Applying Game Theory to the Legal System
It is worth pondering whether Game Theory couldn’t apply expediently to an assessment of the likelihood of a legal outcome, a legal trial.
Game Theory is a process that models strategic interactions between two or more players in a situation containing set rules and outcomes. Game theory is applied in decision making, for example in an arms race between two nations. It isn’t usually thought of as applying to the legal system.
Why would Game Theory find application in the legal system? Simply stated, the abstract notions of justice and rule of law do not hold sway over the career-serving best interests of the players involved, the lawyers and judges. Decisions need to be made and are made outside of the courtroom and before trials by the players. Those decisions, in practice, often follow best self-interest principles, and not legal ethics or rule of law.
The extent to which defense will be provided for a defendant by his/her attorney, and the extent to which evidence will be presented are decisions that are made in advance of a trial, for example. All of the players are aware of the payoffs that accompany certain choices. For the legal game, betraying the client/defendant can make the most sense as a decision, as the players wind up asking, “what is in my best personal interest.”
A trial should be what is known as a non-cooperative game. That is, the defense lawyer wishes to win a case for a client and provide a loss to the prosecution. In reality, many legal cases are a cooperative game, where the defense lawyer collaborates with the prosecution to limit client defense for the purpose of benefiting parties more influential than the defendant, thereby turning a loss for the defense lawyer in court into an actual longer-term benefit to him/her. The abstract, idealist notion of justice is not able to prevail against this self-interest.
While justice, professional ethics and fairness are said to govern the legal system theoretically, in practical fact each “player” in the legal process has an eye toward how a legal decision will influence his or her own career. Nothing says this better than the comment made to me by a Swiss lawyer: “In Switzerland, it is the weakest link that is found guilty.” The weakest link in this case means the individual with the least influence and the least ability to influence the local legal establishment and its priorities.
Were a legal trial what is referred to in Game Theory as a “non-zero sum game,” this would mean that a “win” for a defendant (an acquittal to a criminal charge, for example) would not represent a “loss” for any other player in the system (e.g. the judge, the prosecutor/opposing lawyer).
Legal trials should be non-zero sum games, as the theoretical goal of the legal system is to determine whether a defendant committed a criminal act or not. But this is not the case in actual practice. The fact that justice may have been done in a legal outcome often does not override the fact that a win for a defendant represents a loss for the prosecution. If the prosecution loses, perhaps the case should have been settled outside of court in the first place.
The fact that an acquittal of a defendant represents a career loss for the prosecution is reflected in the not-uncommonly reported concealment of exculpatory evidence by the prosecution, a clear violation of professional duty but an act virtually never subject to punishment.
If we apply the principles of Game Theory to a legal trial– that is, examining the interests/powers of the individual players– we would see that the interests of the players in the legal system often far override the interests of justice for a single defendant and his own lawyer.
We can set up a relationship, like this:
The overall interests (OI) of the prosecution plus the OI of the defense lawyer must not be negative in a case of defendant acquittal. In other words, for a defendant to prevail, his win must not impose a loss on the prosecution and his own defense lawyer that exceeds the gain of an acquittal for himself and his defense lawyer.
The prosecution can represent powerful interests, such as the police and influential institutions, such as a university. Only an exceptionally influential defendant can contribute so much to the career of a defense lawyer that said defense lawyer will see his OI outweigh the damage to his career that may arise from the negative impact of inflicting a loss on the OI of the prosecution through an acquittal.
Of course, a defendant should have one other factor on his/her side: the notion of justice itself should be a goal and an inspiration to all of the players in the game and add to the plus side for all, not merely a defendant. Indeed, this may be the case when the cameras are on and media is involved. Everyone likes to showcase the righteousness of their own legal system to the world. But in average cases the notion of justice only has meaning to the idealistic lawyer.
How many idealistic lawyers who actually practice criminal law do you know?
A Swiss lawyer complained to me that “the prosecution has too much power.” That same lawyer, however, simply capitulated when faced with that power, even to the point where he ignored clear police transgressions against his client. Too much effort involved. When defense lawyers shrink from challenging the prosecution because of their power, the prosecution only amasses more power.
That same lawyer also informed me that, “The Swiss legal system is worse than that of the USA.” Why? One reason is that in the USA a jury of twelve people must be bamboozled to manipulate a trial unfairly. To be sure, this happens routinely. However, in Switzerland often only one, lone judge needs to be manipulated. That judge, in turn, can manipulate the transcriber, to set the official record straight. Also, Swiss media tends to be more timid about criticizing Swiss institutions.
No one wants to sully the “pure and perfect” on the quality label. Switzerland is a small, close country perceived internally as relatively powerless and therefore possibly justified in falsely maintaining images and cutting certain corners for survival’s sake.
As one journalist from a prominent Swiss media publication complained, “You run into these people all the time, at train stations.”
People tend to know each other, express sentiments to each other, and California isn’t available as a refuge.