The Implications of Rational Choice Theory on Jury and Criminal Behavior

The Implications of Rational Choice Theory on Jury and Criminal Behavior

By Sara Tatke

I. INTRODUCTION

The Jury: an institution developed to maximize the equality of a trial by giving power to the hands of ordinary people. While many argue that it is a necessity, many posit that juries are inherently unjust, created to disregard minorities and further the superiority complexes of many within the United States. Both sides of the argument have their own strengths and weaknesses, as shown by the research conducted by numerous psychologists exploring the factors that may influence a jury’s decision. One psychological theory, the Rational Choice Theory, postulates that people will act rationally in character, and when making decisions, they will determine the costs and benefits of each action. This theory can be applied in the context of juries in that it suggests there are several factors that influence how juries will make decisions they perceive as rational. Additionally, behavioral psychologists have also determined several ambiguity attitudes which can predict the social behaviors of individuals. Specifically, this paper will explore ambiguity-aversion and ambiguity-seeking behaviors. Both these behavioral attitudes provide a framework by which people make decisions which can be further applied to study how juries make decisions and how individuals may choose to commit crimes. Ambiguity-aversion states that “when there is uncertainty about the probabilities of various outcomes, people may assume that bad outcomes are more likely than they actually are” (Frank). Ambiguity-seeking behavior states just the opposite: people tend to be more optimistic about uncertain outcomes. In this way, juries are impacted by their own ambiguity attitudes, inherent styles of deliberation, and several external factors that ultimately determine how they view the evidence presented to them. Additionally, criminals will act in accordance with their individual ambiguity attitudes as well, and analyzing these attitudes can provide new models of deterrence that states can implement in order to reduce crime rates.

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II.

BIASES IN JURY AND CRIMINAL BEHAVIORA. Rational Choice Theory and Its Broad Implications

Rational Choice Theory (RCT) can be applied to both jury and criminal behaviors: there are three broad types that can be considered, each discussing the same idea with slightly different structural changes. In the jury context, RCT postulates that juries will consider the costs and benefits of each decision they can make. Similarly, in a criminal context, RCT states that people will choose to “commit crimes in a rational manner” (Frank).

The first type, Narrow RCT, “holds that human agents, when making decisions about their actions, are selfishly oriented, motivated solely by monetary or material costs and benefits, have possessed of all the relevant information in a non-biased way, and choose the best course of action in relation to their goals” (Rutar 301). Narrow RCT is typically the most criticized due to not taking into account the fact that people are also concerned with less tangible goals aside from simply tangible, self-interested goals.

On the other side of the spectrum is Wide RCT, which takes a broader approach to human behavior in comparison to Narrow RCT. Wide RCT states that actions can go both ways: self-interestedly and other-regarding. Self-interested behavior can come in many forms, such as caring for monetary or material goods, social status, or other sentiments. People can also act as ‘maximizers’ who “search for optimal course[s] of action” or as ‘satisficers’ who “pick actions they think will serve as not perfect but good enough means for achieving their ends” (Rutar 301). The main idea here is that subjects will all have different behavioral tendencies and intentions, the only constant being that they will all independently choose how to rationally pursue their respective situations. The issue with Wide RCT, however, is that its generality doesn’t offer

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much guidance in terms of justifying human behavior as answers can be looked at from both perspectives.

To mitigate this issue, Amending RCT has been proposed, which combines aspects of the Narrow and Wide RCT in order to account for their respective faults. Amending RCT suggests “to (i) assume self-interest, at least as an orienting starting point, and to further posit more specifically (ii) that people aim to achieve two more or less universal self-interested goals: securing or increasing their material well being and securing or increasing social recognition” (Rutar 302). As a result of these assumptions, amending Rational Choice Theory encompasses the largest portion of the population’s behavior through its use of self-interest as a starting point in addition to accounting for some rational goals pursued without self-interest.

Thus, this form of Rational Choice Theory can be applied to the majority and generally can be used in regard to predicting decision-making. It holds that there are several factors that ultimately determine how humans choose to make decisions and therefore implies that juries and criminals can be examined more closely in order to allow for fairer trials and ways to deter crime.

B. Jury Decision Making and Its Influencing Factors

The hope is that by closely examining external factors that may affect how jurors make decisions, conclusions can be drawn to make way for advancements in equity of the judicial system. Jury decision-making is remarkable in that it places such a large amount of trust and power in the hands of ordinary citizens. However, with this power comes the question of whether the jury has arrived at the right verdict. To psychologists, this question has relevance in regard to a variety of concepts, including persuasion, group behavior, and memory. Psychologists also take particular interest in factors that may influence juries since, as stated in Rational Choice Theory,

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individuals will determine what decisions to make based on which choice benefits themselves the most. Taking that into account, the most important factors of jury performance can be assessed in three different categories.

