The problem of decision-making is very important regardless the sphere it is applied in. However, decision-making is particularly important in the legal sphere. Not surprisingly that there exist a variety of methods aiming at the analysis of the legal decision-making. It is very important to underline that the basic goal of every method is to achieve possibly higher objectivity and effectiveness.
It is obvious that there are no ideal methods that could be applied universally in the decision-making process. Nonetheless, it is possible to find out several methods, which are considered to be quite effective and widely used in the contemporary study of legal decision-making. Among these methods may be named self-report studies, observational studies, document analysis, and experimental studies. In order to better understand the difference between these methods and find out its essence, it is necessary to discuss each of them in details.
Self-report studies have traditionally played an important role in the legal decision-making. It is one of the most widely spread methods that are currently used. Speaking about the essence of this method, it is primarily necessary to underline that it represents a kind of centrality of two basic elements: prevalence and incidence. Traditionally specialists distinguish these two key elements of self-report studies. In this respect, it is necessary to briefly define both prevalence and incidence. On the one hand, prevalence is traditionally defined as percentage of the population committing a particular act of crime (Gilovich 2002). As for incidence, it is defined as a “number of acts committed to total and/or by particular individuals” (Gilovich 2002:103).
Before, discussing the essence of self-report studies, it is necessary to briefly dwell upon the advantages of both of its key elements. In this respect, it is worthy to mention that prevalence may provide the possibility to clearly realize the fact that “all have done something but not all have done everything” (Hiday 1983:520). It means that it is important to remember about the presumption of innocence concept and remember that it is impossible to blame individuals in all possible crimes. However, this concept may need further research and studies that would in all probability need some patterns in order to be able to define the susceptibility, the degree of guilt, or whether an individual may be accused at all. By the way, prevalence also provides a number of such patterns, among which may be named patterning by gender, age, ethnicity, group characteristics, etc.
As for incidence, its basic advantages may be found in the possibility to find out some information about chronic offenders and provide the efficient assessment of patterns, relationships, etc. Furthermore, another advantages of incidence is probably even more important than previous one, for specialists often estimate that incidence helps “evaluate whether police response is discriminatory between racial groups” (Gilovich 2002:175). As a result, it is possible to estimate that incidence provides a relatively high degree of objectivity since it takes into consideration not only the personality of individuals, who either committed crimes or are just suspected, and their patterns of behaviour but also pays a lot of attention to the actions of police as a part of legal juridical system.
On discussing the basic elements constituting self-report studies, it would be logical to dwell upon the essence of the studies. In this respect, it should be said that self-report studies traditionally take into considerations extremely important patterns. Among them may be named age, gender, minority status, social class, and group delinquency.
On analyzing each pattern in details in the context of self-report studies, it is worthy to mention that age is extremely important because unlike many stereotypes predetermine, the age between 10 and 18 is not obligatory the age at which the level of crimes increase dramatically. At least it is not a very precise age group because, as self-report studies show, the peak when the level of crimes really increases is rather between 13 and 15, i.e. the age of junior high school. It should be pointed out that the data of the studies is a bit different from official data, which traditionally refer this peak to a bit older age. Nonetheless, the explanation of such a split in data is quite simple, to put it more precisely, “property crimes are most common and incidence peaks earlier than for violent crimes” (Hiday 1983:522).
Furthermore, it is necessary to say a few words about another pattern, gender. In fact, it should be said that self-report studies reveal the fact that “both prevalence and incidence are higher among boys” (Litwack 1993:480). On the other hand, it is necessary to point out that female patterns of the offense are similar to those of male. At the same time, there is a noteworthy fact that prevalence of delinquency has increased since 1975 while in contrast incidence has decreased.
Another important pattern is minority status. The self-report studies reveal that the prevalence is practically the same if compared white and black youth. At the same time, the incidence is higher among blacks but specialists explain such a situation due to “a small number of chronic offenders” (Litwack 1993:481). However, it should be pointed out that “neither of these is completely consistent with official statistics which show higher rates of police contact/arrest for black than whites” (Hiday 1983:527). This fact indicates at a certain insufficiency of official studies that should use more methods in order to receive more precise data.
Also, a few words should be said about social class, which is a very significant pattern. At this respect, it is noteworthy that self-report studies again reveal certain inconsistency between prevalence and incidence since the former is basically equal for both representatives of middle and lower class use while the latter is more typical for lower class youth.
Finally, group delinquency should also be taken into consideration and self-report studies reveal the fact that delinquency is particularly often in groups and, to a certain extent, is typical for them. Naturally, there are differences between types of delinquency but this point is also not taken into consideration by official statistics, which is rather more concerned about individuals than groups and this is another argument in favor of self-report studies and their wider use, especially in official research.
Observational studies are also very important in the study of legal decision-making since they basically refer to a practical aspect of the problem. It should be pointed out that observational studies are often used in the analysis of decision-making process in order to receive a wider information or data for analysis and, consequently, the basis of data that may be used in conclusion of observational studies is rather wide.
Nonetheless, it worth to underline that observational studies are traditionally characterized by the wide use in civil commitment proceedings and observational studies basically “examine how the legal criterion of danger to self or others is actually operationalized into a serious of heuristic criteria” (Rachlinski 2000:739). However, some specialists underline that to a certain extent, these criteria are theological criteria (Gilovich 2002), nonetheless, it does not make the observational studies or their conclusions less reliable in larger terms, if analyzed in details. In fact, these criteria form the essence, the basic principles, or key concepts of the observational studies in general. One of the basic criteria of the observational studies may be a word in as follows: “if being delinquent and being dangerous are… interchangeable, so are the finalities in treating and controlling” (Litwack 1993:484). In other words, it means that the degree of social danger should be thoroughly analyzed and researched in order to find out certain criteria according to which an individual tending to delinquent behavior, for instance, should be perceived as a socially dangerous individual. It may include a tendency of this individual to commit crimes, or to repeat the commitment of crimes, often regardless the punishment or ever a term of imprisonment then it would be possible to make a conclusion as for the social danger of an individual. It is noteworthy that basically such conclusions may be made on the basis of the observation that is the core of the observational studies.
