[[Screw Your Courage to the Sticking-Place\": The Roles of Evidence,
Stipulations, and Jury Instructions in Criminal Verdicts, 49 Hastings L
J 463
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1159&FindType=Y&SerialNum=0110536068)]{.underline}
(arguing that, in Old Chief, the Court\'s supposed justifications of
narrative integrity and evidentiary richness are implausible).

[[\[FN195\]](#Document1zzFN_B195)]{.underline}. See text accompanying
notes 168-69.

[[\[FN196\]](#Document1zzFN_B196)]{.underline}. See Part I.B.5.

[[\[FN197\]](#Document1zzFN_B197)]{.underline}. See text accompanying
note 189.

[[\[FN198\]](#Document1zzFN_B198)]{.underline}. For examples of such
research, see Daniel T. Gilbert, Ordinary Personology, in Daniel T.
Gilbert, Susan T. Fiske, and Gardner Lindzey, eds, 2 The Handbook of
Social Psychology 89 (McGraw-Hill 4th ed 1998); Susan T. Fiske,
Stereotyping, Prejudice and Discrimination, in Gilbert, Fiske, and
Lindzey, eds, 2 The Handbook of Social Psychology 357. For an
application of constraint satisfaction models to stereotyping, see Kunda
and Thagard, 103 Psych Rev 284 (cited in note 35).

[[\[FN199\]](#Document1zzFN_B199)]{.underline}. See [[FRE
403](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1004365&DocName=USFRER403&FindType=L)]{.underline},
Advisory Committee\'s Note.

[[\[FN200\]](#Document1zzFN_B200)]{.underline}. Such evidence also meets
Justice Souter\'s other objectives of sustaining jurors\' willingness to
determine the case and convincing them of the moral reasonableness of a
conviction. The term \"heartstrings and gore\" is borrowed from Michael
Risinger, [[49 Hastings L J at 403 (cited in note
194)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1159&FindType=Y&ReferencePositionType=S&SerialNum=0110536067&ReferencePosition=403)]{.underline}.

[[\[FN201\]](#Document1zzFN_B201)]{.underline}. Participants betting on
a horse displayed overconfidence in assessing the likelihood of winning,
and participants playing the role of an attorney displayed
optimistically distorted perceptions of the case. See text accompanying
notes 91-93.

[[\[FN202\]](#Document1zzFN_B202)]{.underline}. For example, Douglas,
Lyon, and Ogloff have demonstrated that showing participants photographs
of a murder victim\'s body results in higher levels of conviction than
when the state of the body was described verbally in a medical
examiner\'s report, despite the irrelevance of the state of the body to
the question at trial (the defense was based on alibi testimony). The
heightened level of convictions was found to be mediated by the
participants\' reported emotional states. See Kevin S. Douglas, David R.
Lyon, and James R. Ogloff, The Impact of Graphic Photographic Evidence
on Mock Jurors\' Decisions in a Murder Trial: Probative or Prejudicial?,
21 L & Human Behav 485 (1997). Other research supports this finding.
See, for example, James R.P. Ogloff and Neil Vidmar, The Impact of
Pretrial Publicity on Jurors: A Study to Compare the Relative Effects of
Television and Print Media in a Child Sex Abuse Case, 18 L & Human Behav
507 (1994) (showing that jurors were more likely to believe victim
testimony if they had previously heard about the story in the media);
Denise H. Whalen and Fletcher A. Blanchard, Effects of Photographic
Evidence on Mock Juror Judgment, 12 J Applied Soc Psych 30, 33-38 (1982)
(demonstrating the effect of emotions on the determination of damages in
a tort case). For a more sanguine approach to the effect of emotionality
on juror decisions, see Eric A. Posner, [[Law and the Emotions, 89
Georgetown L J 1977, 1999-2000
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1146&FindType=Y&ReferencePositionType=S&SerialNum=0284250441&ReferencePosition=1999)]{.underline}
(arguing that emotions such as disgust and anger will not necessarily
interfere with jurors\' ability to deliberate effectively).

[[\[FN203\]](#Document1zzFN_B203)]{.underline}. See Figure 4 and text
accompanying note 58.

[[\[FN204\]](#Document1zzFN_B204)]{.underline}. See text accompanying
note 60.

[[\[FN205\]](#Document1zzFN_B205)]{.underline}. The reported ratings
represent the mean value for each of the groups of participants, and
thus they conceal the true distribution of ratings. One can easily
imagine that the coherence shifts made no difference for participants
who initially agreed strongly with the inculpating evidence, nor did
they affect those who firmly agreed with the exculpating evidence. These
participants would vote to convict and acquit respectively, regardless
of the coherence shifts. Coherence shifts, however, are bound to make a
big difference for the presumably sizeable group of people who started
off around the point of indifference or with moderate inclinations
toward conviction and ultimately decided to convict. Absent the
cognitive transformation, these participants would (and should) have
decided, perhaps reluctantly, to acquit. They convicted nonetheless due
to the extra measure of polarization that drove their mental models and
confidence levels above the standard of proof threshold.

[[\[FN206\]](#Document1zzFN_B206)]{.underline}. See text accompanying
note 61.

[[\[FN207\]](#Document1zzFN_B207)]{.underline}. An increase in the
likelihood that a single juror will decide to convict is bound to carry
over to decisions by juries. It has been shown repeatedly in both
experimental and naturalistic settings that jury verdicts are highly
contingent on the predeliberation distribution of votes. In close cases,
a shift of as few as one or two jurors can bear a strong impact on the
distribution of jury verdicts. See Harry Kalven, Jr. and Hans Zeisel,
The American Jury (Little, Brown 1966) (arguing, in part, that the
majority opinion predeliberation will be equal to the final verdict);
Marla Sandys and Ronald C. Dillehay, First-Ballot Votes, Predeliberation
Dispositions, and Final Verdicts in Jury Trials, 19 L & Human Behav 175
(1995) (confirming, mostly, the Kalven and Zeisel findings). On
experimentally based findings, see, for example, Dennis J. Devine, et
al, Jury Decision Making: 45 Years of Empirical Research on Deliberating
Groups, 7 Psych, Pub Pol & L 622 (2001) (reviewing 206 major studies
conducted between 1955 and 1999 involving jury decision making).

