Domarens intuition - ett nödvändigt ont? - En tvärvetenskaplig analys om domarens möjligheter att undvika systematiska tankefel vid bevisprövningen i brottmål

Sammanfattning: This paper is concerned with cognitive biases in legal decision making. A bias is a systematic error in thinking which can be explained by the way the human mind is designed. There are reasons to believe that judges fall prey to biases and errors when they are confronted with evidence in Court. The author discusses whether it is possible for judges to avoid biases when they evaluate legal evidence in a criminal case, and if so, how such errors can be reduced. Research on judgment and choice shows that people think in two different ways – intuitively and more slowly. Intuitively processes are also called System 1 processes while deliberative processes are often referred to as System 2 processes. If someone is relying on intuition when confronted with a problem which can only be solved by deliberative thinking, there is a risk of cognitive biases. In order to avoid such errors in evidential reasoning, judges must override their intuition with deliberation. Research reveals that it is difficult to stop people from relying on their intuition. Thus, it is impossible to eliminate biased reasoning in legal decision making. However, it can be argued that judges can take steps to at least reduce the risk of intuitive thinking, and thereby reduce the risk of cognitive biases in legal decision making. The conclusion is that judges can make their judgements less intuitive if they use some kind of method to evaluate legal evidence. Furthermore it is important that judges make sure that they evaluate evidence in line with rules and principles underlying the legal system in order to reach well-reasoned decisions, free from errors. But most of all, in order to override their intuition, judges have to learn about intuition and what intuitive thinking can lead to in legal decision making. In other words, judges should study research on judgement and choice. By doing so judges can probably reduce the risk of falling prey to cognitive biases and thereby increase the likelihood to produce accurate outcomes.