The first category is comprehension, which looks at the extent to which juries have comprehended the instructions given to them by the judge. “Jurors’ comprehension—especially of judges’ instructions—is generally poor. Performance varies depending on the subject matter and testing format, but figures under 50% are not uncommon. Such findings have led the American Bar Association to advocate rewriting instructions, an effort that many jurisdictions have undertaken” (Bornstein and Greene). This shows that comprehension can be a key factor in affecting jury decisions, as whether or not they comprehend the information given to them will play a role in how they ultimately decide to judge the evidence they see at hand. This also suggests that new implementations can be made to bridge this divide, where juror instructions can be simplified as best as possible in order to avoid misinterpretations.

The second category is reliance on evidence, which essentially suggests that jurors tend to remember information consistent with their verdict bias, similar to universal decision-making processes. It is important in this category to consider questions such as, “do [jurors] use evidence they are supposed to use and ignore information they are supposed to ignore (often referred to as ‘‘extralegal” evidence)? Do they discriminate among plaintiffs differing in injury severity, eyewitnesses with good (vs. poor) opportunities to observe a crime?” (Bornstein and Greene). It has been revealed that “findings on these questions are generally more positive than negative,” indicating that implicit biases will automatically have an effect on juror decision-making, conscious or not (Bornstein and Greene). If a juror has already internally determined which side they personally favor, they may tend to only recall information within the trial that supports this

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bias, and by ignoring contrary information, may fail to conduct a holistic evaluation of the case at hand.

The third and final category is comparison to expert decision-makers, meaning how jurors will use perceived credibility or tangible credentials to impact their final verdict. In specific, “jurors attend to peripheral cues associated with the evidence, such as the perceived credibility of a lay witness, the credentials of an expert witness, or the attractiveness of various legal actors” (Bornstein and Greene). Along with these biases, “other heuristics, including the hindsight bias, counterfactual thinking (considering alternative outcomes), availability (relying on how easy it is to retrieve information when making judgments), and representativeness (over attending to salient features) have also been implicated in juror decision-making outcomes,” all of which fall under the broad category of comparison to expert decision-makers may also impact how juries make decisions. (Feigenson). In addition, the emotions or moods of jurors can affect how they review information. Research has shown that jurors may unconsciously construe evidence or process information that is consistent with their emotions, which can ultimately affect their verdict preference. These cues and biases show that there are a variety of factors in relation to comparison of decision-makers that could potentially contribute to a jury’s decision, including perceived credibility, hindsight bias, availability of information, and others. Ultimately, the category of comparison to expert decision-makers and biases that fall under it highlights the need to determine what the specific comparison factors are. This can be done through conducting target studies towards credibility or various other factors of comparison, thus helping to prevent unjust trials.

Psychology and Rational Choice Theory both show how juries will be impacted by various external components that can ultimately hinder their ability to look at things from a

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holistic perspective. Broadly, these external components can be defined under jury comprehension, reliance on evidence, and comparison to expert decision-makers. These factors stress a major flaw in the US government as many of these factors are currently present in the governmental structure and, therefore, place emphasis on making changes in order to account for the respective flaws.

C. Ambiguity Attitudes as They Relate to Juries and Criminals In addition to external factors within the courtroom, internal behavioral tendencies, known as ambiguity attitudes, can also impact one’s decision-making. These ambiguity attitudes can be explored in relation to jury and criminal behavior. There are two major behavioral anomalies that can be looked at in the criminal and jury behavior context. Both provide reasoning as to how juries come to their final decision as well as what decision-making processes people use when committing a crime.

The first behavioral anomaly is ambiguity aversion which “occurs when a person conducts cost-benefit analyses with incomplete information about the probabilities of various outcomes, like detection and punishment. Rather than relying on unbiased estimates of the probabilities, people will often make pessimistic predictions due to their distaste for uncertainty” (Frank). Ambiguity aversion tells us that when there is uncertainty regarding an outcome, people exhibiting this behavior tend to assume more negative outcomes than what reality suggests.

The second ambiguity attitude is “ambiguity-seeking behavior, [which] is the exact opposite of ambiguity-averse behavior. When ambiguity-seeking individuals make a cost-benefit analysis using incomplete information regarding the probabilities of future events, they rely on an optimistic estimation rather than an unbiased estimation, overweighting the probability of a positive outcome due to their preference for the unknown” (Frank). Individuals with

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ambiguity-seeking behaviors will thus have more positive outlooks on ambiguous situations, which, like ambiguity-averting behavior, can be an impacting factor in the jury context, for better or worse.

