Judging,Fast and Slow: Using Decision-Making Theory to Explore Judicial Fact Determination

Empirical research with judges and jurors has provided research into the process by which legal decision-makers come to a view about the facts of the case. However, much remains uncertain, including questions about how judges' reasoning processes might differ from jurors' when thinking through the facts of a case, and how well the insights of decision-making research translate into the noisy context of real criminal trials. This article offers a preliminary exploration of connections between Pennington and Hastie's story model of decision-making, heuristics and biases research, and areas of fact determination that have presented persistent difficulties to criminal courts, including sexual assault, child homicide and the assessment of expert testimony. I discuss some of the key insights that cognitive psychology can offer to those who are interested in understanding how decision-makers think about the facts of a case, and where decision-makers may be prone to error.