JUDICIAL DECISION UNDER MEDIA PRESSURE: BETWEEN COGNITIVE BIASES AND SOCIAL LEGITIMATION OF PREVENTIVE DETENTION

Abstract

This article investigates the extent to which judicial decisions regarding preventive detention, in contexts of intense media exposure, are influenced by cognitive biases and pressures for social legitimation, thereby compromising the rationality of precautionary measures and the integrity of due process of law. The research problem arises from the tension between the technical-legal reasoning required by Article 312 of the Brazilian Code of Criminal Procedure and the influence of public narratives of fear, indignation, and punitive urgency, amplified by the digital ecosystem and the spectacle-driven coverage of criminal cases. The general objective is to critically analyze how decision-making heuristics, judicial moralization, and communicational pressure may transform preventive detention into a symbolic response for managing public outcry. Methodologically, the study adopts a qualitative approach of a bibliographical and hermeneutic-critical nature, drawing upon Luigi Ferrajoli’s theory of penal guarantism, the contemporary procedural theories of Aury Lopes Jr. and Douglas Fischer, Rosmar Rodrigues Alencar’s theory of procedural nullities, as well as recent contributions from behavioral economics applied to judicial decision-making and Brazilian studies on media-driven detentions and cognitive biases in criminal justice. The findings indicate that intensive media coverage encourages cognitive shortcuts such as confirmation bias, availability heuristic, and anchoring effect, leading to precautionary decisions justified by broad and indeterminate categories such as “guarantee of public order” and “social repercussions,” often detached from the concrete elements of the case. It is concluded that the doctrinal reconstruction of preventive detention requires hermeneutical parameters aimed at decision-making debiasing, strengthened analytical reasoning, and institutional resistance to justice by acclamation; otherwise, procedural precautionary measures risk degenerating into instruments of symbolic legitimation of pretrial incarceration.