Furthermore, when the degree of a social danger of an individual is defined than it is possible to discuss the treatment in relation to this individual and control of his/her behavior if necessary. Actually, it is a well-known fact that criminals, for instance, are different and some of them may return to a normal life after a crime once committed, while others become recidivists and cannot change their lifestyle. Naturally, these two categories of individuals need absolutely different treatment and if an individual does not tend to commit new crimes than control over him and his behavior is unnecessary while the control over recidivist should be more thorough since the risk of commitment of new crimes is extremely high.
Not surprisingly that some specialists conclude that “at the justice interface exemplified by the civil commitment, treatment and control have been equated conceptually and in practice, even if the written law clearly distinguishes these concepts” (MacCoun 1993:552). At this respect, it is very important to underline that observational studies reveal the fact that often the written law is different or even contradicting to the law in practice that naturally engenders a number of problems in treatment and control of people with antisocial behavior who tend to commit crimes, for instance.
As a result, in such a situation perspectives, motivation, and interests, as influenced by broader social representations is the most significant and even determining factor in the legal decision-making process. Consequently, observational studies contribute to the implementation of several important concepts and factors mentioned above in the legal decision-making process.
Among the existing variety of methods that are widely used in the study of legal decision-making, document analysis is probably the most important and most widely used. At this respect, it should be said that basically the legal system basically deals with documents that are considered to be objective and unmotivated, unlike human beings that interpret them. It is why in the document analysis it is really important to remain as objective as data represented in the documents are.
In fact, one of the main tasks of a researcher in the document analysis is to organize a systematized analysis of documents. It is necessary to clearly identify the nature of documents, their key structural elements, basic points and on the basis of their analysis to make conclusions and corresponding decisions.
At the same time, it is very important to have access to the possibly higher number of documents, if not all, relating to a certain legal issue in order to receive more information and data for analysis that would make the decisions based on this analysis more objective, realistic and realizable. Otherwise, when there is a lack of documents then the results would be one-sided, for instance, in the case of some trial it is logical to analyze all documents related to the case, otherwise, it will be impossible to take any reliable and just decision.
Experimental studies are also very important and often used in the study of legal decision-making. However, it is necessary to point out that this method is also widely criticised and many specialists consider that it is not a very reliable method to use (MacCoun, Litwack, Peters).
On discussing experimental studies, it should be pointed out that one of its basic concepts is the idea that in order to make a decision it is recommended to add the third option to those that are dispensable before the decision is made. In fact, the addition of the third option “alters the choices subjects make between two other options, even if the third option provides no relevant information about the other two choices” (Gilovich 2002:398). In such a way, it seems as though it is possible to analyze the two options, or the two choices objectively upbringing another one.
However, specialists criticise experimental method a lot, including such addition of the third option. At this respect, it should be pointed out that experimental studies are not recommended to be applied to juries. Actually, one of the main reasons of criticism of experimental studies concerns the low effectiveness of the results of the studies, especially in predicting real-world situations because of the effect of the selection. For instance, Richard Posner explains that “selection effects suggest that the experimental and real-world environments will differ systematically” (1998:1570). Such a statement is based on the idea that unlike the experimental subjects that can be chosen more or less objectively and randomly, people cannot be sorted in the same way. As a result, it is possible to conclude that experimental methods can hardly be applied effectively to people.
Consequently, as Richard Posner underlines, “the largely random selection of juries bears substantial similarities to the selection of subjects for experimental studies – indeed, some studies have used as subjects individuals waiting to serve as prospective jurors” (1998:1570) but individuals are not subjects that will create the problems, which have been just mentioned above.
Nonetheless, it should be pointed out that real people, being real jurors, take their responsibilities much more serious than those taking part in experimental studies since the real-life responsibility is without any doubt much higher than the responsibility during an experiment. At this respect, it is noteworthy that Philip Peters reminds that jurors are accountable for their decisions and “each juror’s vote will be scrutinized not only by other jurors but also by the judge and often by the juror’s family and friends. Jurors feel also accountable for their communities” (1999:1301). Logically, Philip Peters concludes that “this accountability distinguishes jury trials from research studies and has the potential to improve jury decision-making” (1999:1302).
Furthermore, it should be pointed out that people participating in experimental studies receive much less information than real jurors when they are asked to take a decision concerning certain cases that naturally provokes some doubts as for reliability of the results of the experimental studies. Obviously, it is possible to find other differences between experimental settings and real-world situations, which would also contribute to increase or decrease of the potential reliability of the experiment. This is why it is possible to estimate that “any conclusions from experimental studies in this area will necessarily have some degree of uncertainty” (Peter 1999:1312).
Thus, taking into consideration all above mentioned, it is possible to conclude that there are a lot of methods that could be used in the study of legal decision-making. Some of them are more reliable than others but still there are no ideal methods that could be universally used. This is why it is highly recommended to use a variety of methods in order to achieve a higher degree of objectivity and reliability of the results of various methods used in the research of legal decision-making. Otherwise, there is a very high risk of erroneous conclusions made on the basis of only one method applied. Anyway, it is still necessary to continue research in this field.
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