Quieting Cognitive Bias with Standards for Witness Communications

Abstract

Last year, as part of a project to revise the ABA Criminal Justice Standards for Prosecution and Defense Functions, the ABA Criminal Justice Section initiated round-table discussions with prosecutors, criminal defense lawyers, and academics throughout the United States. The Standards under review provide aspirational guidance for all criminal law practitioners. This Article stems from the Criminal Justice Section's undertaking. It considers the wording, scope, and propriety of several of the proposed changes that address lawyer-witness communications. It begins with a discussion of the effects of cognitive bias on these communications and explains why carefully tailored standards may lessen the detrimental impact of those biases. Then, the Article examines in detail three challenging, yet common aspects of communications that the Standards seek to influence: (1) communicating with witnesses about their future communications with opposing counsel, (2) communicating warnings to witnesses, and (3) communicating with experts. Ultimately, the Article argues for clarity in the Standards to reduce the impact of unwanted cognitive bias to which we are all vulnerable.