I spent last weekend with my sister’s family in Columbus. We went to church on Sunday before sunrise. However, in the car, my preschooler nephew saw a ray of light and announced, “Look, the sun is trying really hard to come up!”
My nephew’s understanding of the sun’s efforts to rise is an understandable mental bias based on his limited knowledge and life experience. However, adults also sometimes unconsciously use certain mental shortcuts, also known as cognitive biases or logical fallacies, to draw conclusions that may not be logically accurate.
Our legal system uses a complex set of procedures and rules (rules of evidence, rules of civil procedure, etc.) to try to eliminate those mental biases that can lead to inaccurate conclusions.
There are two basic mental shortcuts that the legal system is particularly vigilant against.
First, the system tries to avoid moral equivalence. Moral equivalence regards all inconsistencies in civil or moral law as equal and necessarily relative to each other.
For example, a man can cheat on income tax. Later, this man may be accused of assaulting a neighbor. The legal system does not allow a prosecutor to claim that “this person is cheating on their taxes, which is dishonest, and dishonest people are the type of people who attack their neighbors.”
However, if the person himself testifies that he did not attack his neighbor, the legal system may allow the prosecutor to argue that the person’s statement is not credible because it has been proven that the person was dishonest.
Thus, the concern about an argument (the man is dishonest) that might lead the jury to improperly “shortcut” to an unrelated conclusion (the man assaulted his neighbor) is governed by evidentiary rules that weigh the context of the evidence and allow the judge to use facts and arguments in their proper context. purposes, preventing juries from making inferences based on moral equivalence.
Second, the law tries to avoid a red herring. Herrings are discussions, arguments, or facts that do not focus directly on a specific issue, but instead create distractions that attempt to shorten the path to a conclusion.
The legal system is focused on preventing herrings, even though they may play an important role at other times and in other circumstances. For example, in criminal cases guilt and sentence are decided separately. In places where guilt and sentencing are decided together, the jury instructions mandate that the two important steps be separated.
As an example, if guilt and sentence were decided together, the jury could conclude that the defendant had about an 80% probability of committing the crime. Then, armed with this information, the jury could use a range of possible sentencing ranges to simply sentence the defendant to 80% of the maximum possible sentence. Sentencing could be a red herring in this context. In America, a person must be found guilty separately before sentencing.
The complexity of our legal system provides necessary safeguards against mental shortcuts and reliance on mental or cognitive biases that can lead to inaccurate and unfair conclusions.
Lee R. Schroeder is a licensed Ohio attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture in Northwest Ohio. It can be reached at the address [email protected] or at 419-659-2058. This article is not intended as legal advice, and you should seek specific advice from a licensed attorney of your choice based on the specific facts and circumstances you face.