EXPERTS ARE NOT IMMUNE FROM COGNITIVE BIASES

by Jules Epstein

It may be silly but bears repeating – experts are people too, subject to a variety of influences that may distort their thinking, approach and conclusions without realizing this is occurring. This understanding of expert non-neutrality is nothing new – the 2009 report STRENGTHENING FORENSIC SCIENCE – A PATH FORWARD emphasized this.

Some initial and striking research has uncovered the effects of some biases in forensic science procedures, but much more must be done to understand the sources of bias and to develop countermeasures…The traps created by such biases can be very subtle, and typically one is not aware that his or her judgment is being affected…Decisions regarding what analyses need to be performed and in what order also can be influenced by bias and ultimately have the potential to skew results.

Id., 184-185.  And the audience for expert testimony – often, the courts – is sometime oblivious to this as well.  This arises from the perception of neutrality and objectivity that understandably comes along with the entry of science into the courtroom.

A new article offers a comprehensive paradigm for grasping and potentially responding to expert bias. “Cognitive and Human Factors in Expert Decision Making: Six Fallacies and the Eight Sources of Bias” (Anal. Chem. 2020, 92, 7998−8004, available at  https://pubs.acs.org/doi/10.1021/acs.analchem.0c00704 ) is among the latest from researcher and cognitive psychologist Dr. Itiel Dror.

Dror begins with his list of prevalent fallacies, ones he has identified in years of studying and training experts and the consumers of expert knowledge – judges and lawyers:

  • Bias is a problem only with “corrupt and unscrupulous individuals” and thus is a matter of personal integrity.
  • Bias occurs only among the “bad apples” of the community, people who have yet or do not care to learn “how to do their job properly.”
  • There is no bias as experts are immune as long as they perform competently and with integrity.
  • When forensic analysis is based on the use of technology, instrumentation or other non-human machinery there can be no bias.
  • The “blind spot” phenomenon of seeing other experts as being biased but not oneself.
  • What Dror calls “Illusion of Control: ‘I am aware that bias impacts me, and therefore, I can control and counter its affect. I can overcome bias by mere willpower.’”

The list is not just anecdotal; for each, Dror identifies confirming sources.

Why is understanding of the fallacies essential?  Without having them as a starting point, experts will be blinded to their own limitations, and those who retain, rely on or challenge experts will be unable to critically assess their work.

Dror offers more.  Having identified the fallacies that impede fair assessment of whether a particular expert’s approach or conclusion was hindered by biases, he then identifies eight forms of bias to test for.  This is his illustration.

The article walks the reader through how each level has a risk of biasing the examination and/or the resulting decision.

  • The case specific circumstances, such as the data/material being examined, the reference material [e.g. a “target suspect” whose features can affect what is being looked for in a crime scene sample or a latent print], and contextual domain irrelevant information.
  • Environment, culture and  experience include base rate [e.g. what the ‘normal’ conclusion is when finding certain features], organizational factors such as “allegiance effect” and “myside bias,’ and education and training that may predispose an examiner to look at evidence from only one or limited perspectives.
  • Human nature is the last confounding source of bias, ranging from the purely individualistic motivation and belief system to the general aspects of decision-making such as top-down thinking.

To keep these from merely being labels, Dror provides illustrations.  How might reference materials bias?  “[T]his source of bias is not limited to circumstances that have a “target” suspect per se, but can also arise from pre-existing templates and patterns, such as in the interpretation of blood pattern analysis or a crime scene. It can even impact what color is observed.”

Contextual information can have its own ramifications.

In toxicology, for example, contextual information can bias testing strategies. Consider, for instance, when a post-mortem case is provided with contextual informant, such as “drug overdose” or/and that “the deceased was a known to have a history of heroin use.” Such information can impact the established testing strategies, such as to go straight to the confirmation and quantification of a limited range of opiate-type drugs (morphine, codeine, 6-monoacetylmorphine, and other heroin markers), without running the other standard testing, such as an immunoassay or looking for other opioids that may have been present (e.g., fentanyl). Hence, the contextual information caused a confirmation bias approach and deviation from the standard testing and screening protocols.

