8.4 Mental deception and the judicial decision

Some judicial interpretation theories assume that the judge proceeds in a rational manner when rendering his decisions and acts in accordance with his intent. However, the impact of mental deception on the judge’s ability to form a judgement should not be underestimated.

Several problem areas are inherent in the judge’s role. These problem areas increase the chance that biases exert influence over judicial decisions. They include: the judge’s relatively limited knowledge on influences of the unconscious, the open standards in laws and regulations, the free assessment of evidence in civil procedure, the motivation of judicial decisions, and the expected impartiality of the court. There are various biases that can influence judicial decision-making. The first bias is confabulation. Confabulation occurs when an individual retrospectively creates the illusion that there were all sorts of conscious reasons for taking an unconscious decision. Confabulation is in principle not a bias according to my definition of bias. Confabulation involves conscious self-interpretation. However, confabulation becomes a bias because we are unaware that we are misleading ourselves. This is the unconscious part. The most common cause of confabulation is lack of information. Confabulation in judicial decision-making can for instance lead judges to unconsciously give precedence to certain pieces of evidence. The second bias pertains to the judge’s impression based on his unconscious opinions, impressions and assumptions. These aspects can be measured by the Implicit Association Test (IAT). The opinions, impressions and assumptions of the judge are unconsciously formed through trait constructs from situational factors and by the judge’s own mental state. The unconscious influence of the judge’s impression leads to a lack of transparency in judicial decisions. The third bias relates to the emotions of the judge. Just like everybody else, a judge cannot turn off his emotions completely. Alongside other biases, this can interfere with judicial impartiality in the courtroom. The lack of transparency and impartiality prejudices legal certainty and the standing of judicial decisions. The unconscious influence can, moreover, lead to an incorrect judgment. Further improvement of the judge’s knowledge on the impact of biases, decision-making on a multiple-judge panel, motivated reasoning according to the rules of logic, working out arguments in writing, and an open and critical approach by the judge can mitigate the impact of biases on the judicial decision.