In terms of grouping individuals to either ambiguity-averting or ambiguity-seeking, most will not exclusively be part of one side and rather will exhibit each behavioral characteristic depending on the situation. “When facing a low probability of a gain, people tend to be ambiguity seeking, and when facing a high probability of a gain, they tend to be ambiguity-averse. While the underlying probability at which individuals switch from ambiguity-averse to ambiguity-seeking likely depends on the underlying circumstances, Viscusi and Chesson estimate that people become ambiguity-seeking when the underlying probability of a loss exceeds fifty percent” (Frank). Essentially, one’s behavior in ambiguous situations depends on the probability of gain. In situations with a lower probability of gain, individuals tend to exhibit ambiguity-seeking behavior, whereas a higher probability of gain indicates more ambiguity-averse behavior. In relation to juries, the stake of a trial can impact the way a jury decides on an outcome. In addition, the amount of gain or loss an individual juror may see in the ambiguous situation could ultimately play a role in how they view the evidence. With respect to criminals, when someone considers committing a crime, the higher the probability of gaining in an ambiguous situation, the more individuals will view the situation in a negative manner.

D. Structural Changes and Implementations to Government Ambiguity attitudes affect how individuals will choose to act, and depending on the context of the situation, someone may exhibit a certain type of ambiguity attitude. This is

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important as the ambiguity attitudes of jurors and criminals alike may vary depending on the situation at hand. Knowing these attitudes and how they may change can be revealed through analyzing an individual's ambiguity tendencies for patterns. Ultimately, ambiguity attitudes provide a framework to crime deterrence: the patterns present from individual behavior in ambiguous situations can be used to take preventative measures towards crime rates by implementing changes according to these attitudes. In addition, ambiguity patterns can also be used to hone in on factors that affect jury decision-making. In this sense, ambiguity attitudes suggest that structural changes can be made to the government in order to prevent crime by predicting the actions of criminals.

For the majority, who possess ambiguity-aversion attitudes, states can implement policies that increase the level of ambiguity present in the legal system. “The introduction of ambiguity aversion does not only change [people’s] decision process; it also changes the policies that the state can implement to deter [them]. The state can still utilize the traditional deterrence methods of increasing the probability of detection or the severity of the punishment to deter [people], but it can also deter [someone] from committing a crime by increasing the amount of ambiguity surrounding detection. For instance, randomizing police patrols might make it harder for criminals to predict the probability of detection and deter them from committing crimes” (Frank). By implementing this change in the government, crime can largely be reduced simply due to behavioral tendencies. Specifically, if the ambiguity of a situation is increased, for example, the detection of a crime, the higher the stakes and potential gain will be, thus making it more likely for an individual to predict a negative outcome. This would then deter individuals from committing crimes due to the situation's ambivalence. Likewise, for jurors, if the potential gain

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of a case is higher for either themselves or the defendant and thus has higher ambiguity, the juror may fall back to ambiguity-averting behavior as well.

Ultimately, the effectiveness of policies implemented depends on the individual ambiguity attitudes that one possesses. “Specifically, [policies will look at] potential criminals that exhibit various ambiguity preferences as well as their various reactions to changes in ambiguity. A policy that increases the ambiguity of detection will succeed in reducing total crime levels as long as the deterrent effect it has on ambiguity-averse individuals outweighs the countereffect it has on ambiguity-seeking individuals. Similarly, a policy that decreases the ambiguity of punishment will succeed in reducing total crime levels as long as the deterrent effect it has on ambiguity-seeking people outweighs the countereffect it has on ambiguity-averse people” (Frank). Thus, there are important considerations to be made before deciding to implement a policy that may favor a certain ambiguity attitude, as it is crucial that any change doesn’t have a countereffect on those possessing the opposite attitude.

Ambiguity attitudes tell us that increasing or decreasing ambiguity in situations will play a large role in how an individual chooses to act. This basic principle can be applied in the context of criminals, in which adding or reducing the ambiguity of punishment can be used as a preventative approach to crimes. Additionally, ambiguity tendencies can also be a factor to consider when looking at jury decision-making. Based on both the context of the trial at hand and the behavioral tendencies of the individual, the juror may conduct a rational cost-benefit analysis according to those internal preferences.

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E. Three Interlinked Problems to Rational Choice Theory

Rational Choice Theory, like many psychological theories, isn’t able to provide justification for all types of behaviors. There are several issues of RCT that can be explored—the three major issues being collective action, social norms, and social structure.

