PUTTING THE SPOTLIGHT ON BIAS BLIND SPOTS
In an ideal world, every decision we make would involve a careful and logical evaluation of every fact, data, or piece of evidence associated with the subject of the decision. In this world, we would not rush to judgement based on previous experiences (e.g., I was bit by a dog as a young girl, so I do not trust this dog on the street). We would examine the available evidence (this dog is not barking or growling, it is on a leash held by a young boy, the owner assures me it is a nice dog, so I should trust this dog). But our brains don’t, and in fact can’t, operate this way.
For reasons explained in great detail by neuroscientists and psychologists, our brains must rely on shortcuts to make decisions. There is a wide body of research on all the ways that our brains efficiently make decisions (the vast majority of which this blog will not address). These efficiencies are the only way we, as humans, can get through each day without being paralyzed with analyzing every situation as unique. But this is also the fuel by which our biases thrive. Most of the time, if not all of the time, we are completely unaware of these processes that are occurring behind the scenes. If we don’t have a conscious check on what our brains are doing, we may be led astray by these shortcuts that unknowingly skip pertinent information and ultimately arrive at the wrong conclusion.
When it comes to jury verdicts, we can’t stop the biased decision-making process, but we can help prevent a biased decision. Humans have a bias blind spot – we can’t compensate for our own cognitive biases if we do not know they are influencing our decisions. So we have to shine a spotlight on that blind spot. The Western District of Washington has taken a bold step in shining the light on unconscious stereotyping. Every prospective juror is shown an educational video about implicit bias making its way into deliberations. The video directly instructs jurors to ask themselves if the evidence, versus a pre-existing stereotype, influenced their judgements. Every court across the country should show such a video. But don’t wait for that to happen in your jurisdiction. You can give your own advisory in your closing, if not sooner.
We’ve advocated for a long time that closings should include teaching jurors how to deliberate. This involves, among many other things, pointing out the blind spots. There are a number of decision-making biases that may need spotlighting.
The following are pitfalls and solutions to three of the most common decision-making biases we see in deliberation.
The bias in action: Confirmation bias is the tendency to search for or interpret information in a way that confirms a pre-formed conclusion. We see this occurring in mock jury deliberations all the time. A juror(s) starts deliberation with a decision in mind – e.g., the defendant committed fraud. So, they search for the document that proves fraud. And to the defendant’s detriment, they find that one piece of evidence that confirms their conclusion, and deliberation is over.
A solution: Teach jurors to look at all of the evidence before reaching a conclusion. Inform them that humans have a natural tendency to look for evidence that confirms a preconception. Spotlight this process and tell them how to avoid a potentially biased decision. “In this case, you might think to yourself right now as you sit here that the defendant committed fraud. And your brain will reward you if you find one piece of evidence to support that. But the judge in this case will instruct you that your duty is to examine all of the evidence and listen to everyone’s opinions, and only after that careful consideration can you reach a conclusion.”
The bias in action: Rather than process every bit of data we are presented with, our brain would prefer to use the availability heuristic – judging what is more likely by what is most easily accessible in our own memory, which is biased toward memorable data such as vivid, unusual, or emotionally charged examples. I debriefed a jury in a civil sexual abuse assault case in which the plaintiff claimed one of her damages was the inability to have intimate relationships. After a long cross examination, she answered the defense lawyers’ question about recent intimate experiences, with, “I haven’t been with a man 5 years, but after this cross examination, I feel like I need to go home and have sex.” Every juror mentioned this answer early in my interviews, and even though they assured me it didn’t influence their decision, they each said that it decreased the likelihood that she was damaged by the alleged abuse. They reasoned that anyone who was damaged the way she claimed wouldn’t make light of the circumstance.
A solution: In cases with emotionally charged, dramatic, or otherwise memorable testimony or evidence, make the jurors aware of the tendency for that evidence to drive decisions. Warn them that what is most available in their mind (the memorable moments of trial) is not the only evidence they should focus on. “There were certainly some dramatic events in the courtroom during this trial. When you go back to deliberate, you may find yourself focusing on those events. That is only natural. Our brains focus first on what is easiest to recall. But you should not let your examination of this case end there. Before you are done, ask yourself if your verdict is a product of looking at all of the evidence, not just the most memorable part of trial. Make sure you carefully examine your verdicts and be sure you have looked at everything.”
The bias in action: “Shoulda, coulda, woulda.” A repeat resident on our trial strategy worry list for defendants is the tendency to find negligence based on knowing now what happened then. Hindsight bias is unsettlingly common, and equally as difficult to overcome. We can’t assume that people will have the ability to discount the fact that the plaintiff’s arm was severed when determining the safety of the machine. Naturally, they will assume that they would have been able to predict the accident, and therefore someone must have done something wrong. The analysis of the defendant’s conduct is then subjected to an overly-confident, biased view of what constitutes reasonable care.
A solution: It’s not enough to rely solely on the hindsight jury instruction. Jurors need to be primed in opening that they are likely to be influenced by the outcome of the accident. Several solutions may help reduce the influence of hindsight bias:
Don’t wait until closing to spotlight the potential for hindsight bias. In opening tell them, “You’re listening to this case with the benefit of knowing what happened. But this trial is in some way a historical journey back to the time before this accident occurred.” Tell them to listen carefully to the evidence about what was known at the time or before the accident, not what we know today. Then in closing remind them that they should be looking at the pre-accident information when determining what a reasonable person would do with that information.
Jurors need to understand what hindsight bias looks like in action. In closing instruct, “You might have the natural tendency to say, ‘but someone got hurt,” when evaluating this case. If you hear yourself or a fellow juror saying that, check your thinking and remember the instruction not to be influenced by your hindsight bias.”
Analogize to “Monday morning quarterbacking.” It may seem like the obvious solution, but it works. Arming jurors with the easy-to-remember phrase “Monday morning quarterbacking” allows jurors to question if a potential bias is at play. It also helps explain why probabilities matter at the time decisions are made. “The coach, players, and fans all know that the pass works 75% of time in this situation. The running play has a low probability of success. So, the pass is called. But it didn’t work. The natural tendency is to say, ‘I know they should have called the running play,’ but just because the pass failed doesn’t mean it was the wrong call. The probabilities didn’t change. The coach made the right call; the play was executed as designed.”
Preempt attempts to go back in time and predict the future. “No one can predict what will happen. That’s why the defendant makes decisions based on what is likely (or not likely) to happen. You might say to yourself, “Well I could have told you this would happen,” but that doesn’t change the probabilities. Furthermore, just because this accident did happen, you cannot revise the odds. The probabilities haven’t changed. In order to be sure you are not biased by your hindsight, you must look at the objective data when deciding this case.”
Make a distinction between ordinary care and extraordinary care. “The conduct of the defendant needs to be judged on ordinary care. That means you need to look at the probability that this accident would have occurred. You heard that there was a 1 in 1.4 million chance of this accident happening. It would be completely un-ordinary, extraordinary in fact, for the defendant to have done anything differently. When you are thinking about what should have been done, ask yourself if that is ordinary conduct.”
Decision-making biases are at play in every deliberation. Whether it be implicit bias, negativity bias, or belief bias (to name a few more), making jurors aware of the shortcuts they might take when deciding the case increases the chance that they engage in the thorough and logical evaluation of the evidence that your case deserves.