By Dr. Ken Broda Bahm:
As you begin reading this post, please don’t think about the white bear. Seriously, don’t think about it.
Did that work? Or are you now thinking about the white bear even more? That is the classic example in psychology research on the counterproductive effect of “thought suppression” instructions. Test subjects given that instruction are, predictably, twice as likely to think about the bear as those who aren’t given that instruction. But in trials, the idea seems to be that jurors can marshal their own cognition enough to control what they focus on, and judges seem to believe that instructions to disregard or to limit information will properly channel the attention jurors give to those facts.
But the question is, do these instructions really work in trial? On one side, the cynics would say, “heck no, if the jury hears it, they’ll use it, and apply it to whatever they want.” On the other side, the idealists would say, “yes, jurors know that the trial is a different setting and will work hard to follow the judge’s instructions.” The truth is somewhere in between. This post takes a look at the behavioral research as it applies to the unique situation of a judge’s instructions on relevance, and provides six recommendations on when they should be requested and how they should be used.
Faith in Instructions?
“Ladies and Gentlemen of the jury,” a judge might intone, “please disregard the information about…” or “The information you are about to hear is being admitted for a limited purpose…You are not to use this information for any other purpose.” This can be a common occurrence when, for example, information that would otherwise be hearsay is admitted for the purpose of determining state of mind, but not the truth of the matter asserted. Or, less commonly, an expert’s opinion might be admitted for the purposes of assessing liability, but not cause, even though it logically bears upon both. When counsel for both sides haggle between “keep it all out” and “let it all in,” the Solomon’s choice can be to allow it, but with a limiting instruction.
Adopt to Both Law and Psychology
So, for judges and attorneys trying to reconcile psychology with the rules of evidence, what do you do about the known limits of these instructions? Between the extremes of “just give up on relevance instructions” and “instruct even harder,” I can see six good practices.
1. Show judges the research. When briefing a critical motion in limine, directly target the possible compromise position that the issue can be handled through a limiting instruction. Cite some of the research above to support your argument that the information needs to be kept out, because letting it in with limits may just increase juror attention to the impermissible aspects.
2. Don’t sweat the small stuff. During trial, attorneys need to keep a moment to moment attention on when to complain, and when to just let it go. From my vantage point in the gallery, I think that attorneys too often mistake possibility for necessity when it comes to objections and curative instructions. Granted, when a timely word from the court is needed to prevent opposing counsel from wading into impermissible territory, then it is worth it. But when the horse is already out of the barn, sometimes it just makes it worse to draw the jury’s attention to the departing horse. That is, unless you are making a record for appeal, which gets me to my third point.
3. Know your audience. Is the objection or instruction for the jury, or is it for the record? If it is for the record, do it quickly, quietly, and once. When speaking for the record, the legalese that I usually discourage might end up being the attorney’s friend: “Your honor, we simply renew our objection on the matter concerning preclusion that we have briefed.” That protects your rights while saying little to the jury.
4. Don’t be a broken record. Whether you are speaking to the record or the jury, it rarely helps to ask for repeated instructions on a particular point of relevance. A single clear instruction, perhaps paired with a standing objection on opposing counsel’s efforts to get around that instruction, may be clear enough.
5. Include the “why” as well as the “what.” Instructions are easier to follow and apply if they are arguments rather than edicts. While it isn’t always possible within the narrow language judges tend to favor, an instruction that tells jurors why the given information or purpose is irrelevant is more likely win support within the panel. They’ll still think about it, of course, but they will be more able to tell each other why they shouldn’t factor it into the decision.
6. Coach your jury on how to use the limiting instruction. Even if it fails as a psychological tool, it might still succeed as a deliberation tool. If the “white bear” stands for an issue in trial, for example, you might say something like this:
Now, we all understand that at some point during deliberations, the white bear may come up. After all, you wouldn’t be human if you weren’t thinking about the white bear. But remember what Judge Smith asked you to do: If one of the other jurors brings up the white bear, then you can respond, “We aren’t supposed to be thinking about the white bear, and we shouldn’t base our decision on the white bear.”
Now, say something like that, and one thing is for sure: They are thinking about the white bear. But that is inevitable. What you need to do is to equip your favorable jurors to shoot down any juror who wants to use it in their decision. In that way, the ‘forbidden topic’ might even be advantageous in providing a way to disarm those jurors who are against you during deliberations.
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