[[\[FN208\]](#Document1zzFN_B208)]{.underline}. See Mirjan R. Damaska,
Evidence Law Adrift 27 (Yale 1997) (arguing that juries follow a
decision process with which they are familiar, and which is similar to
one used in \"ordinary life and personal affairs\").

[[\[FN209\]](#Document1zzFN_B209)]{.underline}. See text accompanying
note 105.

[[\[FN210\]](#Document1zzFN_B210)]{.underline}. See, for example,
Jeffrey J. Rachlinski, [[Heuristics and Biases in the Courts: Ignorance
or Adaptation?, 79 Or L Rev 61
(2000)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1219&FindType=Y&SerialNum=0283026935)]{.underline}
(highlighting law\'s adaptive characteristic). On the efficiency of the
common law, see Richard A. Posner, Economic Analysis of Law Part 2
(Aspen 6th ed 2003).

[[\[FN211\]](#Document1zzFN_B211)]{.underline}. The reason for focusing
on the standard of proof is that it is more intimately connected with
the rate of conviction than evidentiary rules and other trial
procedures, and it is also readily modifiable.

[[\[FN212\]](#Document1zzFN_B212)]{.underline}. [[397 US 358
(1970)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&SerialNum=1970134205)]{.underline}.

[[\[FN213\]](#Document1zzFN_B213)]{.underline}. [[Id at
371](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=1970134205)]{.underline}
(Harlan concurring).

[[\[FN214\]](#Document1zzFN_B214)]{.underline}. William M. Blackstone, 4
Commentaries at \*358. For a helpful discussion, see Lawrence Solan,
[[Refocusing the Burden of Proof in Criminal Cases: Some Doubt about
Reasonable Doubt, 78 Tex L Rev 105
(1999)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1251&FindType=Y&SerialNum=0113115391)]{.underline}
(discussing the history and motivations behind the standard).

[[\[FN215\]](#Document1zzFN_B215)]{.underline}. The value of 90 percent
shows up in both normative and descriptive analyses. According to
decision theory, a ratio of nine false acquittals to one false
conviction should lead to a standard of proof of about 90 percent. See
Francis C. Dane, In Search of Reasonable Doubt: A Systematic Examination
of Selected Quantification Approaches, 9 L & Human Behav 141, 154-56
(1985) (testing several quantification approaches to determine practical
reasonable doubt). But see Erik Lillquist, [[Recasting Reasonable Doubt:
Decision Theory and the Virtues of Variability, 36 UC Davis L Rev 85,
114-17
(2002)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=2779&FindType=Y&ReferencePositionType=S&SerialNum=0291406151&ReferencePosition=114)]{.underline}
(criticizing these conclusions and suggesting supplementing the calculus
with the utilities of correct acquittals and correct convictions).

[[\[FN216\]](#Document1zzFN_B216)]{.underline}. Research that monitors
people\'s perceptions of the standard reveals similar values. While
assessments vary somewhat with the methodology of elicitation, the
responses tend to converge in the range of 80 percent to 90 percent. See
Reid Hastie, Algebraic Models at 102 (cited in note 147) (listing
results from numerous empirical studies).

[[\[FN217\]](#Document1zzFN_B217)]{.underline}. The consequence of
source credibility on the effectiveness of persuasion is broadly
acknowledged, and has become a classic experimental finding. See, for
example, Shelly Chaiken and Durairaj Maheswaran, Heuristic Processing
Can Bias Systematic Processing: Effects of Source Credibility, Argument
Ambiguity, and Task Importance on Attitude Judgment, 66 J Personality &
Soc Psych 460, 464-66 (1994); Martin Fishbein and Icek Ajzen, Belief,
Attitude, Intention, and Behavior: An Introduction to Theory and
Research 451-509 (Addison-Wesley 1975); Carl I. Hovland, Irving L.
Janis, and Harold H. Kelley, Communication and Persuasion: Psychological
Studies of Opinion Change 25-48 (Yale 1953).

[[\[FN218\]](#Document1zzFN_B218)]{.underline}. The \"accentuation
effect\" is the tendency to exaggerate the discrepancies between one\'s
own position and those expressed by people on the opposite side of the
issue. The stronger one\'s own views, the more extreme the other
position seems. See Robyn M. Dawes, David Singer, and Frank Lemons, An
Experimental Analysis of the Contrast Effect and Its Implications for
Intergroup Communication and the Indirect Assessment of Attitude, 21 J
Personality & Soc Psych 281, 294 (1972) (\"Subjects in the ( )
experiments had a strong tendency to exaggerate the differences in
attitude between themselves and the people with whom they disagree.\");
Robert J. Robinson, et al, Actual versus Assumed Differences in
Construal: \"Naive Realism\" in Intergroup Perception and Conflict, 68 J
Personality & Soc Psych 404 (1995) (studying differences of opinion on
abortion and race).

[[\[FN219\]](#Document1zzFN_B219)]{.underline}. See Zakary L. Tormala
and Richard E. Petty, What Doesn\'t Kill Me Makes Me Stronger: The
Effects of Resisting Persuasion on Attitude Certainty, 83 J Personality
& Soc Psych 1298 (2002) (showing that high certainty in one\'s initial
attitudes increased resistance to subsequent attacks and further
enhanced the correspondence between attitudes and behavioral
intentions).

[[\[FN220\]](#Document1zzFN_B220)]{.underline}. See, for example,
O\'Malley, Grenig, and Lee, Federal Jury Practice & Instructions § 10.01
(cited in note 151) (listing suggested jury instructions); [[California
Jury Instructions: Criminal
](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0108826&FindType=Y&SerialNum=0290314705)[§](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0108826&FindType=Y&SerialNum=0290314705)[
0.50 at 4-9 (West 6th ed 1996 & Supp
2002](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0108826&FindType=Y&SerialNum=0290314705)]{.underline})
(providing a preliminary admonition to the jury).

[[\[FN221\]](#Document1zzFN_B221)]{.underline}. See Part I.B.8.

