I spent last weekend with my sister’s family in Columbus. We left for church on Sunday before the sun had risen. However, in the car, my preschool-age nephew saw a ray of light and proclaimed, “See, the sun is trying really hard to come up!”
My nephew’s understanding of the sun’s effort to rise is an understandable mental bias based upon his limited knowledge and life experience. However, adults also sometimes unconsciously use certain mental shortcuts, also known as cognitive biases or logical fallacies, to reach 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 might lead to inaccurate conclusions.
There are two primary mental shortcuts against which the legal system is particularly vigilant.
First, the system tries to avoid moral equivalence. Moral equivalence is treating all inconsistencies with civil or moral law as being the same and necessarily correlative with each other.
For example, a man may cheat on his income taxes. Later, that man may be accused of assaulting his neighbor. The legal system precludes the prosecutor from arguing that, “This man cheats on his taxes, which is dishonest, and dishonest people are the type to assault their neighbors.”
However, if that man himself testifies that he did not assault his neighbor, the legal system might allow the prosecutor to argue that the man’s statement is not credible, because the man has been proven to be dishonest.
Thus, the concern with the argument (the man is dishonest) that could cause jurors’ minds to inappropriately “shortcut” to an unrelated conclusion (the man assaulted his neighbor) is governed by the rules of evidence, which weighs the context of the evidence and allows the judge to use facts and arguments for proper purposes while precluding jurors from reaching conclusions based upon moral equivalence.
Second, the law tries to avoid red herrings. Red herrings are discussions, arguments or facts that are not directly focused on the exact issue but instead create distractions that try to shortcut to a conclusion.
The legal system is focused on preventing red herrings, even though red herrings may have an important role at other times in other contexts. For instance, in criminal matters, guilt and sentencing are decided separately. In places where guilt and sentencing appear to be decided together, jury instructions direct the jury to separate the two important steps.
As an example, if guilt and sentencing were decided together, a jury could conclude that the defendant is about 80% likely to have committed the crime. Then, with that information, the jury could use the red herring of possible sentencing ranges to simply sentence the defendant to 80% of the maximum possible sentence. In this context, sentencing could be a red herring. In America, a person must be found guilty separately, before sentencing.
Our legal system’s complexity provides the necessary protections from making mental shortcuts and relying on mental or cognitive biases that may cause inaccurate and unfair conclusions.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at [email protected] or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.