Number range CHAPTER© 2006 Thomson/West. No Claim to Orig. U.S. Govt.
Works.

153 UPALR 1251

153 U. Pa. L. Rev. 1251

**(Cite as: 153 U. Pa. L. Rev. 1251)**

\<KeyCite Citations\>

University of Pennsylvania Law Review

March, 2005

Articles

**\*1251** CAN JUDGES IGNORE INADMISSIBLE INFORMATION? THE DIFFICULTY OF

DELIBERATELY DISREGARDING

Andrew J. Wistrich \[FNd1\]

Chris Guthrie \[FNdd1\]

Jeffrey J. Rachlinski \[FNddd1\]

Copyright © 2005 University of Pennsylvania Law Review; Andrew J.
Wistrich,

Chris Guthrie; Jeffrey J. Rachlinski

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 information **\*1252** 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. \[FN1\]

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. \[FN2\]
Decisions based on inadmissible evidence, or on admissible evidence used
for an improper purpose, are illegitimate \[FN3\] and violate principles
of due process. \[FN4\] Unless any resulting error is \"harmless,\" such
decisions are subject to reversal. \[FN5\]

Evidence rules excluding relevant information fall into two categories.
\[FN6\] First, \"intrinsic exclusionary rules\" exclude relevant
information on the ground that its omission will promote accurate fact
finding. \[FN7\] 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.
\[FN8\] Second, \"extrinsic **\*1253** exclusionary rules\" exclude
relevant evidence to promote a policy interest, regardless of its impact
on the accuracy of fact finding. \[FN9\] Examples include rules
excluding evidence of pretrial settlement proposals \[FN10\] as well as
various privileges, such as the attorney-client privilege. \[FN11\]

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. \[FN12\] 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.\" \[FN13\]

Nonetheless, courts and commentators have long worried that jurors
cannot \"unbit\[e\] the apple of knowledge.\" \[FN14\] For example,
Justice Robert Jackson once argued that \"\[t\]he naive assumption that
prejudicial**\*1254** effects can be overcome by instructions to the
jury . . . all practicing lawyers know to be unmitigated fiction.\"
\[FN15\] Judge Learned Hand agreed with this skeptical assessment. He
said that when judges attempt to \"unring the bell\" \[FN16\] 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\[\'s\].\" \[FN17\] Legal scholars concur
that some prohibitory and limiting instructions do not work, \[FN18\]
and may even be counterproductive. \[FN19\] **\*1255** Most observers
agree that it is not easy for jurors to deliberately disregard what they
know. \[FN20\]

Assessments of judges\' capabilities tend to be more generous. Some
courts \[FN21\] and commentators \[FN22\] have argued that judges are
much **\*1256** better able than jurors to ignore inadmissible evidence.
Judges themselves often apply evidentiary rules more loosely in bench
trials than in jury trials \[FN23\] 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.\" \[FN24\] 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. \[FN25\]

**\*1257** Other courts \[FN26\] and commentators \[FN27\] are skeptical
that judges are any better than jurors at disregarding inadmissible
evidence. In Summerlin v. Stewart, \[FN28\] for example, the Ninth
Circuit ruled that the Supreme Court\'s decision in Ring v. Arizona,
\[FN29\] which prohibits judges from conducting fact finding in capital
sentencing, applied retroactively. The court based its decision in part
on its concern that judges **\*1258** 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. \[FN30\]

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,
\[FN31\] 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. \[FN32\] 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.\" \[FN33\] 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.
**\*1259** 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 IV, 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\" \[FN34\]
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.

**\*1260** I. The Psychology of Deliberately Disregarding

People often forget or ignore important information, but they have
difficulty doing so intentionally. \[FN35\] Several theories might
account for a failure to disregard information. \[FN36\] 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). Second, even if they want to ignore information, people
might find it difficult to avoid thinking about information they want to
ignore (ironic process theory). Third, even if people can ignore the new
information itself, the information might still affect their judgment:
information can influence the processing of subsequent events and can
inspire beliefs that are not easily dispelled (mental contamination).
Information quickly contaminates thinking because it affects how people
process and store facts and beliefs. Even if people ignore the initial
information, its influence might still be felt. These theories all
suggest that suppressing the influence of information that is supposed
to be ignored will be difficult. \[FN37\] Research on deliberate
forgetting supports this concern.

A. Motivation

Motivation is critical to ignoring known information. People who do not
agree that the relevant information should be ignored are apt to rely on
it when making a decision. For example, jurors instructed to ignore a
damning piece of evidence might well decide to rely on it anyway, doing
a bit of rough justice by convicting a defendant they believe to be
guilty. People who are simply told to ignore relevant information are
unlikely to do so without being provided an explanation as to why they
should ignore the evidence. Direct, but unexplained, **\*1261**
instructions to disregard relevant information might well go unheeded.

Indeed, research on \"psychological reactance\" indicates that
instructions to ignore information might increase people\'s desire to
attend to it. \[FN38\] \"Reactance occurs when decision makers feel that
their freedom of choice is threatened and they respond by acting in ways
that will restore their sense of decision-making freedom . . . .
\[M\]ore severe restrictions on decision-making freedom are more likely
to arouse reactance.\" \[FN39\] Most people refer to reactance as
\"reverse psychology.\" The basic idea is that when an individual is
told to do something that limits her freedom, she may rebel against that
direction to restore her own sense of autonomy. In studies of consumer
behavior, for example, eliminating an option that had been available as
a choice increases its attractiveness. \[FN40\] Reactance can be
particularly strong in people who face instructions on how to think. In
one study, individuals who initially supported a particular position
largely reversed themselves when told that they \"ha\[d\] no choice\"
but to agree with that position. \[FN41\]

In the context of a trial, jurors might view instructions to ignore
evidence as an unwarranted intrusion on their ability to decide a case
as they see fit. \[FN42\] \"Responding to this threat to their freedom,
jurors may not only be motivated to ignore the instruction to disregard
the **\*1262** inadmissible evidence, but may even focus more attention
on the evidence they were instructed to ignore.\" \[FN43\]

B. Ironic Process Theory

Motivation aside, suppressing known information presents a challenging
cognitive task. Refraining from thinking unwanted thoughts is so
difficult that it can produce an \"ironic process\" in which people
ultimately spend even more time thinking about thoughts they are trying
to suppress. \[FN44\] When people attempt to suppress a thought, they
monitor their mental activity to verify that suppression is proceeding
successfully. To do so, however, they must keep the forbidden thought
available so that they can compare it to their existing mental state and
confirm that they are not thinking the forbidden thought. \[FN45\] As
psychologists describe it:

\[A\]ttempts to influence mental states require monitoring processes
that are sensitive to the failure of the attempts . . . . \[W\]hen
efforts to implement the intended mental control are undermined in any
way, the monitoring process itself will surface and ironically overwhelm
the intended control to yield the opposite of the mental state that is
desired. \[FN46\] Thought suppression, then, is an \"ironic\" process in
that \"\[t\]he intention to suppress a thought creates the opposite of
what is wanted.\" \[FN47\]

Researchers have used the following example to illustrate the ironic
process theory:

\[A\]n alcoholic who is struggling to keep thoughts of an icy, cold beer
completely out of mind may at various points say to himself or herself,
\"I haven\'t thought about having a beer for the last 5 hours.\" Of
course, upon making such an observation, the person has thought of the
enticing beverage. This monitoring of potential intrusions of an
unwanted **\*1263** thought paradoxically keeps the thought accessible
to consciousness and may lead to a rebound effect, or a resurgence of
the thought following attempts to suppress it . . . . \[FN48\]

In one memorable experiment illustrating ironic processing, \[FN49\]
researchers instructed undergraduates participating in an elaborate
study \"not to think of a white bear.\" \[FN50\] The participants had
great difficulty carrying out this seemingly simple task. They reported
that they thought about a white bear \"more than once per minute even
when directly instructed to try not to think of a white bear.\" \[FN51\]
Furthermore, efforts to suppress thoughts of a white bear increased the
rate at which participants reported thoughts of a white bear in a
subsequent \"free\" session in which they were asked only to report
thoughts of a white bear (but not actively suppress them). The study
suggests two principles of the human mind that make it difficult to
ignore relevant material: first, it is difficult, if not impossible, to
ignore even an arbitrary and unremarkable image like a white bear;
second, efforts to suppress thoughts about a subject might actually
produce more thoughts about that subject.