[[\[FN222\]](#Document1zzFN_B222)]{.underline}. See, for example, Darryl
K. Brown, Regulating Decision Effects of Legally Sufficient Jury
Instructions, 73 § Cal L Rev 1105, 1105 (2000) (indicating cases and
empirical studies suggesting that juries often get instructions wrong);
Stephen P. Garvey, Sheri Lynn Johnson, and Paul Marcus, [[Correcting
Deadly Confusion: Responding to Jury Inquiries in Capital Cases, 85
Cornell L Rev 627, 628-33
(2000)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1111&FindType=Y&ReferencePositionType=S&SerialNum=0115776152&ReferencePosition=628)]{.underline}
(discussing jury misunderstandings). For a review of the empirical
research, see Phoebe C. Ellsworth and Alan Reifman, Juror Comprehension
and Public Policy: Perceived Problems and Proposed Solutions, 6 Psych,
Pub Pol & L 788, 788-92 (2000).

[[\[FN223\]](#Document1zzFN_B223)]{.underline}. See, for example,
Lempert, 1 Intl J Evid & Proof at 316-17 (cited in note 168). For a
review of the empirical research, see Joel D. Lieberman and Bruce D.
Sales, What Social Science Teaches Us about the Jury Instruction
Process, 3 Psych, Pub Pol & L 589 (1997).

[[\[FN224\]](#Document1zzFN_B224)]{.underline}. See, for example, Peter
Tiersma, The [[Rocky Road to Legal Reform: Improving the Language of
Jury Instructions, 66 Brooklyn L Rev 1081, 1084-85
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3033&FindType=Y&ReferencePositionType=S&SerialNum=0287821993&ReferencePosition=1084)]{.underline}
(noting studies that conclude that instructions are hard for juries to
remember, understand, and apply). See also Lieberman and Sales, 3 Psych,
Pub Pol & L at 623-39 (cited in note 223) (recounting various empirical
studies on jury memory and comprehension).

[[\[FN225\]](#Document1zzFN_B225)]{.underline}. This reform could
benefit from further critical examination and debate. In addition to
replicating the moderating effect, it would be worth verifying that it
will not have a debilitative effect on jurors\' ability to decide on a
verdict. There is good reason to believe that the moderating
intervention will improve group deliberation, but it might also have
other unintended effects. I am currently involved in experimentation
designed to replicate the effect and to evaluate its advantages and
potential collateral effects.

[[\[FN226\]](#Document1zzFN_B226)]{.underline}. See William M. Landes
and Richard A. Posner, [[Harmless Error, 30 J Legal Stud 161, 161
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1458&FindType=Y&ReferencePositionType=S&SerialNum=0283003964&ReferencePosition=161)]{.underline}.

[[\[FN227\]](#Document1zzFN_B227)]{.underline}. As Wigmore explained,
whether to grant a new trial is \"a great question, because . . . the
whole status of the law of evidence, as well as the efficiency of our
methods of doing justice, is dependent upon the answer.\" John H.
Wigmore, New Trials for Erroneous Rulings upon Evidence: A Practical
Problem for American Justice, 3 Colum L Rev 433, 433 (1903). See also
Roger J. Traynor, The Riddle of Harmless Error 80 (Ohio State 1970)
(\"(T)he evaluation of an error as harmless or prejudicial is one of the
most significant tasks of an appellate court, as well as one of the most
complex.\").

[[\[FN228\]](#Document1zzFN_B228)]{.underline}. The Court repeatedly
reminds us that \"the Constitution entitles a criminal defendant to a
fair trial, not a perfect one.\" [[Delaware v Van Arsdall, 475 US 673,
681
(1985)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1986117817&ReferencePosition=681)]{.underline}.

[[\[FN229\]](#Document1zzFN_B229)]{.underline}. See Herbert L. Packer,
The Limits of the Criminal Sanction 149-73 (Stanford 1968).

[[\[FN230\]](#Document1zzFN_B230)]{.underline}. See, for example, [[Van
Arsdall, 475 US at
681](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1986117817&ReferencePosition=681)]{.underline}
(\"The harmless-error doctrine recognizes the principle that the central
purpose of a criminal trial is to decide the factual question of the
defendant\'s guilt or innocence.\").

[[\[FN231\]](#Document1zzFN_B231)]{.underline}. See, for example,
[[Kotteakos v United States, 328 US 750, 760
(1946)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1946114131&ReferencePosition=760)]{.underline}
(concluding that the congressional intent in limiting the scope for
reversal was to preserve the right to a fair trial \"without giving men
fairly convicted the multiplicity of loopholes which any highly rigid
and minutely detailed scheme of errors, especially in relation to
procedure, would engender and reflect in a printed record\").

Harmless-error doctrine developed as a reaction to a state in which
federal courts were viewed as \"impregnable citadels of technicality.\"
Marcus A. Kavanagh, Improvement of Administration of Criminal Justice by
Exercise of Judicial Power, 11 ABA J 217, 222-23 (1925).

[[\[FN232\]](#Document1zzFN_B232)]{.underline}. See, for example, [[Rose
v Clark, 478 US 570, 588
(1986)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1986134012&ReferencePosition=588)]{.underline}
(Stevens concurring) (\"(O)ur Constitution, and our criminal justice
system, protect other values besides the reliability of the guilt or
innocence determination. A coherent harmless-error jurisprudence should
similarly respect those values.\").

[[\[FN233\]](#Document1zzFN_B233)]{.underline}. See, for example, [[id
at
588-89](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=1986134012)]{.underline}
(warning that a broad application of the harmless-error rule \"can only
encourage prosecutors to subordinate the interest in respecting the
Constitution to the ever-present and always powerful interest in
obtaining a conviction in a particular case\"); [[Harrington v
California, 395 US 250, 255
(1969)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1969133000&ReferencePosition=255)]{.underline}
(Brennan dissenting) (warning that the deterrent effect of
constitutional protections \"on the actions of both police and
prosecutors, not to speak of trial courts, will be significantly
undermined\").

[[\[FN234\]](#Document1zzFN_B234)]{.underline}. Justice Traynor argued,
\"If appellate judges forthrightly opened the way to a new trial
whenever a judgment was contaminated by error, there would be a
cleansing effect on the trial process. A sharp appellate watch would in
the long run deter error at the outset, thereby lessening the need of
appeal and retrials.\" Traynor, Riddle of Harmless Error at 50 (cited in
note 227).

