This study analyzes data for state criminal defendants prosecuted in New York to determine the bases upon which judges make pretrial release decisions for these defendants. Treating statutory law as defining the category of legal variables, it finds legal factors substantially affect decisions about whether to release a defendant on recognizance, the amount of bail required, and whether to offer a defendant a cash alternative to a surety bond. The impact of these factors varies, however, depending upon the particular decision being made. Factors not prescribed in the statute—extra-legal factors—are also found to affect these pretrial release decisions. Their impact, too, is decision context specific. Among the extra-legal factors that affect pretrial release decisions, the effects of status characteristics of the defendant pale in comparison to the effects of bench bias and measures of the defendant's dangerousness.

The paper examines the theoretical and empirical adequacy of Donald Black's (1976) The Behavior of Law. The work is found to be logically incoherent and its operationalization of variables problematic. The evidence that bears on its propositions does not consistently support them.

The polygraph's widespread use in the legal setting and elsewhere should be of concern to society, but especially to psychologists and lawyers. Since lying does not produce a measurable physiological response-and hence renders “lie detection” meaningless-the plausibility of the theory of so-called lie detection tests is questioned. Empirical evidence is presented that disputes the accuracy of testing and shows the high rate of false positive misclassification (e.g., misclassifying a truthful person as deceptive). An alternative procedure is recommended. This procedure, sometimes called the Guilty Knowledge Test, has some problems associated with its use and can be used only when particular information is available. However, it can be a significantly more accurate detector of guilt than the standard lie detection test.

This paper reports observations from a series of formal and empirical studies of the process of assessing the probative value of evidence in the cascaded or hierarchical inference tasks commonly performed by fact finders in court trials. The formal research develops expressions that prescribe how the ingredients of various forms of evidence can be coherently combined in assessing the probative value of evidence. These expressions allow identification and systematic analysis of a wide assortment of subtle properties of evidence, many of which are commonly recognized in evidence law. The reported empirical research was designed to evaluate the consistency with which persons actually assess the probative value of evidence when they are asked to make these evaluations in several equivalent ways. Results show that persons, when required to mentally combine a large amount of probabilistic evidence, exhibit certain inconsistencies such as treating contradictory testimony as corroborative testimony and double-counting or overvaluing redundant testimony. However, when people are asked to make assessments about the fine-grained logical details of the same evidence, these inconsistencies do not occur.

I argued in the paper that has given rise to this exchange (1982) that Wertheimer failed to distinguish between two questions: (A) Are negotiated pleas involuntary in a sense that renders them legally invalid? and (B) Are negotiated pleas entered involuntarily in a sense that justifies the abolition of plea bargaining as a matter of social policy? In his reply, Wertheimer agrees that he failed to make this distinction but disputes its importance. He offers two reasons for minimizing its significance: (1) That to decide (A) judges must decide “questions of social and political morality”; and (2) that the structure of the concept of voluntariness is the same in both (A) and (B). I will argue that (1) is false and that (2) is not true in any interesting sense.

Regression analysis is applied to civil commitment decisions to evaluate the importance of psychiatric opinion, externally visible “facts,” and judges' attitudes. Indices were constructed of evidence of dangerousness, based on information presented at court hearings, and of judges' attitudes toward psychiatrists, mental hospitals, and the mentally ill, based on their responses to Likert type items. Additional variables include respondent's prior commitment status, diagnosis, court behavior, race, sex, age, and family caring. The analysis suggests that “facts” and psychiatric opinion but not judges' attitudes are significant influences on commitment decisions.

The complexity and linguistic construction of jury instructions can inhibit jurors' ability to comprehend and apply the law. Study 1 analyzes questions asked by actual deliberating jurors in order to identify sources of juror misunderstanding in criminal pattern jury instructions. Instructions concerning “reasonable doubt,” criminal “intent,” the use of evidence concerning prior convictions, and the general duties of jurors, are selected for further investigation. Study 2 uses videotaped trial materials to pinpoint linguistic problems that confuse jurors and interfere with their abilities to accurately comprehend and apply the selected pattern jury instructions. Available knowledge concerning psycholinguistics is then applied to rewrite the troublesome instructions; in addition, legal expertise is consulted to help assure that the rewritten instructions are legally valid. Study 3 demonstrates that the rewritten instructions improve jurors' understanding relative to Pattern or No instructions. Overall, the research indicates the availability to the criminal justice system of improved methods for instructing jurors accurately and effectively in the law.

Allan Horwitz and I are in full agreement about the value of studying the extralegal sources of statutory law (such as vagrancy legislation) or of governmental social control (whether or not it is identified as law). A good deal of my own work has concerned just this (Greenberg, 1977; 1980; forthcoming; Humphries and Greenberg, 1981; forthcoming; Loftin et al., 1981).

Discretionary legal decisions have become a recent focus of theory development and policy-oriented applied research. We investigated parole release decision making in Pennsylvania from both orientations. Analyses of post-hearing questionnaires and case files from 1,035 actual parole decisions revealed that the Parole Board considers institutional behavior and predictions of future risk and rehabilitation in the decision to release on parole. Predictions seem also to be based on diagnostic judgments identifying causes of crime such as personal dispositions, drugs, alcohol, money, and environment. A one-year follow-up of 838 released parolees showed that predictions were virtually unrelated to known post-release outcomes. An actuarial prediction device was developed that is more predictive than subjective judgments. The use of decision guidelines to structure discretion is discussed, as well as the utilization of our research in guideline development by Pennsylvania.