Athletes, Domestic Violence, and Sources of Prosecutorial Bias

Recently, the National Football League has come under scrutiny for its response to revelations about domestic violence committed by players. Most of the criticism has fallen squarely on the shoulders of NFL commissioner Roger Goodell; he has been maligned for acting slowly or not at all to suspend players following evidence of domestic abuse. For those of us who think and write about ethical lawyering, the focus is often elsewhere—on a prosecutor’s decision to investigate and charge football players and other professional athletes when evidence of violence surfaces. Do athletes and other high profile figures receive special treatment? It is an empirical question that is difficult to answer. Part of the reason for this is that the answer is complicated by the degree to which an incident has received media attention and resulting public pressure. Public outcry is often a precursor to charges being filed in a well-publicized case. In cases where athletes appear to be receiving special treatment, there is often cynicism about the motivations of those making charging decisions. However, empirical work tells us that various cognitive features of human choice may be at least part of the problem. Below is a compilation of several relevant biases:

Cognitive Dissonance: Leon Festinger coined the term “cognitive dissonance” to describe the human need for internal consistency. When an individual holds two or more contradictory beliefs, dissonance is experienced, and the individual becomes psychologically uncomfortable. This discomfort leads the individual to attempt to reduce the dissonance by changing one of the internal states. This can be accomplished by altering behavior, by changing an attitude, or by rejecting some information that contradicts previously held beliefs.

Halo Effect: The halo effect is the name for a cognitive bias in which an observer’s overall impression of a person influences the observer’s interpretation of novel information about the person’s character. Edward Thorndike first identified this effect. The halo effect is related to the confirmation bias, wherein individuals look for and selectively accept information that confirms existing beliefs. The halo effect causes individuals who have favorable impressions of a person to interpret ambiguous information about that person in a positive light.

Belief Perseverance: This bias, also related to the confirmation bias, is a psychological phenomenon in which a person clings to previously held beliefs, even when new evidence sheds doubt on the early-formed attitudes.

Bias Blind Spot: The bias blind spot relates to the failure of human beings to compensate for their own cognitive tendencies. Emily Pronin, Daniel Lin and Lee Ross adopted the term “blind spot” to describe the inability of individuals to perceive their own biases (even while acknowledging that the biases influence others). Research reveals that even when individuals are educated about the existence of biases, such as the halo effect and confirmation bias, they nevertheless claim to be significantly less vulnerable to these biases than the average person.

Professional athletes tend to be admired. The popularity of the NFL (thirty-four of America’s thirty-five most-watched 2013 fall TV shows were NFL games) means that this is particularly true for players in this league. The Halo Effect describes how this positive impression can make it more likely that prosecutors and other actors in the criminal justice system will interpret ambiguous information in a way that is consistent with players conforming to the law. Research on belief perseverance tells us that the image of football players as respectable role models decreases the likelihood that contradictory information about players will be accepted. Relatedly, cognitive dissonance explains why observers might reject information that sheds a negative light on football players. Finally, the bias blind spot suggests that those in charge of evaluating information about players are—like other human beings—naive about their own biases.

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