[[\[FN235\]](#Document1zzFN_B235)]{.underline}. Compare [[Van Arsdall,
475 US at
681](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1986117817&ReferencePosition=681)]{.underline}
(noting the principle that the fact that trials are intended foremost to
decide the factual question of guilt or innocence \"promotes public
respect for the criminal process by focusing on the underlying fairness
of the trial rather than on the virtually inevitable presence of
immaterial error\"), with [[Rose, 478 US at
588](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1986134012&ReferencePosition=588)]{.underline}
(Stevens concurring) (emphasizing that protecting constitutional values
besides the reliability of the determination of guilt or innocence
serves to strengthen public confidence in the administration of
justice).

[[\[FN236\]](#Document1zzFN_B236)]{.underline}. The determination of
harmfulness hinges on whether the error affected the defendant\'s
\"substantial rights.\" See [[FRCrP
52(a)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1004365&DocName=USFRCRPR52&FindType=L)]{.underline}
(\"(Any) error, defect, irregularity, or variance that does not affect
substantial rights must be disregarded.\"). See also [[FRCP
61](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1004365&DocName=USFRCPR61&FindType=L)]{.underline}
(\"The court at every stage of the proceeding must disregard any error
or defect in the proceeding which does not affect the substantial rights
of the parties.\").

[[\[FN237\]](#Document1zzFN_B237)]{.underline}. For representative
scholarly discussions, see generally Sam Kamin, [[Harmless Error and the
Rights/Remedies Split, 88 Va L Rev 1, 72, 78-86
(2002)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1359&FindType=Y&ReferencePositionType=S&SerialNum=0288274911&ReferencePosition=72)]{.underline}
(arguing that the state should be precluded from claiming harmless error
when they knew or should have known they were violating the defendant\'s
constitutional rights); Landes and Posner, [[30 J Legal Stud at 162-69
(cited in note
226)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1458&FindType=Y&ReferencePositionType=S&SerialNum=0283003964&ReferencePosition=162)]{.underline}
(establishing an economic model to maximize social welfare in
harmless-error rulings); Harry T. Edwards, To [[Err Is Human, But Not
Always Harmless: When Should Legal Error Be Tolerated?, 70 NYU L Rev
1167, 1205-09
(1995)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1206&FindType=Y&ReferencePositionType=S&SerialNum=0106329615&ReferencePosition=1205)]{.underline}
(arguing tentatively for a bright-line approach to the harmless-error
analysis of trial errors implicating the constitutional rights of the
defendant); Gregory Mitchell, [[Against \"Overwhelming\" Appellate
Activism: Constraining Harmless Error Review, 82 Cal L Rev 1335, 1341
(1994)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1107&FindType=Y&ReferencePositionType=S&SerialNum=0104964711&ReferencePosition=1341)]{.underline}
(arguing that \"the overwhelming-evidence approach to harmless error
review is much too permissive of appellate activism, whereas the
contribution-to-conviction approach preserves the appellate court\'s
well-justified deferential role regarding findings of guilt\"); Henry P.
Monaghan, Harmless Error and the Valid Rule Requirement, 1989 § Ct Rev
195, 196 (arguing that harmless-error analysis is not appropriate if a
state court conviction is based on a constitutionally infirm rule); Tom
Stacy and Kim Dayton, [[Rethinking Harmless Constitutional Error, 88
Colum L Rev 79, 91-98
(1988)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3050&FindType=Y&ReferencePositionType=S&SerialNum=0101667145&ReferencePosition=91)]{.underline}
(grounding the harmless-error review in the purpose of the right
potentially infringed upon); Martha A. Field, [[Assessing the
Harmlessness of Federal Constitutional Error\--A Process in Need of a
Rationale, 125 U Pa L Rev 15, 60-61
(1976)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1268&FindType=Y&ReferencePositionType=S&SerialNum=0284403450&ReferencePosition=60)]{.underline}
(advocating an evaluation of the evidence to be excluded to determine
its persuasiveness); Stephen A. Saltzburg, The Harm of Harmless Error,
59 Va L Rev 988, 989-98 (1973) (advocating for different harmless-error
review standards in civil and criminal contexts); Traynor, Riddle of
Harmless Error at 33-37 (cited in note 227) (suggesting the application
of a \"high probability (of) harmlessness\" test to help evaluate which
errors are, in fact, harmless).

[[\[FN238\]](#Document1zzFN_B238)]{.underline}. Prior to 1967, only
nonconstitutional errors were subject to harmless-error review. That
changed with the landmark case of [[Chapman v California, 386 US 18, 22
(1967)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1967129471&ReferencePosition=22)]{.underline}.

[[\[FN239\]](#Document1zzFN_B239)]{.underline}. See [[Brecht v
Abrahamson, 507 US 619, 637
(1993)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1993088996&ReferencePosition=637)]{.underline}
(shifting the burden to defendants who will not be entitled to habeas
relief \"unless they can establish that the trial error resulted in
\'actual prejudice\"\'). For a critical commentary, see John H. Blume
and Stephen P. Garvey, [[Harmless Error in Federal Habeas Corpus after
Brecht v. Abrahamson, 35 Wm & Mary L Rev 163
(1993)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=2984&FindType=Y&SerialNum=0103267865)]{.underline}.

[[\[FN240\]](#Document1zzFN_B240)]{.underline}. [[499 US 279
(1991)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&SerialNum=1991059720)]{.underline}.

[[\[FN241\]](#Document1zzFN_B241)]{.underline}. [[Id at
307-12](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=1991059720)]{.underline}
(differentiating trial error from structural errors for the purposes of
harmless-error analysis). For scholarly reactions to the dichotomy, see
Charles J. Ogletree, Jr., [[Arizona v. Fulminante: The Harm of Applying
Harmless Error to Coerced Confessions, 105 Harv L Rev 152, 161-65
(1991)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3084&FindType=Y&ReferencePositionType=S&SerialNum=0102256761&ReferencePosition=161)]{.underline}
(arguing that the Court\'s distinction between trial and structural
errors is unpersuasive); David McCord, The \"[[Trial\"/\"Structural\"
Error Dichotomy: Erroneous, and Not Harmless, 45 Kan L Rev 1401, 1454
(1997)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1527&FindType=Y&ReferencePositionType=S&SerialNum=0108234096&ReferencePosition=1454)]{.underline}
(arguing that the dichotomy is confusing to lower courts, further
complicating the harmless-error analysis).