Efforts to control thought processes are subject to both cognitive and
motivational limitations that make the task difficult and can lead to
ironic results. Whether the thought is of a white bear, a rhinoceros,
\[FN52\] a hippopotamus, \[FN53\] or an inadmissible confession, people
cannot **\*1264** easily successfully implement a decision to refrain
from thinking a particular thought. Efforts to control the thoughts of
others might also induce people to resist such efforts actively. In
short, people might not want to suppress thoughts and might not be able
to do so, even if they try.

C. Mental Contamination

The prevailing view of belief formation, associated with Descartes,
posits that people form beliefs by first comprehending a piece of
information and then freely deciding whether to accept it as accurate or
dismiss it as inaccurate. \[FN54\] An alternate view, associated with
Spinoza, posits that people initially accept as accurate every
proposition they comprehend and then decide whether to \"unbelieve\" it.
\[FN55\] Building on Spinoza\'s work, psychologists argue that
misleading or inaccurate information produces a \"mental contamination\"
that persists even after people become aware that the information is
misleading or inaccurate. \[FN56\] This \"unconscious or uncontrollable
mental processing . . . results in unwanted judgments, emotions, or
behavior.\" \[FN57\] The brain does not store information in isolated
units, but in a connected whole. Information thus influences how the
brain processes new stimuli. New information also facilitates the
construction of beliefs that might persist, even if the information is
discredited.

**\*1265** What makes mental contamination particularly pernicious is
that it can operate outside of conscious thought. \[FN58\] People might
not even realize how new information has affected their judgment and are
thus ill-equipped to contain its influence. Consequently, merely
suppressing thoughts of the unwanted information will not prevent it
from affecting judgment. \"\[T\]he failure to appreciate the perils of
mental contamination may lead people to design decision-making
systems\"\--including the American legal system\--\"that are destined to
produce biased judgments.\" \[FN59\]

1\. Contaminated Information Processing

Insulating a decision-making process from inadmissible information
requires preventing this information from influencing how subsequent
information is processed. This can be challenging because information
changes how we think. It creates beliefs that can guide the integration
and assessment of subsequent information. In the jargon of social
cognition, information can activate a schema, or organizing principle.
An activated schema colors how we think in every way. It makes some
memories and beliefs more available than others. \[FN60\] It also guides
attention and interpretation of new information. Suppressing the
influence of information thus requires both suppressing the new
information and suppressing the influence of the scheme on processing of
subsequent information.

Consider the following example. What activity does the following
paragraph describe?

The procedure is actually quite simple. First you arrange things into
different groups depending on their makeup. Of course, one pile may be
sufficient depending on how much there is to do. If you have to go
somewhere else due to lack of facilities that is the next step,
otherwise you are pretty well set. It is important not to overdo any
particular endeavor. That is, it is better to do too few things at once
than too many. In the short run this may not seem important, but
complications from doing too many can easily arise. A mistake can be
expensive as well. The manipulation of the appropriate mechanisms should
be self-explanatory, **\*1266** and we need not dwell on it here. At
first the whole procedure will seem complicated. Soon, however, it will
become just another facet of life. It is difficult to foresee any end to
this task in the immediate future, but then one never can tell. \[FN61\]
Now suppose you learn that the passage is entitled \"washing clothes.\"
It is inconceivable that you can read the passage with the same
understanding of its meaning after learning the title. The title
triggers a psychological schema that inevitably organizes the flow of
the information in the passage. Knowing the title influences what people
remember about the passage and how they think about it. The influence of
knowing the title is impossible to suppress effectively.

The profound influence of activated schemata underlies the dramatic
effect of first impressions. Solomon Asch provided one of the most
compelling demonstrations of this almost sixty years ago. \[FN62\] Asch
read subjects one of two sets of adjectives said to describe an
individual\'s personality:

A. intelligent\--industrious\--impulsive\--critical\--stubborn\--envious

B. envious\--stubborn\--critical\--impulsive\--industrious\--intelligent
\[FN63\] As Asch reported:

The two series are identical . . . differing only in the order . . . .

. . . The impression produced by A is predominantly that of an able
person who possesses certain shortcomings which do not, however,
overshadow his merits. On the other hand, B impresses \[most subjects\]
as a \"problem,\" whose abilities are hampered by his serious
difficulties. . . . \[S\]ome of the qualities (e.g., impulsiveness,
criticalness) are interpreted in a positive way under Condition A, while
they take on, under Condition B, a negative color. \[FN64\] The initial
adjectives color the assessment of ambiguous adjectives that follow. The
same cognitive process is thought to underlie the widely documented
social phenomenon of \"halo effects.\" \[FN65\] Halo effects are the
tendency to assume that like goes with like: that beautiful or tall
**\*1267** people are nice, smart, and capable, while ugly and short
people are mean, dumb, and incapable. Salient information (such as
height or attractiveness) activates positive or negative associations
that color how people process everything else they learn about an
individual.

When information affects how people think about subsequent information,
suppressing its influence on judgment will be most challenging. The
organizing schemata that information triggers can be invisible, making
it hard to know what would have been different had the information not
been available.

2\. Belief Perseverance

As the mind continues to dwell on the information to be forgotten, it
elaborates on that information and incorporates it into an intricate
belief system which in turn affects subsequent information processing.
Social psychologists call this \"belief perseverance.\" \[FN66\] When
people acquire new information, they quickly incorporate it into their
knowledge that they already possess. Once they have done so, they are
likely to have great difficulty undoing the beliefs that the information
inspired. \[FN67\]

Social psychologist Lee Ross and his colleagues were the first to
demonstrate belief perseverance directly. \[FN68\] They gave
undergraduate subjects the grisly task of evaluating ten suicide notes.
They informed the subjects that five were actual suicide notes and that
five had been created for the experiment. The subjects ostensibly had to
identify the real notes. Afterwards, the experimenters told some of the
subjects that they had performed well at the task (scoring nine out of
ten right) and others that they had performed poorly (scoring below
fifty percent). Later, the experimenters informed the subjects that, in
fact, all of the notes were fakes. The subjects then had to estimate how
well they would perform a real version of such a task. Subjects who had
**\*1268** been told that they had performed well indicated that they
would do well, subjects who had been told that they had performed badly
indicated that they would do poorly. Even though they knew that the
feedback they had received was completely bogus, the beliefs they had
formed about their capabilities persisted. In large part, this belief
perseverance resulted from the subjects\' tendency to try to explain to
themselves why they had performed well or poorly. For example, one
subject, told she had done well, stated that she had concluded she was
good at evaluating suicide notes because she enjoyed the poetry of
Sylvia Plath, who had killed herself. Even though the feedback she had
received was discredited, her new beliefs persisted.

In another study of belief perseverance analogous to a courtroom
setting, researchers recruited students to participate in a purported
\"creativity\" assessment. \[FN69\] Unbeknownst to the participants, the
researchers also recruited confederates. The confederates provided
negative information to several of the participants about a teaching
assistant involved in the study. Later, the researchers asked all of the
participants to rate the teaching assistant on a scale from one (least
nice) to ten (nicest). The researchers assigned the participants to four
groups: a control group and three experimental groups (Groups Two,
Three, and Four). Participants in the control group did not receive the
negative information about the teaching assistant and gave her a mean
rating of 9.33 on the researchers\' \"niceness\" scale. \[FN70\]
Participants in Group Two, who heard the negative information about the
teaching assistant, gave her a significantly lower rating of 6.58.
\[FN71\] Participants in Group Three heard the negative information but
were instructed by the confederate to disregard it because \"I probably
shouldn\'t have told you those things.\" \[FN72\] They gave the teaching
assistant a mean rating of 6.71. \[FN73\] Group Four participants heard
the negative information but were instructed by the confederate to
disregard it because \"that wasn\'t the \[teaching assistant\], it was
someone else \[whom I was thinking about\].\" \[FN74\] They gave the
teaching assistant a **\*1269** mean rating of 8.09, still well below
the rating given by the control group participants. \[FN75\]

In this study, the negative information to which the participants were
exposed continued to affect their evaluation of the teaching assistant
even when they were told to forget it. Moreover, the effectiveness of
the instruction to disregard the information was greater when the
confederate discredited the information by explaining that it was
incorrect than when the confederate asked the participants to forget the
information simply because she should not have revealed it to them.
Telling the participants that the information was incorrect did not
neutralize its effect on judgment, however. Subjects who had received
discredited negative information still rated the teaching assistant as
less nice than those subjects in the control group, who were not exposed
to the negative information.

