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Paradoxes of Proof and Punishment: Psychological Pitfalls in Judicial Decision Making

NCJ Number
Legal and Criminological Psychology Volume: 12 Issue: Part 2 Dated: September 2007 Pages: 189-205
Jan W. de Keijser; Peter J. van Koppen
Date Published
September 2007
17 pages
This study examined two psychological mechanisms (conviction paradox and compensatory punishment) that might inadvertently affect judges’ decision on guilt and on punishment using an experiment with members of the Dutch criminal court judiciary.
Empirical support was not found for the conviction paradox, nor for compensatory punishment. Further elaboration and explanation are encouraged because these results are considered surprising since both mechanisms are derived from firmly established psychological phenomena operating in many other fields of decisionmaking. The experiment raises doubts on the existence of the conviction paradox and of the compensatory punishment among Dutch judges, at least to the extent that these are not common mechanisms. Depending on the national justice system (and often also on the type of adjudicated case), decisions on the matter of guilt in criminal cases are taken either by judges or by juries. Studies demonstrate that a myriad of personality variables and social and psychological factors influence decisions on guilt. While the areas of research on decisions of guilt and on sentencing have developed largely in isolation from one another, their focus on unwarranted extra-legal consideration in criminal justice decisionmaking inextricably connects them. The weighing of evidence, on the one hand, and the magnitude of the sentence, on the other hand, ultimately cannot be but subjectively decided by the fact finder, be it jury or judge. In an experiment with Dutch judges and justices who serve in criminal courts, this study evaluated two psychological mechanisms that might inadvertently affect judges decisions on guilt and on punishment. The first, the conviction paradox, asserts that, faced with very serious offenses, a judge’s standard of proof will be lower than for less serious, but otherwise comparable offenses. The second, compensatory punishment, asserts that in cases with relatively weak evidence, judges who nevertheless render a guilty verdict will be inclined to compensate their initial doubt on the matter of guilt by meting out a less severe sentence. Tables, references