[[\[FN242\]](#Document1zzFN_B242)]{.underline}. See note 237.

[[\[FN243\]](#Document1zzFN_B243)]{.underline}. [[386 US 18
(1967)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&SerialNum=1967129471)]{.underline}.

[[\[FN244\]](#Document1zzFN_B244)]{.underline}. [[Id at
20.](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=1967129471)]{.underline}

[[\[FN245\]](#Document1zzFN_B245)]{.underline}. Judge Edwards labels
this approach the effect-on-the-verdict approach. Edwards, [[70 NYU L
Rev at 1171 (cited in note
237)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1206&FindType=Y&ReferencePositionType=S&SerialNum=0106329615&ReferencePosition=1171)]{.underline}.

[[\[FN246\]](#Document1zzFN_B246)]{.underline}. [[395 US 250
(1969)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&SerialNum=1969133000)]{.underline}.

[[\[FN247\]](#Document1zzFN_B247)]{.underline}. [[Id at
254](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=1969133000)]{.underline}
(concluding that the overwhelming guilt established by admissible
evidence negates the trial error). See also [[Brown v United States, 411
US 223, 231
(1973)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1973126369&ReferencePosition=231)]{.underline}
(citing the Harrington Court\'s harmless-error standard); [[Schneble v
Florida, 405 US 427, 430-31
(1972)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1972127091&ReferencePosition=430)]{.underline}
(comparing Schneble to Harrington); [[Milton v Wainwright, 407 US 371,
377
(1972)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1972127164&ReferencePosition=377)]{.underline}
(holding that the jury would have reached the same verdict even if the
defendant\'s statements to the police had not been admitted into
evidence). In Rose v Clark, for example, the Court stated: \"Where a
reviewing court can find that the record developed at trial establishes
guilt beyond a reasonable doubt, the interest in fairness has been
satisfied and the judgment should be affirmed.\" [[478 US at
579](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1986134012&ReferencePosition=579)]{.underline}.

[[\[FN248\]](#Document1zzFN_B248)]{.underline}. As Justice Traynor
explains, the \"correct result\" test asks whether the jury reached the
correct conclusion notwithstanding the admission of tainted evidence.
Traynor, Riddle of Harmless Error at 18-22 (cited in note 227). See also
[[Edwards, 70 NYU L Rev at 1171 (cited in note
237)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1206&FindType=Y&ReferencePositionType=S&SerialNum=0106329615&ReferencePosition=1171)]{.underline}
(arguing that a judgment of whether error is harmless is actually a
judgment of how the appellate judge would have decided guilt). Henry
Monaghan has distinguished the two approaches as \"jury-centered\" and
\"judge-centered.\" Monaghan, 1989 § Ct Rev at 203 (cited in note 237).

[[\[FN249\]](#Document1zzFN_B249)]{.underline}. \"(I)t is the rare case
in which a constitutional violation will not be subject to
harmless-error analysis.\" [[Sullivan v Louisiana, 508 US 275, 282
(1993)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1993113763&ReferencePosition=282)]{.underline}
(Rehnquist concurring).

[[\[FN250\]](#Document1zzFN_B250)]{.underline}. See [[Edwards, 70 NYU L
Rev at 1180-81 (cited in note
237)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1206&FindType=Y&ReferencePositionType=S&SerialNum=0106329615&ReferencePosition=1180)]{.underline}
(citing numbers suggesting that applications of the harmless-error
doctrine increased significantly post-Chapman); Mitchell, [[82 Cal L Rev
at 1348 n 82 (cited in note
237)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1107&FindType=Y&ReferencePositionType=S&SerialNum=0104964711&ReferencePosition=1348)]{.underline}
(suggesting that guilt-focused approach review is most commonly used in
harmless-error determinations).

[[\[FN251\]](#Document1zzFN_B251)]{.underline}. [[508 US 275, 279
(1993)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1993113763&ReferencePosition=279)]{.underline}
(\"The inquiry . . . is not whether, in a trial that occurred without
the error, a guilty verdict would surely have been rendered, but whether
the guilty verdict actually rendered in this trial was surely
unattributable to error.\").

[[\[FN252\]](#Document1zzFN_B252)]{.underline}. See, for example, cases
in note 247. See also [[Neder v United States, 527 US 1, 17
(1999)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1999137124&ReferencePosition=17)]{.underline}
(concluding beyond a reasonable doubt that the jury verdict would have
been the same absent the error).

[[\[FN253\]](#Document1zzFN_B253)]{.underline}. See, for example,
[[Kamin, 88 Va L Rev at 72-73 (cited in note
237)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1359&FindType=Y&ReferencePositionType=S&SerialNum=0288274911&ReferencePosition=72)]{.underline}
(arguing that the guilt-focused harmless-error approach allows courts to
avoid answering the substantive questions of constitutional law around
which the errors are made); Linda E. Carter, The Sporting Approach to
Harmless Error in [[Criminal Cases: The Supreme Court\'s \"No Harm, No
Foul\" Debacle in Neder v. United States, 28 Am J Crim L 229, 239-45
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1434&FindType=Y&ReferencePositionType=S&SerialNum=0288921850&ReferencePosition=239)]{.underline}
(claiming that a guilt-focused harmless-error review unconstitutionally
limits the right to trial by jury); Edwards, [[70 NYU L Rev at 1192-94
(cited in note
237)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1206&FindType=Y&ReferencePositionType=S&SerialNum=0106329615&ReferencePosition=1192)]{.underline}
(arguing that review in a guilt-focused manner denies the right to trial
by jury); Mitchell, [[82 Cal L Rev at 1353-57 (cited in note
237)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1107&FindType=Y&ReferencePositionType=S&SerialNum=0104964711&ReferencePosition=1353)]{.underline}
(arguing that appellate review is a poor place to evaluate the record,
undermining the guilt-focused harmless-error review); Traynor, Riddle of
Harmless Error at 25-33 (cited in note 227) (raising multiple arguments
against the appellate review of harmless error with the guilt-focused
approach including difficulty with burdens, task confusion, and so on).
See also Charles S. Chapel, The [[Irony of Harmless Error, 51 Okla L Rev
501, 506
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1218&FindType=Y&ReferencePositionType=S&SerialNum=0110569557&ReferencePosition=506)]{.underline}
(describing the guilt-focused approach as inimical to constitutional
protections); Erwin Chemerinsky, No Harm, No Foul, [[16 Cal Law 27 (Jan
1996)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DocName=16CALLAW27&FindType=Y)]{.underline}
(criticizing the California Supreme Court\'s use of the guilt-focused
approach).