Belief perseverance illustrates a critical impediment to ignoring known
information. Information triggers a cascade of thoughts as part of the
brain\'s effort to construct and to maintain a coherent set of beliefs.
Merely ignoring the information itself is not enough. The inferences
that explain and accommodate the information into an integrated picture
of the world must also be ignored, or the information will affect
decision making indirectly. \[FN76\]

The rapid integration of information into a coherent story that produces
belief perseverance also produces a related phenomenon, the hindsight
bias. The hindsight bias refers to the tendency for the past to seem
more predictable than it actually was. \[FN77\] It occurs largely
because once events unfold, the mind automatically makes inferences
based upon its knowledge of the outcome. When viewed in this light,
antecedent events that are likely to have produced the actual outcome
seem more significant than those that were likely to have produced
different outcomes. Consequently, people think the actual outcome was
more predictable or foreseeable than it was. The hindsight bias is thus
one instance in which people cannot ignore known information. The fact
that the particular outcome occurred cannot easily be ignored, even when
people are asked to do so.

**\*1270** Both contaminated information processing and belief
perseverance have obvious implications for efforts to disregard
inadmissible evidence. Inadmissible evidence presented early in a trial
might affect how juries and judges organize and interpret evidence
presented later, thereby contaminating their decision-making processes.
Inadmissible evidence presented late in a trial might cause juries and
judges to reassess their evaluation of the evidence that preceded it.
Thus, even if a fact finder can avoid using inadmissible evidence
directly, the associations and inferences that flow naturally from that
inadmissible evidence can still affect judgment indirectly.

D. Disregarding Information in a Legal Setting: Mock Jury Studies

Many researchers have investigated whether mock jurors are able to
disregard inadmissible evidence in experiments involving trial-like
settings. With one notable exception, \[FN78\] this work has not
examined judges. Nevertheless, this research could suggest mechanisms
that facilitate or impede judges\' ability to ignore known information.

One of the earliest such experiments asked adults eligible for jury
service to listen to a tape recording of a hypothetical trial in a
negligence case in which the plaintiff had been injured when the car in
which she was a passenger collided with a car driven by the defendant.
\[FN79\] The subjects were divided into three groups of juries. The
three groups reviewed the same trial materials except for variations in
a discussion of the defendant\'s insurance coverage. In all cases,
liability was reasonably clear; in fact, of the thirty mock juries
studied, twenty-eight found for the plaintiff, one jury hung, and one
found for the defendant. \[FN80\] The first group learned that the
defendant had no insurance\--a fact admitted into evidence without
objection. These juries awarded the plaintiff an average of \$33,000.
\[FN81\] The second group learned that the defendant had insurance\--a
fact also admitted into evidence without objection. These juries awarded
the plaintiff an average **\*1271** of \$37,000. \[FN82\] The third
group learned that the defendant had insurance, but it also heard an
objection to that evidence, and was instructed by the judge to disregard
it. The third group of juries awarded the plaintiff an average of
\$46,000. \[FN83\]

This experiment suggests that the rule excluding evidence of a
defendant\'s insurance serves its intended purpose. If juries are
informed that the defendant has insurance, the damage award will tend to
be higher if liability is found. \[FN84\] The second important lesson of
the experiment, however, is less encouraging. An instruction to
disregard such evidence might induce jurors to give the evidence more
weight than they otherwise would. The author of the experiment concluded
that the \"fuss\" made over the defendant\'s insurance emphasized the
fact that the defendant was insured. \[FN85\]

The results of this early experiment were partly confirmed by a more
recent experiment based upon a hypothetical criminal trial. \[FN86\]
Researchers gave college students a summary of a criminal case in which
the defendant was charged with murdering his estranged wife and a male
neighbor. The evidence against the defendant was weak. The researchers
divided the subjects into four groups. The only difference across the
four groups was whether inculpatory statements made by the defendant
during a tape-recorded telephone call to a friend were presented, and if
so, how the judge reacted to the inculpatory statements. The wiretap
evidence was not presented to the first group, and twenty-four percent
of the subjects in that group found the defendant guilty. \[FN87\] The
wiretap evidence was presented to the second group, and was ruled
admissible over the defendant\'s objection. This produced a seventy-nine
percent conviction rate among the subjects in the second group. \[FN88\]
The wiretap evidence was also presented to the **\*1272** third and
fourth groups, both of which were instructed to disregard it, albeit for
different reasons. The third group was told that the defendant\'s
objection was sustained, and that the evidence should be disregarded
because it had been illegally obtained without a warrant. Fifty-five
percent of the subjects in the third group found the defendant guilty.
\[FN89\] The fourth group was told that the objection was sustained, and
the evidence should be disregarded because the audio tape of the
telephone call was so inaudible that it could not be determined what was
said. Twenty-four percent of the subjects in the fourth group found the
defendant guilty. \[FN90\]

Contrary to the results of the previous experiment, this experiment
suggests that inadmissible evidence receives less weight than admissible
evidence. The results are inconsistent with the results in the
experiment based on the hypothetical civil trial, which suggest that
excluding evidence caused it to be valued more highly than did admitting
the same evidence. \[FN91\] On the other hand, this experiment shows a
difference in the effect of excluding evidence depending upon the nature
of the reason given for the exclusion. The subjects in group three were
told that the evidence was inadmissible because it had been illegally
obtained without a warrant. Although the wiretap evidence influenced
them less than it did the subjects in group two, who were told that the
evidence was admissible, the subjects in group three were more
influenced by the wiretap evidence than were the subjects in group four,
who were told that the evidence was inadmissible because it was
unreliable. This study suggests that the reason given for exclusion
matters. Minimizing the influence of the inadmissible information might
require emphasizing the unreliability of the evidence rather than merely
its failure to comply with technical legal standards. This experiment
also suggests that if the reason for exclusion is compelling, an
instruction to disregard the inadmissible evidence allows the decision
maker to behave almost as if she had never been exposed to the
information. \[FN92\]

The divergent outcomes of the numerous other experiments conducted on
the ability of mock jurors to deliberately disregard
inadmissible**\*1273** evidence, however, present a more confusing
picture than these two studies suggest. Some studies replicate the
\"boomerang\" effect found in the early study involving insurance
coverage in a tort case. \[FN93\] Others conclude that instructions to
ignore have no effect. \[FN94\] Others **\*1274** indicate that mock
jurors might have some ability to ignore inadmissible information.
\[FN95\] Still others indicate that mock jurors can completely ignore
information deemed inadmissible. \[FN96\] Finally, some even **\*1275**
show that mock jurors overcompensate in reaction to inadmissible
evidence; that is, those exposed to the inadmissible information and
told to disregard it make decisions that are even more favorable to the
party that requested the instruction to disregard than the subjects who
were not exposed to the inadmissible information. \[FN97\]

Even the mechanisms that might underlie these effects are in dispute.
Some studies suggest that providing a reason why the evidence is
inadmissible is helpful, \[FN98\] while others reveal this to be
useless. \[FN99\] Similarly, some indicate that deliberation enhances
the effectiveness of instructions to ignore, \[FN100\] but others
suggest that deliberations make things worse. \[FN101\]

