Chapter 28: Psychology and Legal Realism
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Psychologists have a long history of doing research on the legal system and using their findings to influence legal doctrines and legal procedures. Their efforts support the goal of legal realism by promoting evidence informed law. Three areas of psychological research are reviewed: evidence in criminal justice procedures; psychological research on human reasoning, intuition and bias; and studies of human motivation. Two key criminal justice procedures are eyewitness identification and interrogation. In both cases research by psychologists suggests important errors that result from current practices and provides evidence informed fixes. Studies of human intuition and bias paint a picture of legal actors who make many decisions based upon non-rational factors, an influence that is often outside people’s awareness. These findings raise fundamental questions about a system that relies heavily upon the belief that discretionary decision-making by authorities can avoid errors and that legal actors can and will ignore their biases. Finally psychological studies of human motivation show that the fundamental framework through which the legal system encourages compliance with laws - deterrence - is outperformed by other models emphasizing social motives. All of this research suggests the important role that psychology can play in a legal realism approach to law.

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