Unconscious Thinking (ch. 15, Reisberg)

Chapter 15 of the textbook argues that much of our thinking goes on unconsciously, and this fact turns out to have important implications for the legal system. In many trials, for example, the judge knows that jurors have been exposed to prejudicial pretrial publicity. The judge may ask jurors, therefore, whether they think they'll be able to set aside what they've heard prior to the trial, and decide a verdict based only on the trial evidence. But how accurately can the jurors answer this question? Can the jurors forecast what they'll be influenced by? Then, at the time of the verdict, will jurors know whether they were influenced by the pretrial publicity? Research on the cognitive unconscious suggests pessimistic answers to these questions.

Similar concerns apply to the trial's witnesses. Imagine, for example, that the police show you six photographs and ask you to pick out the man who robbed you. After you make your choice, the police officer smiles and says, "Yes, that's who we suspected. By the way, how certain are you in your selection?" Then the police ask some additional questions: How good a view did you get of the perpetrator? How far away was the perpetrator? For how many seconds was the perpetrator in view?

In this situation, notice that you received a bit of confirming feedback, right after the identification ("Yes, that's who we suspected."), and this has a powerful influence: As we mentioned in Chapter 7 of the textbook, participants given this sort of feedback report that they are more confident in their choice, compared with participants not given feedback. Participants given this feedback also end up remembering that they paid closer attention, had a better view, and were able to see more of the perpetrator's face, in comparison to people not given this feedback. Of course, these recollections are mistaken-because, in the experiments, the feedback and no-feedback groups got exactly the same view and could see exactly the same details.

Why does feedback have these effects? It is as if participants were saying to themselves, "I guess I can set my doubts to the side, because the officer told me that I did get it right. With my doubts now suspended, I suppose I can say that I'm certain. And since I apparently chose the right guy, I guess I must have gotten a good view, been standing close enough, and so on."

This certainly sounds as if participants are drawing inferences from the feedback and reaching conclusions about what they did or didn't see. But this reasoning happens unconsciously. Participants are aware only of the product that results-a certain level of confidence in their identification, and a set of recollections about the event. And there is nothing exotic about the unconscious status of these inferences. Instead, this is the way cognition works in general-with most of our thought process hidden from view.

In these and other ways, research on the cognitive unconscious suggests that jurors and witness do not know their own minds, and this raises serious questions about some courtroom and police procedures. It is plausible that we need to adjust some of our procedures and not count so heavily on witnesses' and jurors' knowing the nature, and sources, of their own thoughts.

To learn more about this topic in cognitive psychology and the law:

See, in the textbook chapter, pages 512-517

Wells, G. L., Olson, E. A., and Charman, S. (2002). The confidence of eyewitnesses in their identifications from lineups. Current Directions in Psychological Science, 11, 151-154

Bradfield, A. et al. (2002). The damaging effect of confirming feedback on the relation between eyewitness certainty & identification accuracy. Journal of Applied Psychology, 87, 112-120.