Can any generalizations be safely made? First, when people attempt to
ignore inadmissible information of which they are aware in making
decisions or arriving at judgments about other people, they frequently
will be unsuccessful. \[FN102\] Second, such attempts are more
**\*1276** likely to be successful (a) if the inadmissible information
is not needed to arrive at a sound decision; \[FN103\] (b) if the
inadmissible information is not highly salient or emotionally charged;
\[FN104\] (c) if the decision maker is not simultaneously subjected to
heavy extraneous cognitive load; \[FN105\] or, most importantly, (d) if
the credibility of the inadmissible information sought to be ignored is
destroyed or at least called into question. \[FN106\] Finally,
attempting to ignore inadmissible information might backfire or rebound,
with the paradoxical result that the inadmissible information becomes
more influential than it would have been in the absence of such an
attempt. \[FN107\]

**\*1277** II. The Study

A. Introduction

Previous studies shed light on juror decision making, but what about
judges? Without denigrating the important role that jurors play in the
legal system, we have argued previously that \"judges are much more
important than juries.\" \[FN108\] After all, about one-third of all
civil trials are bench trials, \[FN109\] and judges \"determine the
outcome of roughly seven times as many cases as juries by ruling on
dispositive motions, and they often play an active role in settling
cases. Even in those cases that juries decide, judges preside.\"
\[FN110\]

For several reasons, judges might be better able than jurors to
disregard inadmissible information. Judges are generally better educated
than jurors, and thus might have superior abilities to perform this
difficult cognitive task. Moreover, judges have legal training that
probably makes them more likely than jurors to appreciate the purpose,
importance, and desirability of the exclusionary rules. For judges,
exclusionary rules are also apt to present a less jarring infringement
on sensible decision making. Finally, judges have substantial experience
making legal decisions. Judges might thus be better able to
compartmentalize admissible evidence from inadmissible evidence and to
limit their decisions to the contents of the formal record. \[FN111\]

**\*1278** On the other hand, judges might not perform better than
jurors\--and might even perform worse\--for several reasons. Judges are
likely to be exposed to significantly more inadmissible information than
jurors, in particular, information that jurors never hear or see.
Additionally, judges might be confident that they can disregard
inadmissible information. \[FN112\] Because of this, they may be
disinclined to undertake the extra effort necessary to avoid coming into
contact with inadmissible evidence and are therefore particularly
susceptible to \"mental contamination.\" \[FN113\] Finally, most trial
judges act alone. Often, they have little, if any, opportunity for group
deliberation with their peers. This kind of deliberation is the hallmark
of the jury decision-making process, and though the evidence is mixed,
some studies do suggest that deliberations can improve jurors\' ability
to disregard inadmissible information. \[FN114\] Thus, even if judges
perform as well as or better than jurors, they may not perform as well
as juries. \[FN115\]

We set out to assess these competing claims empirically. Despite the
dozens of prior studies on mock jurors, the ability of judges to
disregard inadmissible evidence has been assessed in only one prior
experimental study. \[FN116\] This study showed that judges were unable
to disregard evidence that a tort defendant had undertaken subsequent
remedial measures, even when told that the previously assigned judge had
ruled the evidence of those measures inadmissible. The authors also
found that the influence of the inadmissible evidence on judges
**\*1279** was comparable to its effect on a group of jury-eligible
adults. \[FN117\] While suggestive, the study presented only a single
type of inadmissible evidence. Furthermore, to facilitate the comparison
between lay persons and judges, the authors did not have the judges
actually rule the evidence inadmissible. Normally, judges make their own
rulings as to admissibility. Given the role that psychological reactance
is thought to play in the evaluation of inadmissible evidence, \[FN118\]
this could have exaggerated the influence of the inadmissible evidence
on judges. Hence, like that study\'s authors, we regard it as helpful,
but preliminary. We undertook a more detailed assessment.

B. The Participating Judges

We recruited a total of 265 sitting judges attending five judicial
education conferences to participate in our study: 105 state trial court
judges from Maricopa County, Arizona, \[FN119\] 62 federal magistrate
judges **\*1280** attending national workshops in either San Diego or
Minneapolis, \[FN120\] 26 federal district judges attending a national
workshop in Philadelphia, and 71 trial court judges from a large urban
trial court. \[FN121\]

The judges in our sample share important characteristics. All of the
judges participating in this study were appointed, and all function
essentially as trial court judges who manage cases, facilitate
settlement, hear motions, and preside over trials. The principal
difference among the judges is that the federal magistrates conduct
trials only in civil cases and misdemeanor criminal cases, and focus
most of their attention on pretrial matters, while the federal district
judges and the judges from Maricopa County and the urban jurisdiction
are responsible collectively for a slightly broader range of civil and
criminal matters.

**\*1281** We did not ask the judges to identify themselves by name, but
we did ask them to identify their gender and number of years of
experience on the bench. \[FN122\] Overall, approximately one-third of
the judges in our sample are women (30.6% in San Diego, 24.0% in
Minneapolis, 21.6% in Maricopa County, 14.8% among the federal district
judges, and 44.2% in the urban jurisdiction). The judges also have a
great deal of judicial experience. On average, the federal magistrate
judges attending the San Diego conference had 9.2 years of experience at
the time of the conference, the magistrate judges in Minneapolis had
14.2 years of experience, the Maricopa County judges had 7.2 years of
experience, the federal district judges had 11.2 years of experience as
federal district judges (13.5 years of judicial experience in total,
including the prior experience of the 6 judges who reported that they
had served as state judges before their appointment to the federal
bench), and the urban jurisdiction judges had 9.2 years of experience on
the bench.

C. The Procedure

We collected the data reported in this study at five different judicial
educational conferences: two for federal magistrate judges, one for
federal district judges, and one each for the Maricopa County and urban
jurisdiction judges. The Federal Judicial Center (FJC) hosted the
conference for federal district judges in Philadelphia in April 2004 and
the two conferences for federal magistrate judges, one in San Diego in
April 2002 and another in Minneapolis in June 2002. \[FN123\] At these
three conferences, we presented an optional program on the \"Psychology
of Judging,\" which 36 judges in San Diego, 26 judges in Minneapolis,
and 28 judges in Philadelphia elected to attend.

We collected data from the Maricopa County judges and the judges from
the urban jurisdiction at their respective annual continuing education
conferences. At both of these conferences, the three of us presented a
program on the \"Psychology of Judging.\" The great majority of the
judges in each of these jurisdictions attended these conferences.
Further, these two conferences did not include any optional **\*1282**
sessions, so the judges did not self-select to attend our programs. In
the case of the urban jurisdiction, all but a few of the judges in the
jurisdiction attended the conference and participated in our study (the
educational conference was described as mandatory by the chief judge of
this jurisdiction). In the case of Maricopa County, 85% of the county\'s
superior court judges and 68% of the county\'s commissioners
participated. \[FN124\]

At all of the conferences, we employed similar methods. We distributed
our questionnaires to the judges in person prior to our presentation. We
asked the judges to read and respond to each of the questions and to do
so independently. At all five conferences, the judges appeared to take
the questionnaires seriously. The rooms were silent during the
administration of the questionnaires.

Because we did not ask the judges to identify themselves, all responses
were anonymous. We also informed the judges that participation in the
survey was entirely voluntary. \[FN125\] The final page of the
questionnaires gave the judges the opportunity to limit the use of their
answers to discussion during their particular conference, thereby
excluding them from discussion in other contexts and from use in any
publication. One magistrate judge in San Diego, one magistrate judge in
Minneapolis, one federal district judge, and two judges in the urban
jurisdiction exercised this option. The questionnaires completed by
judges who exercised this option are not included in our analysis.

D. The Materials

We gave each participating judge a questionnaire that included between
four and seven scenarios, only some of which dealt with the **\*1283**
subject of this Article. \[FN126\] The judges evaluated scenarios
designed to assess their ability to disregard the following types of
inadmissible evidence: \[FN127\]

1\) settlement demands made during a pretrial conference;

2\) information protected by the attorney-client privilege and reviewed
in camera by the judge;

3\) inadmissible sexual history in a criminal case involving an alleged
sexual assault;

4\) a presumptively inadmissible criminal record in a civil case;

5\) information obtained by the prosecution from a criminal defendant
which the government had agreed not to use at sentencing under a
\"cooperation agreement\";

6\) the outcome of a search involving a probable cause determination;
and

7\) a criminal confession obtained during an interrogation conducted
after the defendant had invoked his right to counsel.

