1. Purpose of the research

The ultimate purpose of criminal justice is in finding the substantial truth. Although legal judgment is about decision making based on existing fact, it is hard to reconstitute the judgment in present point of view. Especially, proof of evidence is necessary to make certain actual case to be legal fact. However, various factors like elapsed time and personal interests disturb proving particular fact. Uncertainty as psychological state followed by external situation such as complexity of the case and lack of information is a critical factor which makes legal judgment more difficult. To find the substantial truth, it is most important to resolve the uncertainty of the situation.
Although it was important to manage and access uncertainty, criminal justice copes with uncertainty passively. For example, criminal judicature has transferred uncertainty as a problem of the burden of proof or limited on another principles instead of finding the substantial truth through active understandings or any efforts. Even though many researches about legal judgments in uncertain situation have been conducted, those researches limited on general psychological mechanism based on uncertainty. Therefore, it is necessary to understand people’s perception and judgmental tendency on criminal cases for finding operational plans of the jury system and understanding why the Koreans distrust the department of Justice. To that end, this study includes comparisons of national differences in legal decision making and comparisons between the legal agents and lay people for better understandings of unique legal culture in Korea. Lastly, this study identified the effects of public information and unrelated information in the situations of uncertainty, which reflects how lay people have a psychological irrationality in general. Therefore, this research is designed to find variables which have influences on legal decision making in uncertain legal situations. To that end, comparison with other countries was conducted to understand.

2. Research Methods

Uncertainty is a topic in which stimulates interests and meaningful implications in both psychological and legal fields, and it has been studied by many other researchers. However, due to ambiguous, an attribution of uncertainty, the concept of uncertainty itself has been treated as a situational factor in judgments or decision making. This study clarifies the concept of uncertainty through literature research. Contents and methods of the study have been decided through several advisory conferences with experts. To determine people’s perception and judgmental tendency under legal situations of the uncertainty, the current study conducted three different researches i) perceptional and judgmental differences among four countries including Korea in each situations of uncertainty, ii) differences between lay people and agents who made judgments in each situations of uncertainty, iii) characteristics of information which affects legal decision making in the situation of uncertainty. Valid variables, subjects and research methods were chosen in each research.
In the current study, groups of respondents read different crime case scenarios (manipulated by 6 types of uncertainty controlled scenarios) and answered questionnaires relating to legal judgments (plea for guilty or not guilty, probability to convict the actual criminals, estimated periods of sentencing and severity of the criminal case). Participants responded to psychological measurements to detect individual traits that would influence on legal judgments independently from criminal scenarios such as legal awareness, better than average, need for cognition and uncertainty avoidance.
The first cross-cultural study 500 participants per each country were recruited from USA, Germany, and Japan which have made lots of influences on Korean legal system. A total of 2,000 participants were recruited including 500 Korean participants. In the second study, 500 participants from the first study and criminal justice professionals (69 participants from police department, 50 prosecutors, and 23 judges) were recruited. The third study was conducted as an experimental research to determine two variables which affect in the situations of legal decision making. Three hundred participants were recruited.
The current research based on internet survey to measure various variables and recruit thousands of participants. Internet survey has some benefits which relatively costs less and can recruit many other countries through international networks of the research companies. It can lead the high rates of response of the questionnaire and it helps to control the research condition. By choosing the leading research companies in Korea and other countries, this study tried to reduce the limitations of representative of the panels.

3. Uncertainty in legal decision-making and psychological mechanism

People have to make certain decisions in situations of the uncertainty in general because they all have time limitations and limited cognitive resources.
There are little situational conditions when people can do optimal decision making. To save up the cognitive resources, people use clues which are not related to reasonable decision making such as the values, beliefs, motivations, or another strategies of decision making. The bounded rationality is universal. This psychological mechanism is applied to the process of decision making in the legal situations of uncertainty.
Legal judgment in the situations of criminal cases is a procedure of determining the relation of the factors and making legal decisions. The procedure connotes the fundamental problem of the ‘uncertainty’. The Criminal Procedure Code (Article 307 paragraph 1) emphasize the ‘Principle of adjudication based on evidence’. To “plead guilty”, it is necessary to have proof beyond a reasonable doubt (the Criminal Procedure Code Article 307 paragraph 2). The “reasonable doubt” is to control the psychological mechanism of “the bounded rationality” in the principle of law.
The target of forming conviction which is needed the reasonable doubt is a ‘probative force of the evidence’. Main types of the uncertainty which become the problems in the procedure of decision making occur not only in legal judgments (the Judicial Research and Training Institute, 2012) but also in Psychology field (Lipshitz & Strauss, 1997). Variables such as insufficient evidentiary support, conflicts between tangible evidences, conflicts between witness statements, lack of credibility in evidence, lack of consistency in evidence, dual possibility in evidence are the main reason of the uncertainty which lead to unreasonable decision makings.
The principle of Law suggests legal judgments have to base on only legal factors. However, when the case involves situations of uncertainty, sometimes extra-legal information (such as personal characteristics or situational information) has to be used in the case of insufficient direct evidences. In the situations of uncertainty, people in general use various psychological mechanisms such as prejudice, stereotyping, heuristics or biases. Due to those ‘unreasonable’ psychological mechanisms, people make different decisions in the same situations.

