Hadar Aviram on Adversarial Bias and the Criminal Process

Published on: Author: Aaron Rappaport

Malcolm Feeley is a widely respected—and, indeed, beloved—criminologist, who has had an extraordinary influence on the discipline as well as on the many scholars who came within his orbit. Cambridge has just published a collection of essays in his honor that highlights the extraordinary range and subtlety of his work. Titled “The Legal Process and the Promise of Justice: Studies Inspired by the Work of Malcolm Feeley,” the collection assembles a number of leading criminologists discussing aspects of Feeley’s scholarship.

Among them is Professor Hadar Aviram, a colleague at UC Hastings Law, who has contributed the first chapter of the collection (and served as one of the volume’s editors). Entitled “Adversarial Bias and the Criminal Process: Infusing the Organizational Perspective on Criminal Courts with Insights from Behavioral Science,” the chapter explores the apparent tension between Feeley’s insights into the adversarial process and recent research on cognitive biases.

The chapter begins with an overview of Feeley’s work on the adversarial process, noting how it departs in significant way from the scholarship that preceded him. Where traditional scholarship focused on the role of formal rules in the criminal-justice process (such as the rules of criminal liability), Feeley’s highlighted how much of what actually happens in the criminal-justice process occurs “not in relation to the set of formal rules, but rather to other factors,” which he called “folkways or informal rules of the game.”

Those folkways reflected various institutional pressures and incentives that, in the criminal-justice system, encouraged both prosecutors and defense attorneys to avoid time-consuming work to make their jobs more efficient and predictable. In effect, these incentives drove the parties to collaborate in processing criminal files. This feature can be seen most clearly in the plea-bargaining process, where efforts to speed the process along pushed both prosecutors and defense attorneys to work together to complete the processing of cases. The result was—and is—an adversarial process that doesn’t appear particularly adversarial at all.

Given this collaborative background, Professor Aviram highlights a puzzle. She notes that Feeley’s insights seem to exist in tension with recent work on cognitive science. An extended quotation from the chapter describes that tension clearly:

As Feeley was developing an understanding of adversarialism as collaborative, . . . scholars in other disciplines were exposing factors that suggested otherwise. The Nobel-winning work of Amos Tversky and Daniel Kahneman, as well as that of their students, has yielded rich findings about motivation, heuristics, and biases, which affect human ability to think rationally, accurately perceive reality, obtain and assess information. Some of these mechanisms, particularly attitudinal and confirmation biases, would suggest that actors in the criminal justice system, like everyone else, are susceptible to the rigidity and “tunnel vision” that can hinder collaboration and compromise and, what is worse, generate serious miscarriages of justice.

Professor Aviram thus poses the question: How can the criminal justice system adopt a collaborative approach given the range of cognitive factors pushing the participants apart? Her argument, in a nutshell, is that “Feeley’s groundbreaking understanding of adversarialism is not undermined by subsequent insights from behavioral sciences.” Part of the reason is that the assumptions underlying the plea-bargaining process, which appear so collaborative on their face, are heavily skewed in favor of prosecutors. Thus, she writes, “The nonconsequential, low-key, presumably amicable negotiation on sentencing among the courtroom workgroup hides an assumption that defendants are largely guilty and that the individual differences between cases are far less consequential than the similarities.”

One implication of Professor Aviram’s discussion is that defense attorneys are unwilling participants in a system of mass incarceration. Citing work by Debra Emmelman, Professor Aviram affirms that “representatives of indigent defendants are no less committed to their adversarial role—they simply define victory, and the best interest of their clients, in accordance with what they realistically think they can obtain from the process.”

At end of the chapter, Professor Aviram draws on her analysis to offer several brief prescriptions for improving the adversarial process. She argues for more empirical work on measuring “adversarial bias,” for changes to the law school curriculum, and for modifications in the hiring practices of prosecutorial offices. Though a bit more detail here would have been welcome, Professor Aviram highlights several areas that would benefit from further attention.

This short overview of Professor Aviram’s chapter does not do full justice to the piece, which provides a nuanced assessment of Feeley’s work, as well as locating its influence within a range of scholarship in the field. The chapter is evidence that this collection of essays in tribute of Malcolm Feeley will be a wonderful contribution to the literature.