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The chapter addresses a longstanding issue of import to the courts—what instructions to disregard trial judges should issue when jurors are exposed to unfairly prejudicial inadmissible evidence. While the purpose of these instructions is easily stated—to minimize the influence objectionable evidence exerts on jurors—how best to formulate the instructions is considerably more challenging. Courts exclude this evidence precisely because it tends to unduly bias jurors against parties, contrary to the constitutional guarantee of a fair trial. What might trial judges say to effectively negate this prejudice? The chapter takes two converging approaches to answering this question. It draws upon empirical research in the behavioral sciences to: 1) evaluate previous proposals intended to improve on the traditional instructions to disregard, and 2) suggest factors that trial judges might profitably consider when crafting and delivering instructions to disregard.

The problem of exposure to information that shouldn’t be considered when making a decision comes up in many guises for both jurors and judges. In balancing justice and expedience, the law sometimes asks jurors and judges to perform impossible feats of cognitive gymnastics: to disregard certain information or to use information for one purpose but not another. Substantial research shows that jurors often do not follow disregard or limiting instructions, though there is no single theory why the failure to disregard or limit use occurs. Perhaps jurors are unable to follow instructions to disregard information on command; perhaps they cannot program their minds to use evidence for one purpose but not another; perhaps they do not want to disregard or limit because the information that has been declared forbidden is nonetheless useful to solving the mystery of the trial. This problem also is encountered by judges who, when trying cases without juries, hear inadmissible evidence in their role as gatekeepers. If they cannot properly disregard it or limit its use to a proper purpose (and the research suggests they cannot), the inadmissible evidence will affect their verdict. The inability to disregard is also likely to affect appellate judges who rule on harmless error issues. More investment is needed in devising other ways to accomplish what the law seeks to accomplish. Some psychological research has discovered procedures that increase the likelihood that juries will disregard evidence when instructed to do so. More work might find more, and more effective, procedures.

This chapter discusses the rich behavioral research on judicial decision-making. It opens with general theories of the cognitive process of judicial decision-making, focusing on the story model and coherence-based reasoning. It examines how various heuristics and biases—such as the compromise and contrast effects, hindsight bias, omission bias, and anchoring—are reflected in judicial decision-making. Special attention is given to the limited ability of fact-finders to disregard inadmissible evidence, the interactions between race and judicial decision-making, the role of non-consequentialist moral judgments in judicial decision-making, and the impact of the choice between rules and standards on the predictability of judgments. Finally, the chapter discusses two fundamental questions in the behavioral analysis of judicial decision-making: group decision-making, and decision-making by judges (as opposed to laypersons).