[[\[FN254\]](#Document1zzFN_B254)]{.underline}. See [[Bruton v United
States, 391 US 123, 137
(1968)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1968131192&ReferencePosition=137)]{.underline}
(excluding the statement of a non-testifying codefendant).

[[\[FN255\]](#Document1zzFN_B255)]{.underline}. See Part I.B.5.

[[\[FN256\]](#Document1zzFN_B256)]{.underline}. See Part I.B.2.

[[\[FN257\]](#Document1zzFN_B257)]{.underline}. This danger has been
pointed out by a sitting judge. See [[Edwards, 70 NYU L Rev at 1205
(cited in note
237)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1206&FindType=Y&ReferencePositionType=S&SerialNum=0106329615&ReferencePosition=1205)]{.underline}
(noting that once the judge has seen the evidence, he faces the risk of
being influenced by it).

[[\[FN258\]](#Document1zzFN_B258)]{.underline}. [[407 US 371
(1972)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&SerialNum=1972127164)]{.underline}.

[[\[FN259\]](#Document1zzFN_B259)]{.underline}. [[Id at
372.](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=1972127164)]{.underline}
In [[Massiah v United States, 377 US 201
(1964)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&SerialNum=1964124826)]{.underline},
the Court found a constitutional violation in surreptitiously
interrogating a defendant out of the presence of his lawyer. [[Id at
207.](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=1964124826)]{.underline}

[[\[FN260\]](#Document1zzFN_B260)]{.underline}. [[Milton, 407 US at
383](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1972127164&ReferencePosition=383)]{.underline}
(Stewart dissenting).

[[\[FN261\]](#Document1zzFN_B261)]{.underline}. Id. For a similar
example, see [[Schneble, 405 US at
434-36](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1972127091&ReferencePosition=434)]{.underline}
(Marshall dissenting) (criticizing the Court\'s decision to hold
harmless the admission of a statement of a nontestifying codefendant in
light of the defendant\'s confession despite evidence of police
coercion).

[[\[FN262\]](#Document1zzFN_B262)]{.underline}. For a comprehensive
review of people\'s limited ability to ignore information, see generally
Jonathan M. Golding and Colin M. MacLeod, eds, Intentional Forgetting:
Interdisciplinary Approaches (Lawrence Erlbaum 1998).

[[\[FN263\]](#Document1zzFN_B263)]{.underline}. For example, some
violations are bound to be classified as never warranting harmless-error
analysis, as is currently the case with respect to deprivation of the
right to counsel and the right to an impartial judge. See [[Chapman, 386
US at
43-44](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1967129471&ReferencePosition=43)]{.underline}
(Stewart concurring). Most others can be graded according to the
assessed severity of their impact on a jury decision.

[[\[FN264\]](#Document1zzFN_B264)]{.underline}. See note 275.

[[\[FN265\]](#Document1zzFN_B265)]{.underline}. Note, for example, the
selective citation of Roger Traynor\'s classic text, The Riddle of
Harmless Error (cited in note 227). His quote \"Reversal for error,
regardless of its effect on the judgment, encourages litigants to abuse
the judicial process and bestirs the public to ridicule it,\" id at 50,
has been cited exclusively in opinions that find the errors harmless.
See, for example, [[Neder, 527 US at
18;](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1999137124&ReferencePosition=18)]{.underline}
[[Johnson v United States, 520 US 461, 470
(1997)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1997107279&ReferencePosition=470)]{.underline};
[[Van Arsdall, 475 US at
681;](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1986117817&ReferencePosition=681)]{.underline}
[[Rose, 478 US at
577.](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1986134012&ReferencePosition=577)]{.underline}
On the other hand, the quotation \"In the long run there would be a
closer guard against error at the trial, if . . . courts were alert to
reverse, in case of doubt, for error that could have contaminated the
judgment,\" Traynor, Riddle of Harmless Error at 23, has been cited only
in a case in which the conviction was ordered reversed, [[O\'Neal v
McAninch, 513 US 432, 442
(1995)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1995051838&ReferencePosition=442)]{.underline}.

[[\[FN266\]](#Document1zzFN_B266)]{.underline}. [[477 US 168
(1986)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&SerialNum=1986132189)]{.underline}.

[[\[FN267\]](#Document1zzFN_B267)]{.underline}. [[Id at 180 n
12.](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=1986132189)]{.underline}

[[\[FN268\]](#Document1zzFN_B268)]{.underline}. Chief Justice Rehnquist
stated:

The evidentiary impact of an involuntary confession, and its effect upon
the composition of the record, is indistinguishable from that of a
confession obtained in violation of the Sixth Amendment\--of evidence
seized in violation of the Fourth Amendment\--or of a prosecutor\'s
improper comment on a defendant\'s silence at trial in violation of the
Fifth Amendment.

[[Fulminante, 499 US at
310.](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1991059720&ReferencePosition=310)]{.underline}
The Chief Justice went on to claim that relief cannot be based on a
belief that \"there is something more \'fundamental\' about involuntary
confessions.\" [[Id at
311.](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=1991059720)]{.underline}
This part of the opinion was joined by Justices O\'Connor, Kennedy,
Souter, and Scalia. Justice Kennedy though, cautioned against ignoring
the

indelible impact a full confession may have on the trier of fact. . . .
If the jury believes that a defendant has admitted the crime, it
doubtless will be tempted to rest its decision on that evidence alone,
without careful consideration of the other evidence in the case. Apart,
perhaps, from a videotape of the crime, one would have difficulty
finding evidence more damaging to a criminal defendant\'s plea of
innocence.