To assess the judges\' ability to disregard this information, we used a
\"between groups\" or \"between subjects\" experimental design.
\[FN128\] That is, we created two versions of each scenario, a
\"control\" version and one or more \"suppression\" versions. In the
control version, we **\*1284** provided a description of the scenario
and then asked the judge to make a substantive ruling (i.e., civil
liability, criminal liability, or damages). In the suppression version,
we provided the same description of the scenario, but we added
inadmissible information for the judge to review before we asked the
judge to make the very same substantive ruling. We then compared the
rulings made by the judges in the control version of each scenario to
the suppression version(s). Because the only thing we varied between the
control and suppression conditions was the presence of the inadmissible
information\--that is, because we controlled for all other factors that
might influence the judges\' decision making\--we can attribute any
differences in the rulings between the groups to the presence of that
information. \[FN129\] In other words, the inadmissible information is
our \"independent variable\" \[FN130\] and the substantive decision is
our \"dependent variable.\" \[FN131\]

**\*1285** Table 1 identifies the scenarios that each group of judges
received:

Table 1: Distribution of the Seven Scenarios \[FN132\]

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Scenario

Group Settlement A-C Sexual Prior

Privilege History Conviction

Fed. Mag. Judges: San Diego Low All

Fed. Mag. Judges: Minneapolis High All

Maricopa County High/Half Half All, All

Version

2

Fed. Dist. Judges

Urban Jurisdiction Low All,

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Co-op Search Crim.

Agreement Outcome Confession

All,

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All

All

All,

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77\...\...+\...90\....+\....0\....+\...10

**\*1286** III. The Results

A. Anchoring and Settlement Talks

Our first scenario explores whether judges who encounter inadmissible
information during a pretrial settlement conference are able to
disregard it at trial. Both the Federal Rules of Evidence \[FN133\] and
state evidence rules or codes \[FN134\] prohibit the introduction of
\"conduct or statements made in compromise negotiations\" into evidence
at trial. \[FN135\] The rules exclude this information primarily for
extrinsic reasons, namely \"to foster \'complete candor\' between
parties\" \[FN136\] and thereby facilitate settlement. \[FN137\]

We sought to determine whether judges who encounter inadmissible
information during a settlement conference might nonetheless be
influenced by it when ruling at trial. In particular, judges might be
influenced by the offers or demands parties make during settlement talks
due to a phenomenon called \"anchoring.\" \[FN138\]

Anchoring operates in the following way. When people estimate an
uncertain numeric value, they commonly rely on any numeric **\*1287**
value that happens to be available to them. \[FN139\] The initial value
provides a starting point that \"anchors\" the estimation process.
\[FN140\] Across dozens of studies, psychologists have found that the
adjustment from the anchor is inadequate, thereby giving the anchor
greater influence on the estimated numerical value than it should have.
\[FN141\] Even irrelevant or ridiculous anchors that bear no
relationship to the actual numerical value can influence estimates.
\[FN142\]

Legal scholars have expressed concerns about anchoring in the legal
system. \[FN143\] In particular, scholars have worried about the
pernicious effects that anchors might have on civil damage awards,
especially \"pain and suffering\" damages and punitive damages. Indeed,
several studies have demonstrated that plaintiffs\' requests for
damages\--even absurdly high requests \[FN144\]\-- influence the amounts
that mock jurors award. \[FN145\]

Some scholars have argued that the influence of anchors calls for an
expansion of the judicial role\--and concomitant contraction of the
jury\'s role\--in the damage assessment process. \[FN146\] Such claims,
of course, assume that judges are largely immune from the effects of
anchors. **\*1288** Our prior research on judges makes us skeptical
about this assumption. \[FN147\]

1\. Anchoring and Settlement Talks: The Scenario

To assess whether judges might be influenced by anchors supplied in
settlement conferences, we created a scenario entitled \"Assessment of
Damages.\" \[FN148\] In this scenario, the participating judges
\[FN149\] learn that they are presiding in a bench trial involving a
suit arising from an automobile accident. The plaintiff is a 31-year-old
high school teacher who lost his right arm after he was hit by a truck
driven by one of the defendant\'s employees. Since the accident, the
plaintiff has had problems at work; additionally, he can no longer play
recreational softball or even play catch with his son. He also endured a
great deal of pain. The defendant, a large package-delivery company,
admits fault but disputes the extent of plaintiff\'s damages.

The materials state that at the request of the parties, the judges
agreed to preside over a settlement conference on the eve of trial. At
the conference, plaintiff\'s counsel informed the judges that the
plaintiff was eager to recover monetary damages from the defendant.
Judges assigned to the control conditions did not receive a specific
dollar request from plaintiff\'s counsel, \[FN150\] while judges
assigned to the two suppression conditions learn that the plaintiff had
demanded either **\*1289** \$175,000 (low-anchor version) or
\$10,000,000 (high-anchor version) to settle the case.

The materials state that the settlement conference was unsuccessful, and
so the case proceeded to trial. The materials reminded the judges that
\"\[t\]he settlement discussions are, of course, not admissible evidence
at trial under Rule \_\_\_ of the \_\_\_ Rules of Evidence.\" \[FN151\]
Nonetheless, the settlement demands disclosed in settlement might
impermissibly anchor the judges\' determinations of pain and suffering
damages.

2\. Anchoring and Settlement Talks: Results

Tables 2 and 3, below, present the results for this scenario. Both the
low anchor (\$175,000) and the high anchor (\$10,000,000) had a
significant impact on the pain and suffering damages awarded by the
judges. As each table demonstrates, the results were not the product of
a few extremely low or extremely high awards in the suppression
conditions; rather, the anchors shifted the whole distribution of awards
downwards (in the case of the low anchor) or upwards (in the case of the
high anchor).

The judges assigned to the low-anchor condition gave the plaintiff a
mean award of \$612,000, while the judges assigned to the matched
control condition awarded nearly \$1,400,000 on average. Thus, the
judges in the low-anchor condition gave the plaintiff a mean award less
than half the size of the mean award given by the judges in the control
condition. The difference between these two groups was significant,
\[FN152\] using both a parametric and a more appropriate nonparametric
test. \[FN153\]

**\*1290** Table 2: Low-Anchor Study: Means and Quartile Results (in
\$1000s)

Condition (and n) Mean 1st Quartile Median 3d Quartile

Low Anchor (53) 612 250 500 750

Control-Low Anchor (47) 1396 366 600 1500

The judges assigned to the high-anchor condition awarded over
\$2,200,000 on average, while judges assigned to the matched control
condition awarded \$808,000 on average. Thus, the judges in the
high-anchor condition gave the plaintiff a mean award almost three times
the size of the award given by the judges in the control condition. The
difference between these two groups is also significant, using both
parametric and non-parametric tests. \[FN154\]

Table 3: High-Anchor Study: Means and Quartile Results (in \$1000s)

Condition (and n) Mean 1st Quartile Median 3d Quartile

Control-High Anchor (37) 808 325 700 1000

High Anchor (38) 2210 575 1000 3000

We also attempted to assess the effects of gender, court (i.e., court on
which the judge sits), and experience on the awards. To do so, we
transformed the raw data to create a normal distribution and then
performed our analyses on the log-transformed data. For both the
low-anchor and high-anchor studies, we regressed the award on condition,
gender, court, and an interaction term of condition with gender, type,
and experience. We found no significant main effects or interactions for
gender or for court in either the low- or high-anchor scenarios. In the
high-anchor condition, we observed a trend for female judges to be less
affected by the anchor, although this trend was not significant.
\[FN155\] We also found that, among judges in the two conditions
**\*1291** testing for the effect of low anchors, more experienced
judges tended to award less. \[FN156\] This effect did not interact
significantly with condition. \[FN157\] We did not observe any effect of
experience on awards in the two conditions testing for the effects of
high anchors.

