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A Skeptical Approach to Guilt and Innocence in the Judicial Realm

A Skeptical Approach to Guilt and Innocence in the Judicial Realm


The criminal justice system, in theory, must be impartial. The only admissible considerations within the system, in theory, are intended to derive from a dispassionate weighing of facts in evidence.

This dispassionate, logical approach—deriving in many ways from Enlightenment philosophy—is frequently taken for granted, at least implicitly. Yet the realm of criminal justice is fraught with anomalies, many of which have their roots in human psychology rather than in the abstractions of legal theory.

Major cases attest to this fact. The Scott Peterson criminal trial of 2004, in which Peterson’s pregnant wife was murdered, resulted in Peterson’s conviction for the crime despite there being no direct physical evidentiary connection from the crime to Peterson. The Wesson multiple murder of Marcus Wesson’s own children in Central California, also in 2004, did provide direct evidentiary connections, but some specific connections were incompletely or inaccurately conveyed to the jury.

The juries convicted.

Such anomalies pose some difficulty because the proceedings in criminal investigations and trials are supposed to be based, quite literally, on skeptical inquiry. In line with the most basic principles governing the activities of the Committee for Skeptical Inquiry, the judicial context is supposed to be based only on logic and evidence. And yet both Wesson and Peterson were convicted, apparently with minimal consideration of these specific facts. This is certainly not to second-guess the juries in these particular cases and absolutely not to imply that Wesson and Peterson were wrongly convicted. But from the standpoint of pure scientific skepticism, these convictions serve to demonstrate that criminal justice proceedings are not necessarily based purely on hard logic and evidence or on the requisite and expected skeptical inquiry. Implicitly, of course, we all understand this, but at a more direct, explicit level, other factors are clearly involved, and we need to know what they are.

Questions of Guilt and Innocence

It is especially important to understand these factors in cases in which guilt and innocence become confused in the judicial process. This happens far more frequently than one might expect. Clearly guilty individuals may be found not guilty due to “mitigating” factors, which in some cases are clearly legitimate but in others may bear no genuine relationship to the given crime.

The opposite effect is also observed; frequently, the victims of crimes are seen as at least partially responsible for their victimization (“she led him on,” “he shouldn’t have been there at that time of night,” and so on). It’s an odd fact that victims are frequently blamed, at least in part, for the crimes committed against them (e.g., Karmen 2004). Yet given that the victim broke no laws in such cases and the perpetrator did, we cannot search for the source of these ideas in law or logic. So, what are the sources of these frequently egregious assertions?

It has been suggested that “blaming the victim” is an extension of the “just-world hypothesis” (e.g., Lerner and Miller 1978; Lerner 1980), the concept that we essentially get what we deserve, which would imply victim guilt. As Lerner has stated, this concept is functionally and fundamentally delusional, the antithesis of the result of a proper skeptical inquiry. Yet it frequently takes hold, to the significant disadvantage of crime victims (Martin 2001) and is especially prevalent in domestic abuse situations (e.g., Danis 2003; Garimella et al. 2000).

Stephen Goldinger and colleagues (2003) have also shown the importance of imagination—by definition, irrelevant to the facts in evidence—in judicial consideration of domestic and/or sexual abuse. The importance of imagination was also demonstrated in a taxonomic study of cognitive effects in the consideration of violent crime (Sharps et al. 2009).  Second only in frequency to simple errors of the appearance of the suspect were errors of the imagination; respondents simply and unknowingly made up “facts” about what they had seen that had no actual basis in physical reality. The source of these errors lay in the creative powers of the respondents’ own minds.

Other important studies (e.g., Pugh 1983; George and Martinez 2002; Rude 1999) have demonstrated the importance of victims’ previous actions and backgrounds to the outcomes of cases in which victim history was completely irrelevant to the attribution of blame.

Just-world hypothesis, imagination, and victim backgrounds: From an empirical standpoint, perhaps the most important basis of skeptical inquiry, what specific factors might result in the inadvertent incorporation of such nebulous influences into judicial proceedings?

Cognitive science (e.g., Chi et al. 1982) has for many years converged on the concept that successful, relatively sophisticated consideration of any given situation involves accurate classification of the elements and processes involved. In questions of guilt and innocence, we can classify potentially extraneous influences in two broad categories: those pertaining to the context of the consideration and those pertaining to personal individual differences in those engaged in it. There are many such possible influences within each category, of course, but which are most likely here? What psychological influences have been suggested, by prior empirical research, to be of potential importance to the decidedly non-skeptical hijacking of considerations of logic and evidence by extraneous psychological forces?