4. Results

1) National differences in legal decision making under the situations of uncertainty

Through the cross-cultural research, the first study found that there are differences in legal judgments with related psychological mechanisms depending on distinct legal cultures. Compared with other countries, Koreans perceived high probability to convict the actual criminals while they had the lowest standard of reasonable doubt. It followed by the highest rate of pleading for guilty under the situations of uncertainty. Severity of the criminal case and possibility of criticism for the cases are also high among Koreans. Different from other countries, in Korea, it increases the rate of judgments of conviction which is highly related to whether the case is morally reprehensible or not. In conclusion, Koreans generally use not only legal information itself but also use certain extra-legal information including personal characteristics when they have to make legal decisions. It shows the Korean has somehow irrationality in legal decision making.
Next, Americans have a tendency to lower rate of judgments of conviction under the uncertainty while put longer periods of sentencing in general. The distinctive thing of Americans is that they feel familiarity to the legal system.
They showed high agreements with decisions of the department of law and also showed high trust toward the department of law. The more they show high tendency of uncertainty avoidance, the more they decide a judgment of conviction.
Germans showed relatively high standard of reasonable doubt, and they also have a tendency to perceive high probability to convict the actual criminals both in general and in the situation of uncertainty. Germans, similar with Americans, perceive high possibility of conviction when they felt high severity of the criminal case. Japan was the one which was significantly different from Korea. Japanese have higher standard of reasonable doubt than Americans and Koreans while they showed lower rate of possibility of conviction and probability to convict the actual criminals. It implies Japanese cultural characteristics, passive attitudes toward judging others. In conclusion, legal decisions are mainly affected by legal culture and at the same time, those cultural based judgments and cultural characteristics consist of the legal culture.

2) Differences among lay people and legal decision making agents under the situations of uncertainty

The current study found that lay people showed general characteristics in legal judgments compared with other agents. For lay people and the police, the tendency of avoiding an error of no punishment was relatively higher than the judge and the prosecutor which reflects lay people and the police want to punish the criminals. The prosecutor perceived high probability of the defendant from the scenario as the actual criminal followed by the judge, lay people and the police. However, legal agents (such as the police, the judge and the prosecutor) showed lower rate of convictions in ultimate decision making than lay people. In regard of legal judgments, it reflects that the standard of reasonable doubt is significantly higher in the judge and the prosecutor than lay people and the police.
The results show that there are no significant personal characteristic differences between lay people and the legal agents but they show difference in the legal decision making. Even though the legal agents also have psychological irrationality (such as need for cognition and uncertainty avoidance) in general, but they showed differences in the legal situations. The legal related agents have been trained to make legal decisions with legal rationality, and its professional characteristics effect on the procedure of legal judgments.

3) Effects of informational value and public information under the situation of uncertainty

In Korea, when the criminal case which lay people show interests occurs, public deals with extra-legal information about the suspect or the victim even though the information actually does not have any relations with the legal judgment (informational value). Additionally, lay people have a tendency to make decisions depending on others’ opinion even though they do not know the exact facts of the criminal case (public information). Therefore, it the current study, effects of the variables which have influences on the legal decision making were verified.
The results show that the rate of conviction for the criminal defendant when people received unrelated information more than legal information. Even though there is no practical information of judging conviction people are affected by other situational information. Participants who were in the condition including public information about the defendant (either guilty or innocent) showed higher rate of the same judgments with lay people information compared with the controlled condition.
However, there is no influence on cognitive factors such as the confidence of the convictions, understandings of the case, or the difficult level of judgments. The results from the current study imply that variables in this study effects on the ultimate legal decision making not on the cognitive process in general.
Information values have no effects on previous understanding process of the case itself before the conviction judgments. However, when it comes to the ultimate legal decision making, there are effects of familiar information and normative effects of public information. In this regards, for the Korean, a judgment of conviction contains ‘social meanings’ not just a cognitive process based on the fact relation.

5. Conclusion

In the cross-cultural study, Koreans have a tendency of irrationality in a judgment of conviction. This tendency comes out clearly compared with the legal agents. lay people often use information about the suspects and the victims in legal decision making even though it is not related to the legal fact and are affected by public information. The results show the irrationality of Koreans in the legal decisions and it is important that this irrationality is also related to trust toward the judiciary.
Cultural differences in this study suggest the irrationality of the Korean, but it is also understood in terms of cultural variation. However, the difference between lay people and the legal agents should be paid attention in regards of the criminal policy. Even though there are little gap between lay people and the legal agents in personal characteristics, agents who related to legal system are more likely making a rational decision. The most effective resolution of the uncertainty is a “reasonable doubt” from the results both comparisons of countries and agents.
It is possible to make a reckless judgment of conviction when the standard of reasonable doubt is ambiguous. It can be followed by distrust toward the judiciary where makes different decision from lay people in general. Considering the implication that lay people is a potential member of jurors, it is necessary to consider how to apply the concept of reasonable doubt to legal decision making. From the results of this study, the standard of the legal judgment of Koreans are affected by legal related media. It implies that it is essential to make political efforts for providing the right standard of legal judgment through the media.
Considering the criminal justice, the way providing the evidences which is the main reason of the situations of uncertainty have to be changed in terms of ‘the Trial-Priority Principle’. Even though there are many legal procedure of judgments, the situations of uncertainty would be in all of evidence which had not been proved. (For example, the legal fact the suspect actually hit the victim still can contain uncertainty). In this regards, it is needed to form a new legal culture which lay people can understand the possibility of the situations of uncertainty and discuss it. It is the ultimate reason why clarifying the logical demonstration of both acceptance and rejection of the evidence is important when the judge writes a of a judgment. Additionally, arrangement of the judge for reducing workload of the judge and formation of new legal culture are needed. It might be not direct effects of eliminating the situations of uncertainty, but it is expected to suggest a new management plan for uncertainty in the long term.