8.5 Mental deception and the judicial decision – looking back

In addition to the biases of confabulation and the judges’ impressions and emotions, there are also biases affecting judicial decisions that are strongly connected to the review undertaken by the judge. Looking back is part and parcel of the judge’s role. In many cases, the judge must decide on a previous state of affairs. This may include considering whether improper performance of duties (art. 2:9, art. 2:138/248 DCC) or mismanagement (2:355, subsection 1, DCC) has occurred. The biases associated with ‘looking back’ are hindsight bias and the Knobe effect. Hindsight bias is a phenomenon in which the outcome of a specific decision or act seems to be evident and foreseeable in retrospect. It refers to people’s tendency to overestimate the extent to which an event could have been prevented. Knowledge of the outcome has an impact on one’s assessment of the past. There are different levels involved in hindsight bias: memory distortion (‘I said it would happen’), inevitability (‘it was bound to happen’), and foreseeability (‘I knew it would happen’). Inevitability and foreseeability in particular jeopardise judicial decision-making because under their influence a causal link might be established prematurely. Hindsight bias finds its source in three different characteristics of the human brain: cognitive, meta- cognitive (thinking about one’s own thinking process), and motivational characteristics.

A second form of mental deception associated with hindsight bias and looking back is the Knobe effect. The Knobe effect relates to the link between an outcome and the cause thereof. When faced with a negative outcome, people are more likely to establish a causal link with a certain act in the past than in case of a positive outcome. They will rather attribute a positive outcome to coincidences. In other words, if something has gone wrong, the ‘culprit’ is easily found. If the outcome is positive, identifying a winner/contributor tends to be more difficult.

Hindsight bias and the Knobe effect can lead to myopia (failure in the search for the real cause), overconfidence (such as disproportionately high confidence in the causal link established) and the likelihood that fault-based liability is reduced to strict or no-fault liability.

The impacts of hindsight bias and the Knobe effect can be reduced through judicial training, through devising alternative scenarios by the judge, through extensive information gathering by the judge, and through the process of formulating a clear objective and line of questioning by the judge.