A comparison of Tables 2 and 3 suggests an unexpected trend for the
judges in the \"no anchor\" conditions in each study to have provided
different results. Even though the scenarios were identical, judges in
the \"no anchor\" condition in the low-anchor study provided a mean
award of \$1.396 million, whereas judges in the \"no anchor\" condition
in the high-anchor study provided a mean award of \$808,000. This
apparent difference was not reliable, however. \[FN158\]

3\. Anchoring and Settlement Talks: Discussion

The anchors appear to have influenced the judges\' assessments of the
appropriate amount of damages to award. Relative to the judges assigned
to the control conditions, the high-anchor judges gave substantially
higher awards and the low-anchor judges gave substantially lower awards.

The anchors provided in this study\--in contrast to the anchors that
psychologists typically provide in their studies of anchoring\--are at
least arguably relevant to the judges\' assessment of damages. The
plaintiff\'s lawyer disclosed valuable information to the judges about
his client\'s sense of entitlement. \[FN159\] Counsel may have made this
disclosure for strategic reasons, of course, but the disclosure was
presumably grounded in some perceived reality and hence is correlated
with the harm his client believes he has suffered. Despite the anchor\'s
conceivable relevance, however, the applicable evidentiary rules require
**\*1292** the judges to disregard it. The materials explicitly reminded
the judges of this rule. \[FN160\]

Nonetheless, the inadmissible information disclosed in the settlement
talks appears to have influenced the judges exposed to it. Surreptitious
reliance (even if it was unintentional) on information elicited during
the settlement conference undermines the goals of Rule 408 and other
rules like it. These prohibitions are designed to encourage parties to
be open and candid; but to the extent the parties fear that their
discussions will be used against them later, they are more likely to
behave strategically in settlement talks and reach a bargaining impasse.

This study obviously has its limits. Anchoring may be a uniquely
powerful phenomenon; if so, other disclosures made during settlement
conferences might have a lesser impact on judges. Moreover, judges in
actual cases would have much more information about the parties and
their dispute, so even if anchors are powerful, the effects of anchors
might be muted. Nevertheless, there are reasons to believe that the
results of this study are generalizable to the real world. The damages
demanded by a plaintiff are uniquely salient, so even under
circumstances where judges learn substantially more information about
the parties or are supplied with alternative anchors, judges are likely
to have difficulty disregarding this particular information. \[FN161\]
Moreover, judges, like other decision makers, are most likely to rely on
cognitive shortcuts, such as anchoring, when they face time constraints
that force them to process complex information quickly. Although judges
certainly face time pressure in the courtroom, judges also can delay
their decisions in some circumstances so as to allow themselves more
time to think. As with all of our results, the data suggest potential
obstacles to good decision making, more so than providing definitive
evidence of poor decision making.

These results impart some lessons for litigants engaged in settlement
talks in front of a judge. Despite the protection of evidentiary
restrictions, settlement discussions might affect how a judge thinks
about a case. This suggests that parties should be cautious about their
discussions, or that they should be strategic. A judge can facilitate
the **\*1293** candor that might be essential to settlement only by
declining to sit as the presiding judge should the case fail to settle.

These results underscore the importance of judicial recusal and
disqualification in maintaining the integrity of the legal system.
Judges who learn important facts, from the settlement process or from
pretrial rulings, should consider the potential influence of this
information, especially in a bench trial or while ruling on dispositive
motions. Although our work shows that judges sometimes display a
remarkable ability to ignore inadmissible evidence, judges might not be
able to discern which evidence they can reliably ignore. \[FN162\] By
and large, the rules governing recusal and disqualification are generous
in facilitating judicial removal when even the appearance of impropriety
exists. \[FN163\]

Pockets of law are not so solicitous of this concern, however. Notably,
Justices on the United States Supreme Court commonly argue that they
have a \"duty to sit\" on a case that overrides ordinary concerns of
impropriety or bias. \[FN164\] Similarly, decision makers in
administrative agencies similarly cannot be disqualified from decisions
absent a showing by clear and convincing evidence that they have an
\"unalterably closed mind.\" \[FN165\] Our results suggest either that
the law needs to be more vigorous in prescribing disqualification in
these areas, or that judges should be receptive to recusing themselves,
and perhaps even recuse themselves when they do not sense the influence
of extraneous evidence.

**\*1294** B. Attorney-Client Privilege

Our second scenario explores the question of whether judges can ignore
highly relevant information protected by the attorney-client privilege.
\[FN166\] The attorney-client privilege is premised on the assumption
that clients will disclose critical information to their attorneys only
if they know that such disclosures will not come back to haunt them.
\[FN167\] Because obtaining proper legal advice requires that clients be
able to relate this information to their attorneys, the privilege is
central to the administration of justice. \[FN168\]

Nonetheless, we anticipated that the judges might have trouble
disregarding privileged information relevant to the merits of the case.
In particular, privileged information revealing that a client knows that
she is guilty or that she should lose a civil case might be especially
difficult to disregard. Such information not only reveals the weaknesses
in the litigant\'s case, but also undermines her credibility and
suggests that she might be abusing the justice system. It might be
difficult to disregard such information.

1\. Attorney-Client Privilege: The Scenario

To assess whether judges are able to ignore disclosures protected by the
attorney-client privilege, we created and administered a scenario
entitled \"Evaluation of a Contract Dispute.\" \[FN169\] In this
scenario, the participating judges \[FN170\] learn that they are
presiding over a bench trial involving a contract dispute between a
freelance consultant named Jones and a movie studio called SmithFilms.

The judges learn that the outcome of the dispute will turn on whether
they find that the studio offered Jones \"producer credit\" **\*1295**
when it retained him to work on a movie. The only writing in the case
consists of a short letter, signed both by Jones and the studio\'s owner
(Smith), stating that \"Jones will provide various services to
SmithFilms, that Jones will continue to be paid a monthly salary as an
independent contractor until the film is released, and that Jones will
receive such other consideration as was agreed upon by the parties
during the pre-signing breakfast.\" \[FN171\] Jones contends that Smith
offered him producer credit as part of the package, and he presents
testimony from a waitress who stated that she thought she overheard the
parties discussing producer credit at their breakfast meeting.
Unfortunately, Smith has fallen ill and is in a coma, so the movie
studio\'s only viable defense is to argue that Smith generally did not
offer such credit.

In addition to learning this information, the judges assigned to the
suppression group were told that before they decided the merits, they
must resolve a discovery dispute. The materials state that the defendant
filed a motion to compel production of an audiotaped conversation
between Jones and his business attorney (not the attorney representing
him in this litigation). \[FN172\] The plaintiff argues that the
conversation is protected by the attorney-client privilege, but the
defendant contends that Jones was seeking business advice, not legal
advice, from this attorney. \[FN173\]

The materials state that the \"parties requested that you listen to the
audiotape in camera,\" \[FN174\] including the following excerpt from
the conversation:

Jones: I really needed this deal and I was afraid that asking for
producer credit might be a turn-off, so I got nervous and did not ask
for it. But I meant to. I need your legal opinion, Greg. Suppose that I
send Smith a letter now saying that I meant for producer credit to be
part of the deal. Would that be legally binding?

Gonzalez: No. If you and Smith did not agree on producer credit during
breakfast, you don\'t have a leg to stand on. A letter now won\'t help.

Jones: Darn. That\'s a shame. \[FN175\] **\*1296** The judges learn that
\"\[t\]he rest of the audiotape confirms that Gonzalez was functioning
solely in a legal capacity.\" \[FN176\] The judges are then asked to
\"rule on a motion to compel production of the audiotape.\" \[FN177\]

Thereafter, the materials return to the same script as in the control
condition. Ultimately, the judges in both conditions are asked to
indicate whether they would rule for Jones (the plaintiff) or SmithFilms
(the defendant) in this contract dispute.