So, too, can “base rate,” illustrated by an example from forensic pathology.  If there is a hanging that results in cerebral hypoxia, that correlates primarily with suicide; and if there is strangulation resulting in the same condition it correlate highly with homicide.  But occasionally there can be homicides by hanging; and failure to consider this can skew not only the ultimate determination but “other stages of the analysis, even the sampling and data collection, as well as detection of relevant marks, items, or signals, or even verification.”

Are there solutions or at least mitigating steps to take?  Some are clear – preventing exposure to domain irrelevant material, using “linear sequential unmasking”  – and others are ore difficult, as they involve overcoming defensiveness on the part of examiners that bias is not a problem for them.  But without a fundamental understanding of bias and its sources and a corresponding system for checking and correcting for bias, the risk of error in core forensic analysis will persist.

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A Couples-Only Dance

By Grant Rost

We have all seen it.  We have all seen the lawyer or the student so involved with her notes or his script that they seem to have uncoupled from the courtroom itself.  I take that moment to study the faces of the jury.  What are they doing while the scribe at the podium has a private waltz with his scribblings?  In most instances, I see that the jury has also uncoupled.  Cognitive science has shown that the advocate here has not simply made a misstep with her dancing partner, but has missed the opportunity for the most amazing kind of dance: a cognitive coupling.[1]  A brain waltz taking place between two or more people.

The brain science behind “cognitive coupling” has been around for more than a decade, but the phenomenon might be new to you and is almost certain to be new to your students or the other trial warriors you work with.  Cognitive coupling is an electrical waltz between the brains of a speaker and listener—a fascinating Rogers and Astaire unison of brain activity shared when two people are truly involved in that phenomenon we so dismissively call “communication.”  Let us break down the science a little more from just one important study on the subject.

To study brain activity in both a speaker and listener, researchers recorded a subject telling a story that was personal to her and told without direction.[2]  While her voice was recorded, researchers also recorded her brain activity by fMRI.  This recorded story was then played for other subjects while their brains were being scanned by fMRI for processing activity.  As a control, they had someone tell a story in Russian and played that story for English speakers who knew no Russian at all.  I have spoiled the ending already, haven’t I?  The brain activity seen in the speaker, after a short processing delay, was mirrored in the listener.  When non-Russian speakers listened to the Russian storyteller, there was none of this mirrored coupling at all.  To tie up the loose ends that could account for the mirrored brain activity, the researchers had enough data to conclude that the speaker’s brain activity was not the result of hearing herself speak her own story.[3]

It gets better though.  The easier the communication was to understand, the delay between the speaker and listener’s mirrored brain activity shortened toward synchronicity.  Even better: When the listener could predict where the speaker was going, the listener’s brain activity would “predict” the brain activity of the speaker.  The speaker’s brain would then mirror the activity of the listener’s “prediction.”  Researchers next compared the brain activities of the various listeners in the study against one another and found that those, too, synced up in a marvelous dance.[4]

So, why should this matter to trial lawyers or trial advocacy professors and students?  It is the difference, as I see it, between communicating and communion.  I can communicate and yet completely fail at communion—the latter being quite simply defined as “sharing.”  In fact, the researchers concluded that the stronger the cognitive coupling activity between speaker and listener, “the better the understanding” of the story being told.[5]  How beautiful!  I often share the science of cognitive coupling with my students to refocus their goals in trial.  It cannot all be about the words on the paper.  It cannot be all about conveying the content we are certain will make or break our proof.  Our goal should be a connection at the electrical level, where jury and advocate swing, and mirror, and move, and predict, and dance the dance—all while opposing counsel sits and broods on the bleachers at the side of the gymnasium, wondering how he might cut in.

[1] Also referred to as neural coupling or brain synchronization, among other similar names.

[2] Greg J. Stephens et al., Speaker-Listener Neural Coupling Underlies Successful Communication, 107 Proceedings Of The National Academy Of Sciences Of The United States Of America, no. 32, 2010, at 14425, https://doi.org/10.1073/pnas.1008662107

[3] Id. at 14427

[4] Id. at 14426

[5] Id. at 14427

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