Id at 313 (Kennedy concurring).

Prompted by the Chief Justice\'s assertion, legal psychologist Saul
Kassin sought to test its empirical validity. Mock jurors were asked to
determine guilt in four criminal trials (murder, rape, assault, and
theft) in which the prosecutorial evidence included a confession, an
eyewitness identification, or testimony about the defendant\'s
character. It was found that evidence of confessions produced higher
conviction rates than the other forms of incriminating evidence,
suggesting unique impact of self-incriminating confessions. Saul M.
Kassin and Katherine Neumann, On the Power of Confession Evidence: An
Experimental Test of the Fundamental Difference Hypothesis, 21 L & Human
Behav 469 (1997). In a different experiment it was found that
confessions have an indelible effect on criminal verdicts rendered by
mock jurors. See Saul M. Kassin and Holly Sukel, Coerced Confessions and
the Jury: An Experimental Test of the \"Harmless Error\" Rule, 21 L &
Human Behav 27 (1997).

[[\[FN269\]](#Document1zzFN_B269)]{.underline}. Chief Justice Burger
explained that \"the integrity of the process carries less weight, for
it is the essence of the harmless-error doctrine that a judgment may
stand only when there is no \'reasonable possibility that the (practice)
complained of might have contributed to the conviction.\"\' [[United
States v Hasting, 461 US 499, 506
(1983)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1983124083&ReferencePosition=506)]{.underline}
(citation omitted).

[[\[FN270\]](#Document1zzFN_B270)]{.underline}. True, there is a danger
that when a court finds an error to be harmless based on the error-based
approach, the opinion might minimize the magnitude of the error. I
believe, however, that this is the lesser evil. First, given the type of
analysis, only the less egregious errors would be found to be harmless;
egregious errors would be declared harmful regardless of the evidence.
Second, in the long run, error-focused analysis will better fulfill the
expressive, educative, and deterrent functions and thus reduce the
incidence of error.

[[\[FN271\]](#Document1zzFN_B271)]{.underline}. Edwards, [[70 NYU L Rev
at 1194 (cited in note
237)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1206&FindType=Y&ReferencePositionType=S&SerialNum=0106329615&ReferencePosition=1194)]{.underline}.
Similarly, Judge Posner has explained that \"it takes a highly
disciplined judge to vote to reverse a conviction when he thinks the
defendant is guilty.\" Richard A. Posner, An [[Economic Approach to the
Law of Evidence, 51 Stan L Rev 1477, 1518
(1999)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1239&FindType=Y&ReferencePositionType=S&SerialNum=0111970543&ReferencePosition=1518)]{.underline}.

[[\[FN272\]](#Document1zzFN_B272)]{.underline}. See Jennifer S. Lerner,
Julie H. Goldberg, and Philip E. Tetlock, Sober Second Thought: The
Effects of Accountability, Anger, and Authoritarianism on Attributions
of Responsibility, 24 Personality & Soc Psych Bull 563 (1998)
(demonstrating the effects of anger on judgments of blame); Brian M.
Quigley and James T. Tedeschi, Mediating Effects of Blame Attributions
on Feelings of Anger, 22 Personality & Soc Psych Bull 1280, 1283-84
(1996) (same); Dacher Keltner, Phoebe C. Ellsworth, and Kari Edwards,
Beyond Simple Pessimism: Effects of Sadness and Anger on Social
Perception, 64 J Personality & Soc Psych 740, 743-45 (1993)
(demonstrating the effect of anger on attributing blame to personal
factors).

[[\[FN273\]](#Document1zzFN_B273)]{.underline}. See Julie H. Goldberg,
Jennifer S. Lerner, and Philip E. Tetlock, Rage and Reason: The
Psychology of the Intuitive Prosecutor, 29 Eur J Soc Psych 781 (1999)
(finding that people lower their thresholds for attributing harmful
intent and recommending harsh punishment when they know societal norms
have been violated and believe that the perpetrator escaped punishment).
Suggestions to this effect have also been made by Neil Vidmar,
Retribution and Revenge, in Joseph Sanders and V. Lee Hamilton, eds,
Handbook of Justice Research in Law 31, 56 (Kluwer 2001) (suggesting
some evidence for groups displacing punishment against non-anger
provokers).

[[\[FN274\]](#Document1zzFN_B274)]{.underline}. See Part I.B.6. The
experimentation focused mostly on positive affective states, but there
is good reason to believe that similar effects occur with negative
affect. Recall also that in one of the versions of the Quest study, a
malevolent depiction of the defendant triggered corresponding coherence
effects. See note 78 and accompanying text.

[[\[FN275\]](#Document1zzFN_B275)]{.underline}. See, for example,
[[Greer v Miller, 483 US 756, 766
(1987)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1987080055&ReferencePosition=766)]{.underline}
(holding that the prosecutor\'s questioning of respondent\'s post-arrest
silence followed immediately by a judicial admonition was harmless);
[[Rushen v Spain, 464 US 114, 120-21
(1983)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1983155722&ReferencePosition=120)]{.underline}
(finding that ex parte communication between the trial judge and a juror
was harmless).

[[\[FN276\]](#Document1zzFN_B276)]{.underline}. For a brief summary of
the application to appellate judicial reasoning, see text accompanying
note 117.

[[\[FN277\]](#Document1zzFN_B277)]{.underline}. See Jennifer K.
Robbennolt, John M. Darley, and Robert J. MacCoun, [[Symbolism and
Incommensurability in Civil Sanctioning: Decision Makers as Goal
Managers, 68 Brooklyn L Rev 1121, 1148-57
(2003)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3033&FindType=Y&ReferencePositionType=S&SerialNum=0294478780&ReferencePosition=1148)]{.underline}
(discussing legal decision making as constraint satisfaction).

[[\[FN278\]](#Document1zzFN_B278)]{.underline}. See Gary Blasi,
[[Advocacy against the Stereotype: Lessons from Cognitive Social
Psychology, 49 UCLA L Rev 1241, 1259-66
(2002)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3041&FindType=Y&ReferencePositionType=S&SerialNum=0289653351&ReferencePosition=1259)]{.underline}
(discussing mechanisms of constraint satisfaction in the context of
stereotypes).

