Can judges ignore inadmissible information? The difficulty of deliberately disregarding.

• Author: Wistrich, Andrew J.

Due process requires courts to make decisions based on the evidence before them without regard to information outside of the record. Skepticism about the ability of jurors to ignore inadmissible information is widespread. Empirical research confirms that this skepticism is well-founded. Many courts and commentators, however, assume that judges can accomplish what jurors cannot. This Article reports the results of experiments we have conducted to determine whether judges can ignore inadmissible information. We found that the judges who participated in our experiments struggled to perform this challenging mental task. The judges had difficulty disregarding demands disclosed during a settlement conference, conversation protected by the attorney-client privilege, prior sexual history of an alleged rape victim, prior criminal convictions of a plaintiff and information the government had promised not to rely upon at sentencing. This information influenced judges' decisions even when they were reminded, or themselves had ruled, that the information was inadmissible. In contrast, the judges were able to ignore inadmissible information obtained in violation of a criminal defendant's right to counsel and the outcome of a search when determining whether probable cause existed. We conclude that judges are generally unable to avoid being influenced by relevant but inadmissible in formation of which they are aware. Nevertheless, judges displayed a surprising ability to do so in some situations.

INTRODUCTION

Trials search for truth by excluding certain truths. (1)

An entire field of law--the law of evidence--is devoted to determining what information is admissible, what information is inadmissible, and what information may be admitted for limited purposes only. (2) Decisions based on inadmissible evidence, or on admissible evidence used for an improper purpose, are illegitimate and violate principles of due process. (4) Unless any resulting error is "harmless," such decisions are subject to reversal. (5)

Evidence rules excluding relevant information fall into two categories. (6) First, "intrinsic exclusionary rules" exclude relevant information on the ground that its omission will promote accurate fact finding. (7) Rule 403 of the Federal Rules of Evidence, which excludes relevant information where its probative value is outweighed by the risk that it will confuse or mislead the fact finder, is an example. (8) Second, "extrinsic exclusionary rules" exclude relevant evidence to promote a policy interest, regardless of its impact on the accuracy of fact finding. (9) Examples include rules excluding evidence of pretrial settlement proposals (10) as well as various privileges, such as the attorney-client privilege. (11)

The best way to prevent inadmissible information from influencing jurors is to shield them from it altogether. Despite the best efforts of courts, however, jurors are sometimes exposed to inadmissible information through media accounts of the case or impermissible comments by lawyers or witnesses during trial. When such exposure occurs, judges attempt to undermine its influence by instructing jurors to limit their use of the information or to disregard it entirely. (12) Judicial opinions on the issue tend to embrace a "strong presumption that proper limiting instructions will reduce the possibility of prejudice to an acceptable level." (13)

Nonetheless, courts and commentators have long worried that jurors cannot "unbit[e] the apple of knowledge." (14) For example, Justice Robert Jackson once argued that "[t]he naive assumption that prejudicial effects can be overcome by instructions to the jury ... all practicing lawyers know to be unmitigated." (15) Judge Learned Hand agreed with this skeptical assessment. He said that when judges attempt to "unring the bell" (16) by telling jurors to limit their use of evidence or to ignore it entirely, they are recommending a "mental gymnastic which is beyond, not only their powers, but anybody[] else['s]." (17) Legal scholars concur that some prohibitory and limiting instructions do not work, (18) and may even be counterproductive. (19) Most observers agree that it is not easy for jurors to deliberately disregard what they know. (20)

Assessments of judges' capabilities tend to be more generous. Some courts (21) and commentators (22) have argued that judges are much better able than jurors to ignore inadmissible evidence. Judges themselves often apply evidentiary rules more loosely in bench trials than in jury trials (23) on the theory that "the judge, a professional experienced in evaluating evidence, may more readily be relied upon to sift and to weigh critically evidence which we fear to entrust to a jury." (24) This makes some sense. Experience might enable judges to ignore prejudicial aspects of evidence more readily than jurors, thereby justifying a looser interpretation of the intrinsic exclusionary rules. Judges also likely understand and respect the purposes behind the extrinsic exclusionary rules more so than jurors, thereby providing judges with greater motivation to ignore the evidence that these rules proscribe. Indeed, some commentators have even suggested that legal systems should have separate rules of evidence for jury trials and bench trials because of assumed differences in the motivation and capabilities of jurors and judges. (25)

