Dateline: April, 2022, Issue 5

Can pre-instruction about the hindsight bias de-bias juror decision-making?

Hindsight bias is the tendency to overestimate the foreseeability of an outcome once the outcome is known. The hindsight bias is pervasive in decision-making, including juror decision-making.

Research finds, for example, that:

Conklin (2021) examined whether pre-instructing jurors about hindsight could ameliorate occurrence of the bias in jurors' decision-making. Participants were given one of two case summaries. One case involved an advocacy group that conducted a provocative political rally that led to two politicians being killed by someone who attended the rally. The other case involved a practical joke that inadvertently led to an injury to an elderly person. Half of the participants given each case summary additionally were provided a debiasing instruction that was read prior to reading the case. After reading the debiasing instruction (for half the participants) and one of the cases (for all participants), participants were then asked to estimate the likelihood that the defendant's behavior would lead to injury.

The debiasing instruction given to half of each case's jurors said: "Part of your duties in this case will be to determine the likelihood of injury given the defendant's actions. This will be difficult because we already know that the injury did occur and we tend to overestimate the likelihood of something happening if we know that it did happen. Therefore, as you hear the facts of the case, try and view them as someone who does not know the outcome. this way, you will not be biased in predicting the likelihood that the harm occurred."

Pre-instructing jurors about hindsight before being exposed to the case was highly effective in reducing jurors' use of hindsight. The average percentage of blame attributed to the defendant when jurors were not pre-instructed about hindsight was 56%; with pre-instruction, the average percentage of blame was 42%. Pre-instruction reduced the hindsight bias for both the prank case and the political rally case, although the debiasing instruction did reduced use of the hindsight bias more for the prank case than the political rally case.

Conklin concluded that debiasing jurors at the beginning of a trial is an effective and pragmatic method for mitigating harms of the hindsight bias on trial outcomes.

Source Conklin, M. (2021). The promising effectiveness of a pre-jury instruction at mitigating hindsight bias. Baylor Law Review, forthcoming.

Source Evelo, A.J. & Greene, E. (2013). Judgments about felony-murder in hindsight. Applied Cognitive Psychology, 27, pp. 277-285.

Source Greene, E. (2005). Conduct and its consequences: Attempts at debiasing jury judgments. Law and Human Behavior, 29(5) pp. 505-526.

Source LaBine, S.J. & LaBine, G. (1996). Determinations of negligence and the hindsight bias. Law and Human Behavior, 20(5), pp. 501-516.

Source Lange, N.D., Thomas, R.P., Dana, J. & Dawes, R.M. (2011). Contextual biases in the interpretation of auditory evidence. Law and Human Behavior, 35(3), pp. 178-187.

Source Mandel (2006). Patently non-obvious: Empirical demonstration that the hindsight bias renders patent decision irrational. Ohio State Law Journal, 63, pp. 1391-1463.

Source Scurich, N., Sule, G. & Dietz, P. (2022). Hindsight bias in assessing child sexual abuse. Journal of Sexual Agression, 28(2), in press.