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The Psychology of Unknowing: Inadmissible Evidence in Jury and Bench Trials

By Chortek, Madelyn | The Review of Litigation, Winter 2013 | Go to article overview

The Psychology of Unknowing: Inadmissible Evidence in Jury and Bench Trials


Chortek, Madelyn, The Review of Litigation


I. Psychological Explanations for Jurors' Inability to Follow Limiting Instructions ....................121

A. Psychological Explanations for Juror Behavior ....................122

1. Motivation-Based Theory ....................122

2. Ironic Mental Processes ....................123

3. Mental Contamination ....................123

B. Mock Juror Research ....................125

C. Legal Implications ....................127

II. Research on Judges and Legal Implications for Parties ....................128

A. Reasons Judges May Be Better than Juries ....................129

B. Reasons Judges May Be Worse than Juries ....................130

1. Over-Optimism Bias and Egocentric Bias ....................130

2. Judges Act Alone ....................132

3. Judges See More Inadmissible Information than Juries ....................132

C. Existing Research on Judicial Decision-Making ....................133

1. Landsman and Rakos Study ....................133

2. The Wistrich et al. Study ....................134

D. Legal Implications ....................137

III. Solutions ....................138

A. Jury-Specific Remedies ....................138

B. Judge-Specific Remedies ....................141

C. Remedies for Both Judges and Juries ....................143

IV. Conclusion ....................145

Both state and federal courts have rules of evidence that exist "so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination."1 The rules of evidence are shaped by policy reasons, such as fairness, and by attempts to improve fact-finding.2 To that end, evidence may be admissible, inadmissible, or admissible for a limited purpose.3 While limited purpose evidence and inadmissible evidence are two distinct types of evidence, both are mentally taxing on judges and juries who must disregard pieces of information when making decisions.4 Since the psychological problem is the same, the term "impermissible information" will be used to describe both types of evidence for simplicity and clarity. If a jury hears impermissible information, the judge will give a limiting instruction.5 When this instruction is given, or in some cases even if it is not given,6 the error is considered harmless unless it can be proven otherwise.7

Although psychological research concludes otherwise, the United States Supreme Court decides cases based on a strong presumption that juries follow limiting instructions.9 In Lakeside v. Oregon, the Court upheld the trial judge's limiting instruction regarding the defendant's decision not to testify over the defendant's objection.10 The Court rejected the defendant's argument that the instruction would cause the jury to give more weight to that which he did not want them to consider and called the defendant's argument "dubious," stating that it rested on "speculative assumptions."11 Similarly, in Carter v. Kentucky, which was decided a few years later, the Court held that the trial court should have given a limiting instruction about the defendant's failure to testify.12 The Court reemphasized its belief in limiting instructions and stated, "We have not yet attained that certitude about the human mind which would justify us in ... a dogmatic assumption that jurors, if properly admonished, neither could nor would heed the instructions of the trial court."13

Despite the Supreme Court's belief in the jury's ability to follow instructions and ignore impermissible information, the number of jury trials has declined precipitously as a result of increasing skepticism about juries. Lawyers and their clients may have more faith in judges' abilities to ignore impermissible information because judges have practice with such endeavors, generally have more education, and have background knowledge of the law.

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