Other courts (26) and commentators (27) are skeptical that judges are any better than jurors at disregarding inadmissible evidence. In Summerlin v. Stewart, (28) for example, the Ninth Circuit ruled that the Supreme Court's decision in Ring v. Arizona, (29) which prohibits judges from conducting fact finding in capital sentencing, applied retroactively. The court based its decision in part on its concern that judges are likely to be inappropriately influenced by inadmissible information they may encounter during sentencing. As the court noted,

the judge is exposed to prejudicial information which the law, in its regard for the right of the defendant, aims to screen out of the evaluation of his guilt or innocence. The law's ideal in this situation may be something of a libertarian luxury. Our only point is that the law cannot easily achieve it without a jury. (30) Still others assert that judges can disregard inadmissible information in some circumstances, but not in others. For example, in a suit brought by the Sierra Club and Judicial Watch against Vice President Cheney, (31) Justice Scalia implied that judges possess a limited ability to compartmentalize their knowledge. Prior to the Supreme Court hearing in the case, the Vice President and Justice Scalia had gone duck hunting together. (32) Defending his refusal to recuse himself, Justice Scalia noted that social contacts between high-level officials and Justices of the Supreme Court have "never been thought improper" in cases involving actions the official took in an "official capacity" rather than a "personal capacity." (33) These assertions imply that if the Vice President were sued in an unofficial capacity, Justice Scalia's personal knowledge of the Vice President's character would impinge on his ability to decide the case fairly. But because the suit involved only the official aspects of the Vice President's life, Justice Scalia argued that he could set aside his personal knowledge about the Vice President. According to Justice Scalia, judges can disregard information outside the record, but this ability has its limits.

This Article reports the results of experiments designed to test the ability of trial court judges to disregard inadmissible information. Based on judges' responses to seven scenarios that simulate the kinds of decisions that judges make (insofar as is possible given the limits of the experimental setting), we found that some types of highly relevant, but inadmissible, evidence influenced the judges' decisions. We also found, however, that the judges were able to resist the influence of such information in at least some cases, namely those directly implicating constitutional rights.

Our Article proceeds as follows. In Part I, we examine the psychological research on ignoring relevant information. We observe that people have difficulty deliberately disregarding information, and we identify three explanations for this phenomenon. We then discuss what psychologists have learned about the impact of this phenomenon on mock jurors. In Part II, we introduce our study of this phenomenon in trial judges. In Part III, we provide the results of our experiments. We describe the seven scenarios we administered, report our findings, and briefly discuss the implications of the data we collected. In Part W, we explore some of the broader ramifications of our study for the refinement of the justice system.

Our research supports three tentative policy recommendations. First, we recommend that courts should separate "managerial judging" (34) from adjudication. In particular, a judge who supervises settlement discussions should not serve as the fact finder in the same case. Second, we contend that jury trials should be favored over bench trials because judges can shield jurors from inadmissible information in ways that they cannot shield themselves. Third, we suggest that guidelines or schedules should be adopted for amorphous categories of damages--like pain and suffering damages--in civil cases. Such guidelines could structure and constrain judicial discretion and thereby limit the effect of inadmissible information encountered on judicial decision making.

1. THE PSYCHOLOGY OF DELIBERATELY DISREGARDING

   People often forget or ignore important information, but they have difficulty doing so intentionally. (35) Several theories might account for a failure to disregard information. (36) First, people who face instructions to ignore information might not want to ignore it and might attend to it even in the face of instructions to disregard it (motivation)...