2\. Attorney-Client Privilege: The Results

The information protected by the attorney-client privilege had an impact
on the judges\' resolution of the merits. In the control condition,
55.6% (25 out of 45) of the judges found for the plaintiff. The judges
in the suppression condition were less hospitable to the plaintiff\'s
claim. Among those who ruled that the audiotape was privileged, only
29.2% (7 out of 24) found for the plaintiff. The difference between the
responses of the judges in these two groups was statistically
significant. \[FN178\]

A substantial percentage of the judges (33.3%, or 12 out of 36) granted
the motion to compel production of the audiotape. Among these judges,
25% (3 out of 12) found for the plaintiff. This percentage did not
differ significantly from the percentage of judges who had suppressed
the audiotape (29.2%). \[FN179\]

We also conducted additional analyses of demographic variables. Using
logistic regression on the verdict, we found no significant main effects
of gender or experience, or of the interaction of these two variables
with condition. We did, however, uncover a main effect for court. In
Maricopa County, 31.6% of the judges (12 out of 38) found for the
plaintiff, whereas 64.5% (20 out of 31) of the federal magistrate judges
found for the plaintiff. \[FN180\] This effect did not interact with
condition.

**\*1297** 3. Attorney-Client Privilege: Discussion

Exposure to the privileged information appears to have influenced the
judges\' decisions. Although a majority of the judges who had not seen
the privileged materials ruled in favor of the plaintiff, fewer than 30%
of the judges who determined the materials were privileged ruled the
same way. Even though the judges themselves ruled that the information
was privileged, and therefore immune from discovery, this information
appears to have had a substantial impact on their assessments of civil
liability.

The results of this study comport with the intuitions of at least some
of the judges in our study who wrote on the questionnaire that they
would recuse themselves in this situation. One judge even added a line
next to our available answers, wrote \"recuse self\" with an open box
next to it, and then checked the box! Although admittedly anecdotal,
these responses suggest that at least some of the judges recognized that
they would have a difficult time ignoring the privileged information at
trial.

It is worth noting that a third of the judges in the suppression
condition granted the motion to compel production, even though the
conversation is probably best construed as privileged. One could argue
that the crime-fraud exception to attorney-client privilege applies.
\[FN181\] That is, if the plaintiff had hired his business attorney for
the purpose of perpetrating a fraud, then his conversation would not be
privileged. But the context of the conversation suggests that the
plaintiff consulted his business attorney for purposes of obtaining
legal advice, not for purposes of committing a fraud.

At the same time, it is likely that the plaintiff\'s litigation attorney
would have reviewed the audiotape. Hence, the plaintiff\'s attorney is
arguably pursuing a lawsuit that she knows lacks merit. This might give
rise to an ethics violation if the plaintiff\'s attorney does not
attempt to withdraw. \[FN182\] Neither the rules against frivolous
litigation nor the ethics rules, however, create an exception to the
attorney-client privilege in this circumstance. \[FN183\] Once the judge
determines that the **\*1298** conversation is protected by the
privilege, the in camera review ends, and the judge can make no further
use of the materials. Furthermore, the fact that one-quarter of the
twelve judges who ordered the production of the audiotape also ruled in
favor of the plaintiff suggests that the tape is not dispositive and the
suit is not wholly frivolous.

Even though the results of this scenario suggest that the judges\'
ability to ignore materials they deem privileged will be limited, this
scenario has limitations of its own. For instance, judges in actual
cases might be better able to disregard this information because they
would have learned many more details about the case. Judges in our study
who were exposed to the inadmissible evidence about the plaintiff might
have inferred that the rest of the plaintiff\'s case was also quite
weak. On the other hand, the privileged information in our materials
constitutes the single best piece of evidence available in the
case\--that is, an admission by plaintiff that he has no case. Extra
detail in a real case would be unlikely to undermine the importance of
this admission.

Judges might also perform better in actual cases than they did in our
study because their motivation to limit their decision to the record
would be greater in a real case than in a hypothetical one. Increased
motivation might cut both ways, however. On the one hand, a judge has
more incentive in the real world to follow the evidence rules and ignore
inadmissible information; on the other hand, a judge also has more
incentive in the real world to thwart the kind of frivolous claim the
plaintiff is advancing and to reach a just outcome on the merits.

C. Rape-Shield Case

Our third scenario explores whether judges can disregard the sexual
history of the alleged victim of a sexual assault. The admissibility of
a victim\'s sexual history in sexual assault cases has been the subject
of debate and legal reform for some time. \[FN184\] The prospect of
cross-examination by a hostile attorney delving into one\'s sexual past
can deter the victim of a sexual assault from pursuing a case against a
**\*1299** perpetrator. \[FN185\] Furthermore, a victim\'s sexual
history frequently is of questionable relevance. Arguably, any effect
such testimony has arises merely from stereotypes.

On the other hand, one cannot entirely rule out the relevance of sexual
history in a case involving a dispute over consent. To some, a history
of sexual promiscuity suggests that a sexual encounter is more likely to
be consensual. One could argue exactly the opposite, however. After
lodging a complaint in a sexual assault case, a sexually experienced
woman might be more credible, having had a history of sexual encounters
in which she did not make such allegations. The former view appears to
be more common. \[FN186\]

In the face of these concerns, many jurisdictions have adopted so-called
\"rape-shield\" statutes to limit the admissibility of sexual history
evidence. \[FN187\] The relevant rape-shield provision in this
instance\--Arizona\'s \[FN188\]\--differs somewhat from the norm.
Arizona\'s statute specifically prohibits the introduction of evidence
of an alleged victim\'s chastity, rather than evidence of her sexual
history. Arizona\'s statute takes this curious approach because the
state has long barred evidence of a victim\'s sexual history through the
common law. \[FN189\] Arizona adopted its statute in light of this
history, and it is intended to extend the rape-shield prohibition from
sexual history evidence often proffered by a defendant to demonstrate
consent to chastity evidence sometimes proffered by a prosecutor to
demonstrate lack of consent. Courts now construe the statute to prohibit
both kinds of evidence. \[FN190\]

**\*1300** Prior studies of mock jurors suggest that they have
difficulty disregarding inadmissible information about the sexual
history of an alleged sexual assault victim. \[FN191\] Generally, mock
jurors are less likely to convict the defendant and are more likely to
attribute greater responsibility for the events to the victim. \[FN192\]
Despite significant differences between a typical mock juror and a
typical judge, judges, like mock jurors, might be hard pressed to ignore
this evidence, even if they deem it inadmissible at trial.

1\. Rape-Shield Case: The Scenario

To assess whether judges might be influenced by inadmissible sexual
history evidence, we created and administered a scenario entitled
\"Evaluation of a Criminal Case.\" \[FN193\] In this scenario, the
participating judges \[FN194\] learn that they are presiding in a bench
trial involving a sexual assault allegedly committed by Mr. Geiger
against Ms. Smith.

Both the complainant and defendant are students at a local university
who were attending a fraternity party on the night in question. The
complainant, who had recently become engaged, began drinking heavily at
the party and was seen talking with the defendant, whom she had not
previously met. At some point, the defendant \"seemed to help \[her\]
\'walk\' or \'stagger\' into \[his\] room\" at the fraternity house.
\[FN195\] The complainant\'s fiance began looking for her, eventually
found her in the defendant\'s room, and \"discovered \[the defendant\]
on top of \[her\]; her skirt was pulled up over her waist.\" \[FN196\]
The fiance \"pulled Mr. Geiger off of Ms. Smith, threw him onto the
floor, and then stormed off. Ms. Smith got up and ran after him.\"
\[FN197\]

**\*1301** Ms. Smith reported the alleged assault to the police two
hours later. She asserted that she had refused to have sex with the
defendant and had shouted \"no\" a couple of times, but that he had
forced himself on her. The police officer who interviewed her reported
that she was visibly upset while telling the story; moreover, \"\[a\]
physical examination revealed bruises on her upper thighs.\" \[FN198\]
Her fiance initially thought the encounter was consensual, but he
subsequently changed his mind. Before the incident, the complainant had
been cheerful and extroverted, but since the incident occurred, she had
become moody and depressed. The defendant testified on his own behalf,
asserting that the encounter had been consensual. He contended that
although he had previously had casual sex with other women at parties,
he had never engaged in nonconsensual sex with anyone.