The first question is that of collective action. “If individuals calculate personal profit to be made from each course of action, why should they ever choose to do something that will benefit others more than themselves?” (Green). Essentially, RCT looks at weighing the costs and benefits of an action before executing the action. With this in mind, it doesn’t make sense for someone to act in a way deemed as self-less, as in those situations, the cost is likely more than the personal benefit the person would be receiving. However, in real life, this has clearly been proven wrong since people will act in altruistic ways. Therefore, there is a question to be considered with regard to what Rational Choice Theory postulates. In order to refute this problem of collective action, the idea of ‘selective incentives’ can be explored. Selective incentives are “private goods” which individuals may receive after making actions to benefit a “collective good” (Green). “Selective incentives alter the rewards and costs in such a way as to make support for collective action profitable” (Green). For example, if someone is considering joining a nonprofit organization dedicated to targeting environmental issues out of selfless desire, Rational Choice Theory may justify this by stating that the potential rewards and selective incentives appealing to the individual, such as planting more trees to increase air quality may be the reason why they choose to do this. Likewise, criminals may choose to commit a crime under the influence of someone else bearing this same intangible external motivations.

The second question examines social norms. “Why [do] people seem to accept and to follow norms of behavior that lead them to act in altruistic ways or to feel a sense of obligation

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that overrides their self interest” (Green). In relation to the previous question’s argument of why someone would act in a way more beneficial to someone else than themselves, this question once again refutes RCT by considering self-less behaviors in which the costs outweigh the potential benefits. Here the idea of moral and social obligations can be considered. If one has an obligation to an organization or individual, they may act in a way deemed altruistic; in reality, the cost of not acting in this selfless manner would likely be worse than the cost to act in a selfless manner due to certain social norms that must be followed. Additionally, “people are willing to incur costs and imbalances in their exchange relations when they are formed into long chains of actions” (Green). In other words, individuals may analyze potential benefits from their actions in the future and therefore could choose to act in altruistic ways, in turn accounting for the question of social norms.

The third and final question looks at social structure, specifically, “of how it is possible for an individualistic theory to explain and take proper account of the existence of larger structures” (Green). Existing social structures and norms similarly influence behavior, therefore individual actions cannot be the sole factor used to judge behavioral tendencies. External factors, such as one’s social structure, can influence their actions through internal biases that RCT simply does not account for. For rational choice theorists, social structures are viewed as “chains of interconnected individual actions” that form a cohesive social network filled with various constraints such as social norms and obligations. Essentially, social life is seen as “unintended consequences of individual action,” and therefore, when individuals make choices according to RCT, they may not fully be aware of the constraints at hand (Green). Thus, they are still performing a rational cost-benefit analysis of their actions to the best of their abilities given the knowledge they have. In that sense, actions are still consistent with the main assertions of RCT.

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These three interlinked factors—collective action, social norms, and social structure—highlight possible issues for RCT as a whole; however, ultimately, Rational Choice Theory’s main assertion still provides justification for the problems at hand. Individuals will use self-interest as a starting point for their actions and will conduct a cost-benefit analysis to make decisions. This point can be applied to the majority of situations in order to look at the impact of external factors and internal ambiguity attitudes on this rational analysis.

III.

CONCLUSIONAfter exploring Rational Choice Theory and various ambiguity attitudes, it can be concluded that these psychological tendencies impact both juries and criminals, influencing their own behavior. Rational Choice Theory postulates that individuals will act in a rational manner, and the way in which they do this can be affected by external factors. In terms of juries, these external factors can be broadly categorized into comprehension of instructions, reliance on evidence, and comparison to expert decision-makers. These factors can hinder the ability of juries to holistically consider the information in a trial, thus causing biases in how a rational decision is made. In addition to external factors, internal factors such as one’s ambiguity attitude inherently play a role in decision-making. These ambiguity attitudes tell us that both increasing or decreasing ambiguity attitudes in situations play a large role in how an individual chooses to act. These tendencies can be harmful to juries as they can sway their opinion in either direction. However, in terms of criminal activity, it can make it easier for the government to reduce criminal behavior by, for instance, increasing or decreasing the ambiguity surrounding detection. Ultimately, these external and internal factors highlight how easily human behavior can be affected. In the jury context, while trials are meant to be fair and equitable processes, ambiguity

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attitudes and external factors like comprehension of instructions and reliance on evidence can enact biases, which harm the principles of the court. For criminal activity, internal behavioral tendencies can impact criminal actions. Both these effects emphasize the pressing need for a reduction of external factors that may influence juries as well as for changes in government structure that mimic criminal ambiguity attitudes, thus reducing crime rates.