A Contextual Influence: Violence

Both the Peterson and Wesson cases were truly horrifying, presenting terrible scenarios of the violent death of children, born and unborn, to the jurors. It has been demonstrated (e.g., Sharps, Herrera, and Price-Sharps 2013) that the relative level of horror presented by a given case is highly influential in the consideration of that case. In that research, respondents were more likely to return a guilty verdict for a given suspect based solely on the violence of the crime in question; suspects in more violent cases were more likely to be judged as guilty, even without any additional evidence indicating guilt. It was also shown that respondents were more likely to overlook flaws and gaps in evidence in more violent cases. There is a clear link between the cognitive consideration of facts in evidence and the affective state that those facts may produce in a given potential juror: higher levels of violence result in more “gestalt,” holistic consideration of the given case, involving less “feature-intensive” consideration that would anchor a respondent’s cognitive processing more firmly to the facts in evidence and less to the more nebulous constructs potentiated by the relative violence of the situation. In purely cognitive terms, then, we would see a potential connection to questions of guilt and innocence here: blaming the victim would be less likely under greater conditions of violence, in which the victim might be seen as receiving more punishment than he or she “deserved” under the just-world concept (e.g., Lerner 1980).

 

A Personal Influence: Dissociation

Dissociation, as we’ve discussed in previous articles we’ve been privileged to present in Skeptical Inquirer, is emphatically not confined to pathological conditions such as dissociative identity disorder. Dissociation, in its subclinical form, may occur in anyone in the absence of any identifiable psychopathology (see Sharps 2022).

Why would we expect dissociation to influence considerations of guilt and innocence? Even subclinical dissociation produces important effects on human cognition. Dissociated people may feel “strange” about themselves and their environment and have anomalous perceptions of their own experiences and of the passage of time. The world of the dissociated may be subjectively diffuse and somewhat unreal or perhaps surreal (e.g., Cardena 1997; DePrince and Freyd 1999), and dissociation can reduce the critical feature-intensive analysis on which a properly skeptical analysis of the facts of guilt or innocence would be predicated in any given case.

Dissociation in perfectly “normal” people can move beliefs and even perceptions beyond the hard constraints of logic and evidence. Dissociation is directly associated with unsupported paranormal beliefs (in such things as UFOs, Bigfoot, and ghosts; e.g., Sharps et al. 2010; see also Sharps 2022). Dissociation was strongly associated with beliefs in the 2012 “Mayan” end of the world, in which absolutely nothing happened (Sharps, Liao, and Herrera 2013, 2014); in another study, those with higher tendencies toward dissociation tended not only to believe in paranormal entities but actually see them, interpreting objects from everyday prosaic reality as paranormal in nature. For the dissociated, a teenager in a Halloween ape costume became Bigfoot, and the landing lights of a helicopter in the dark became an alien UFO (Sharps 2012). People experiencing dissociation were also more likely to see objects and structures that did not exist on a slightly blurred photo of Earth’s Moon (Sharps et al. 2019). Dissociation is clearly involved in the blurring of reality with relatively vague, gestalt, nonspecific concepts deriving from the relatively uncritical inner life of the individuals involved; thus, we would expect dissociative tendencies in the individual, as well as violence in the context of a given crime, to influence even fundamental issues of guilt and innocence in any given case.

Research Framework

We addressed these concepts in an experimental context. One hundred and fifty adult respondents each read one of three realistic, field-valid crime scenarios, developed with reference to actual criminal cases and assistance from expert veterans of law enforcement. The scenarios were identical, except in the following contextual detail: the first described a simple theft of a wallet; the second described the theft of the wallet but with serious physical assault also involved; and the third described the theft and the assault as resulting in murder.  Thus, each respondent was provided with one of three levels of violence to consider.

The victim and perpetrator in each scenario were described as male, with no data on race provided. Respondents were asked to rate, on 1–7 Likert scales, the degree to which the perpetrator and the victim of the given crime bore responsibility for it. They also completed the Dissociative Experiences Scale-II (DES-II), a standard measure of dissociative tendencies (Carlson and Putnam 1986).

 

Findings

Violence

Scenario violence didn’t influence the attribution of guilt to the perpetrator. However, the effect of violence was significant on attribution of responsibility to the victim; as suggested above, the victim was seen to be significantly more responsible for the theft of his own property (a wallet) if he was not assaulted or murdered during the theft (F [1,147] = 5.78, p < .01). However, there was no difference in the lower level of responsibility, or blame, attributed to the victim of violence, whether he was assaulted or murdered. In their consideration of the crime, respondents did not differentiate between assault and murder—yet this bizarre finding is consistent with previous studies (Sharps, Herrera, and Price-Sharps 2013; Liao et al. 2018) in which we observed high levels of confusion, on the part of respondents, in the evaluation of different levels and types of violence. In the consideration of violence, research indicates that most modern adults tend toward a gestalt, relatively amorphous style of cognition, a mode of thinking that may preclude the feature-intensive analysis on which a reasoned analysis of the nature and level of violence, in any given crime, would logically have to be based.

Dissociation

As suggested, dissociative tendencies were associated with the evaluation of guilt or innocence, and this relationship varied under different conditions of violence. Dissociative tendencies, as measured by the DES-II, did not predict greater levels of guilt attribution to the victim if he was simply robbed or even assaulted. However, dissociation was significantly associated with greater attribution of victim responsibility if he was murdered, (R2 = .146, F [2, 40] = 3.41, p <. 05, β= .214). Dissociation interacted with the level of violence to influence judgment only at the highest level of violence examined, homicide; only persons exhibiting relatively high levels of dissociative tendencies saw the victim as relatively responsible, blamable, if he was murdered. In the presence of theft or even grievous bodily harm, dissociation did not play a role in assigning blame to the victim; you had to be dissociated to decide that the victim was guilty of his own murder.

