형사법의 판단에 작용하는 동기식 인지에 관한 시론적 연구

The phenomenon of motivated cogniton that hapens in decision makers in criminallaw is the psychological patern of controling and leading rational reasoning. Thispsychological concept shows that the method of consequentialism that is not verywelcomed is widespread and even unavoidable. Moreover, the consequentialismregarding motivated cogniton is related with the ideologies or the group identies,which do not have any relevance of legal isues. Also, it works unconsciously. Themotivated cogniton is not a firm ground that makes legal decision maker totaly subjectto determinative causation but is not a concept of explaining about total fre-wil of ourcapacity. To cope with motivated cogniton, some countermeasures can be sugested. Theparticipants of criminal proces, such as jurors and judges, can consciously understandmotivated cogniton and reduce the efect of it. It means that jury instruction, arguments,expert testimony, education can reduce the efect of the bias. Moreover, the reformationof standards and methods of submiting evidence can get rid of the efect of motivated cogniton. Most of al, against one-sided biased character evidence, the oposite side’scharacter evidence can be submited. In aditon, we can require the stricter prof ofexceptional requirements of the exclusionary rule. Besides, the construction of bias-freproces can be another option. The premptory strike against biased jurors wil be analternative choice by a counsel. Simultaneously, the legal means to avoid a judge whohas a serious motivated cogniton should be constructed. To deter baised sentencinginformations from being heard in a guilty trial, the bifurcation betwen guilty andsentencing proces is seriously asked for. Nontheles, providing the countermeasures against motivated cogniton for thecriminal justice system is not so simple. For example, Dan Kahan asures that we don’thave any efective means to cope with the phenomenon, that the determination wil bediferent depending on the identiy based on a group or a culture. Kahan argues thatmotivated cogniton is not the proces that is made in completely diferent mode fromthe fair efort of god-faith. Also, even though there hapens motivated cogniton, it ishard to tel that it is wrong. If this dificulty is true, we canot avoid the suspicion of if individuals whoparticipates in a criminal proces can rationaly and reasonably use and aply legalprinciples and standards. Probably, trying not to exagerate the capacity of rationalreason may be the first step toward a beter solution.