[[\[FN279\]](#Document1zzFN_B279)]{.underline}. See Dan Kahan and Donald
Braman, Modeling Facts, Culture, and Cognition in the Gun Debate
(draft), online at http://www.cse.unsw.edu.au/°
lambert/guns/stimulating_simulations_ver_4.5.pdf (visited Apr 4, 2004).

[[\[FN280\]](#Document1zzFN_B280)]{.underline}. See Michael H. Shapiro,
Choosing Conceptual Systems in Constitutional Law, and Some Other
Locations (draft), online at
http://hal-law.usc.edu/faculty/workshops/documents/shapiro.pdf (visited
Apr 4, 2004).

[[\[FN281\]](#Document1zzFN_B281)]{.underline}. Jurisdictions are split
as to instances where the first decision was based on two independently
sufficient grounds (say, when a court finds against the plaintiff in a
negligence suit on the grounds that the defendant owed the plaintiff no
duty of care and that the harm was not established). Some jurisdictions
bar litigation on both issues. See, for example, [[Winters v Lavine, 574
F2d 46, 67 (2d Cir
1978)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&ReferencePositionType=S&SerialNum=1978103341&ReferencePosition=67)]{.underline};
[[In re Carozza, 167 BR 331, 338-40 (Bankr ED NY
1994)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=164&FindType=Y&ReferencePositionType=S&SerialNum=1994106700&ReferencePosition=338)]{.underline}.
Following the approach adopted by the Restatement, other jurisdictions
deny collateral estoppel effect for either one. See [[Restatement
(Second) of Judgments
](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101581&FindType=Y&SerialNum=0291285778)[§](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101581&FindType=Y&SerialNum=0291285778)[
27](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101581&FindType=Y&SerialNum=0291285778)]{.underline},
comment (i) (1982) (\"If a judgment of a court of first instance is
based on determinations of two issues, either of which standing
independently would be sufficient to support the result, the judgment is
not conclusive with respect to either issue standing alone.\");
[[Halpern v Schwartz, 426 F2d 102, 105-06 (2d Cir
1970)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&ReferencePositionType=S&SerialNum=1970102608&ReferencePosition=105)]{.underline}
(finding that a decision made on two grounds is not preclusive to
either).

When dealing with multiple grounds for a decision, there is a danger
that due to coherence effects, one strong issue can spill over and
influence the other issue, thus casting doubt as to whether the latter
was \"necessarily decided,\" as required by collateral estoppel
doctrine. See Charles Alan Wright, Arthur R. Miller, and Edward H.
Cooper, [[18 Federal Practice and Procedure
](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0102228&FindType=Y&SerialNum=0104501601)[§](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0102228&FindType=Y&SerialNum=0104501601)[
4421 at 536 (West
2d](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0102228&FindType=Y&SerialNum=0104501601)]{.underline}
ed 2002) (\"Issue preclusion attaches only to determinations that were
necessary to support the judgment entered in the first action.\").
Coherence-based reasoning thus supports the more cautious approach
adopted by the Restatement.

[[\[FN282\]](#Document1zzFN_B282)]{.underline}. Here too, the fear is
that due to coherence effects, one strong issue can spill over and
influence the other issue. Special verdicts might alleviate this problem
because the more isolated the judgments, the less likely they are to be
affected by coherence effects.

[[\[FN283\]](#Document1zzFN_B283)]{.underline}. In cases where the
evidence is overwhelming with respect to some elements of the crime, but
there is only scant evidence to establish a specific element, there is a
danger that, due to coherence effects, the fact-finder will find the
defendant guilty despite the absence of evidence on the particular
element. In such cases, correctly administered special verdicts could
serve to expose that evidentiary deficiency. It should be noted that
resorting to special verdicts is bound to have collateral effects,
including a possible restraint on the exercise of jury nullification.
For concerns over the effect of special verdicts on the jury\'s power to
nullify, see Lafave, Israel, and King, 5 Criminal Procedure § 24.10(a)
at 611-15 (cited in note 148); [[United States v Spock, 416 F2d 165, 181
(1st Cir
1969)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&ReferencePositionType=S&SerialNum=1969120268&ReferencePosition=181)]{.underline}
(suggesting that special instructions restrict the right of the jury to
ignore instructions and decide independently).

[[\[FN284\]](#Document1zzFN_B284)]{.underline}. See generally Eric A.
Posner, Standards, Rules, and Social Norms, 21 Harv J L & Pub Pol 101
(1997) (establishing a relationship between the economic analysis of
rules versus standards, the economic approach to social norms, and the
rule of law); Kathleen M. Sullivan, Foreword: The [[Justices of Rules
and Standards, 106 Harv L Rev 22
(1992)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3084&FindType=Y&SerialNum=0102734334)]{.underline}
(examining the rules/standards debate in the Supreme Court during the
1991 Term); Louis Kaplow, [[Rules versus Standards: An Economic
Analysis, 42 Duke L J 557
(1992)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1133&FindType=Y&SerialNum=0102729542)]{.underline}
(using economic analysis to determine circumstances in which rules or
standards would be preferable).

Coherence effects are mediated by the ambiguity of the variables: the
more ambiguous the issue, the greater the coherence shifts. See text
accompanying note 113. It follows that legal directives formulated as
standards will likely cause stronger shifts than similar precepts
promulgated as rules. The research, then, could provide lawmakers with
another consideration in choosing one form or the other.

[[\[FN285\]](#Document1zzFN_B285)]{.underline}. For a brief summary of
the findings in Dixon v Providential Insurance, see text accompanying
notes 92-93. These findings replicate and extend the important research
by George Loewenstein and his colleagues on self-serving bias. See
Babcock, Loewenstein, and Issacharoff, 22 L & Soc Inquiry at 913 (cited
in note 104); George Loewenstein, et al, Self-Serving Assessments of
Fairness and Pretrial Bargaining, 22 J Legal Stud 135 (1993).

[[\[FN286\]](#Document1zzFN_B286)]{.underline}. For a summary of the
findings of the horse race studies, see text accompanying note 91.

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