Dissociation was also associated with lower levels of guilt attributed to the perpetrator of the crime, without regard to violence (R2 = .045, F [1, 133] = 6.23, p < .05, β= -.213). Those who were more dissociated tended to see the perpetrator as less guilty of the crime he committed, a result that may, with further research, help to explain many cases in which guilty parties were exonerated in direct opposition to facts in evidence.

Conclusions and Implications

What are the cognitive dynamics by which jurors convict, or release, suspects who may or may not have committed specific crimes? The present findings demonstrate that a contextual variable, the level of violence involved in the given crime, interacts with a personal variable, the relative subclinical dissociation of the individual potential juror, to influence a legal question as foundational as the judicial assignation of guilt, or blame, to the victim and to the perpetrator of a given crime.

The findings of this study, as such, may be useful in clarifying the cognitive dynamics of such fundamental judicial considerations as guilt or innocence, including the perennially pernicious “blame the victim” effect; it is hoped that this research will have this effect. Other cognitive dynamics, of course, await further research; this should prove true both of contextual variables and of personal, individual-difference characteristics in the determination of cognitive outcomes in the criminal justice realm. It is hoped that the present research will also prove heuristic for future studies along these lines.

However, there is another major point to this research. This research highlights the critical importance of a truly skeptical approach to inquiry into the dynamics of the criminal justice system, especially in a world of increasingly complex legal and criminal realities. In the world of criminal justice, a realm of grave importance both to the welfare of individuals and to that of the society at large, skeptical inquiry has not yet approached its potential.

For example, eyewitness memory is known, from much empirical research, to be highly malleable (e.g., Bartlett 1932; Sharps 2022) and even to be influenced by the language used in the courtroom (e.g., Loftus 1979). Yet in most legal venues, sworn eyewitness testimony is still treated as veridical and adamantine.

Judges still order juries to disregard concepts recently planted by courtroom proceedings in their own memories, even though the cognitive realities of memory processes may effectively render this impossible (e.g., Sharps 2022), and that even elements of defendant faces may produce profound affective responses in jurors, of which those jurors are themselves completely unaware (Sharps and Herrera 2019).

We need to take a properly skeptical, empirical approach to the criminal justice system. We need to provide hard, skeptically driven data regarding the very ancient ideas, still implicitly in force, of a divinely sanctioned, essentially omniscient oath-driven system in which, in the modern world, many people take divine oaths extremely lightly. We need to examine the relevant questions from a classificatory perspective: What are the prospective psychological influences operating in any given functional sphere of operation?

Then, we need to address the scientific literature: What influences have been demonstrated to be important in functionally related realms of inquiry? Finally, we need to address each of these influences in solidly designed experimental frameworks, within which, and only within which, empirical validation of relevant theory is possible. Only then can a modern secular justice system, in continuous conflict with its ancient nonsecular antecedents, make progress in the modern realm of criminal justice. A system of analysis based in skeptical inquiry, quite literally, is essential to any modern system of justice.

The philosopher Socrates, essentially convicted for the crime of skeptical inquiry in ancient Greece, was convicted by a bare majority of his Athenian jurors. Ancient and modern sources differ slightly on the numbers involved, but after he was convicted, approximately eighty of the jurors who had previously voted for his innocence voted for the death penalty. Approximately eighty jurors, with the same brains as modern jurors, voted to kill the man for the crime of which they’d previously voted him innocent.

A hard skeptical approach to the legal and psychological realities of the criminal justice system is not only essential; it’s more than 2,400 years overdue.

References

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———. 2022. Processing under Pressure: Stress, Memory, and Decision-Making in Law Enforcement (3rd ed.). Park City, UT: Blue 360 Media.

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———. 2014. Remembrance of apocalypse past.  Skeptical Inquirer 38(6): 54–58.

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Matthew J. Sharps, Kyle Villarama, Frankie Rios, and Jana L. Price-Sharps

Matthew J. Sharps is professor of psychology at the California State University, Fresno. He is the author of numerous papers and publications in cognitive and forensic cognitive science, including the 2022 book Processing under Pressure: Stress, Memory, and Decision-Making in Law Enforcement (3rd ed.). He has consulted on eyewitness issues in numerous criminal cases and has published several articles in SI on the implications of eyewitness principles for erroneous observations and interpretations.

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Kyle Villarama, PhD, and Frankie Rios are researchers at the Sierra Education and Research Institute, Fresno, California.

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Jana L. Price-Sharps, PhD, is a licensed psychologist who specializes in trauma treatment with forensic and first-responder populations. She is a fulltime faculty member at Walden University in the Forensic Psychology PhD program and a parttime faculty member in the Department of Psychology at the California State University, Fresno. She conducts research on interactive factors in forensic, clinical, and cognitive psychology.



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