In addition to learning this information, the judges assigned to the
suppression condition learn that the defendant wants to present evidence
of the victim\'s sexual history:

In his defense, Mr. Geiger is trying to introduce testimony from five
other students, 3 male and 2 female, that Ms. Smith had a well-deserved
reputation for being sexually promiscuous. This includes one of Ms.
Smith\'s best friends who will testify that before Ms. Smith met her
fiance, she \"had trouble remembering what fraternity house she woke up
in each Sunday morning.\" Another witness, a former roommate of Ms.
Smith will assert that Ms. Smith \"liked to loosen her inhibitions with
a few beers too many and then have rough sex with the first guy she
saw.\" \[FN199\] The judges also learn that \"the prosecution has moved
to exclude such evidence on the ground that it violates Arizona\'s
\'Rape Shield\' statute . . . which forbids the introduction of evidence
concerning a victim\'s \'chastity\' or \'reputation for chastity\' in
cases involving sexual assault.\" \[FN200\] The materials then ask the
judges in the suppression condition how they would rule on this motion
to suppress the evidence. Finally, the judges assigned to both the
control group and the suppression group are asked to indicate whether
they would find the defendant guilty of sexual assault. \[FN201\]

**\*1302** 2. Rape-Shield Case: The Results

The judges struggled with this case. In the control condition, 49.1% (27
out of 55) of the judges found the defendant guilty. The judges in the
suppression condition were much more likely to find the defendant not
guilty. Among the judges in the suppression group who ruled that the
sexual history evidence should be excluded, a mere 20% (7 out of 35)
convicted the defendant. The difference between these two groups was
statistically significant. \[FN202\]

Some of the judges (27.1%, or 13 out of 48) decided to admit the
evidence. Among these judges, 7.7% (1 out of 13) convicted the
defendant. The percentage of guilty verdicts in this group did not
differ significantly from that among the judges who suppressed the
evidence (20.0%). \[FN203\]

Further analysis, using logistic regression on the verdict with gender,
experience, and the interaction of these two variables with condition as
independent variables, revealed no significant main effects of
experience or the interaction of experience with condition. The gender
of the judges produced an effect that was marginally significant.
\[FN204\] Specifically, across the two conditions, female judges were
more likely to convict (48.2%, or 13 out of 27) than male judges (31.7%,
or 19 out of 60). This effect did not interact significantly with
condition. The conviction rates among both male and female judges who
had suppressed the past sexual history were identical (20.0%), although
the conviction rate among female judges in the control condition was
higher than among male judges (64.7%, 11 out of 17, versus 40%, 14 out
of 35).

**\*1303** 3. Rape-Shield Case: Discussion

Exposure to the victim\'s sexual history appears to have influenced the
judges\' decisions. The conviction rate dropped by nearly 30% among
judges who had excluded the evidence compared to judges who were not
exposed to the evidence. Even though the judges ruled the evidence
inadmissible, it still influenced their assessments of the defendant\'s
guilt.

Although most of the judges decided that the evidence of the victim\'s
sexual history was inadmissible, some decided to admit it. One judge
later remarked that he admitted the testimony precisely because it
seemed so relevant, so perhaps the judges who admitted the testimony
differed from the judges who excluded it in that they believed the
testimony was more probative than their colleagues who sustained the
objection. Regardless, there is no statistically significant difference
between the verdicts rendered by the judges who admitted the evidence
and the judges who excluded it (although the numbers are small). Once
exposed to the evidence, they were affected by it\--regardless of their
view of admissibility.

These materials present one important difference from most cases of
sexual assault that might limit the generality of the findings. The
sexual history evidence matched the circumstances of the sexual
encounter closely. The victim\'s history is not merely one of sexual
experience, but one of intoxication, and casual, \"rough\" sex of
precisely the type that would explain how this encounter might have been
consensual. It is possible that the judges might have reacted
differently to our scenario if the victim\'s sexual history had been
more mundane and less similar to the alleged crime at issue in the case.

Nonetheless, the results suggest that ignoring a victim\'s sexual
history can be challenging, especially if the decision maker believes it
to be relevant to the issue of consent. The rape-shield statutes thus
might serve the purpose of keeping a victim\'s private life private, but
the evidence they ostensibly protect might still influence those fact
finders who learn of it before or during trial. \[FN205\]

**\*1304** D. Prior Criminal Conviction

Our fourth scenario explores whether judges can disregard a prior
criminal conviction that is presumptively inadmissible under the rules
of evidence. Rule 609 of both the Federal Rules and the Arizona Rules of
Evidence imposes various limits on the admissibility of prior criminal
convictions. \[FN206\] Where more than ten years have elapsed since the
completion of a sentence resulting from a conviction, the evidence of
the conviction is inadmissible unless \"the probative value of the
conviction \[is\] supported by specific facts and circumstances \[and\]
substantially outweighs its prejudicial effect.\" \[FN207\] This \"time
limit\" rule is an intrinsic exclusionary rule that limits the
admissibility of the prior criminal conviction on the grounds that it
might prejudice the fact finder. \[FN208\]

As with many of the rules that limit admissibility on the grounds that
evidence is prejudicial, the rules governing prior criminal convictions
rest on an empirical assumption about the effect of admitting such
evidence. Rule 609 assumes that a witness\'s criminal past will lead
juries to make inappropriate decisions motivated by animus toward an
individual who has committed mistakes in the distant past. \[FN209\]
**\*1305** Perhaps judges, who have experience weighing evidence, might
be better able than jurors to disregard such potentially prejudicial
information.

1\. Prior Criminal Conviction: The Scenario

To assess whether judges might be influenced by evidence of a prior
criminal conviction, we created and administered a scenario entitled
\"Assessment of Pain and Suffering Damages.\" \[FN210\] In this
scenario, the participating judges \[FN211\] are told that they are
presiding in a bench trial in which the only issue is the appropriate
damage award for pain and suffering.

The judges learn that the case involves a products liability suit filed
by an individual plaintiff against a lawnmower manufacturer (for the
judges in Arizona) or a snowblower manufacturer (for the judges in
Minnesota). The plaintiff is a single, 35-year-old automobile mechanic
who was badly injured while operating the piece of machinery. Although
it was equipped with a kill-switch that should have prevented the
injury, a manufacturing defect caused the switch to fail, resulting in a
serious injury to the plaintiff\'s nondominant arm. The defendant
concedes liability and pecuniary damages but disputes the appropriate
amount of pain and suffering damages.

With respect to those damages, the plaintiff presents testimony from
doctors concerning the extent of his injury and pain. The doctors
indicate that his injured arm does not need to be amputated, but is
likely to remain useless. The plaintiff also testifies on his own
behalf, describing \"continuing pain in his arm, the loss of his job,
the frustration of adapting to life with just one usable arm, and the
nature and extent of his pain and resulting total disability.\"
\[FN212\] The plaintiff **\*1306** further testifies that \"he had to
take prescription narcotic pain medication continuously.\" \[FN213\] For
its part, the defendant offers testimony suggesting that the plaintiff
is exaggerating his injury. The defendant also presents testimony from
an occupational therapist, who states that people with such injuries
\"usually can control their pain and lead relatively normal lives.\"
\[FN214\]

The judges assigned to the suppression group \[FN215\] received an extra
paragraph after the defendant\'s testimony. The judges in this group
learn that the defendant seeks to introduce evidence that the plaintiff
has a criminal record. Specifically, he \"had been convicted of
swindling schemes in which he obtained the life savings of elderly
retirees by falsely promising them exorbitant rates of return, and then
using their money to pay his living expenses.\" \[FN216\] The materials
note that the plaintiff\'s most recent conviction had been fourteen
years ago and that he had spent two years in prison. The plaintiff
objects to the introduction of this testimony, even for the limited
purpose of impeaching his credibility, on the ground that the probative
value of this old conviction does not substantially outweigh its
prejudicial effect under the applicable evidentiary rule. The judges are
then asked to rule on the objection. Finally, judges in both the control
group and the suppression group are asked to indicate how much they
would award the plaintiff in compensatory damages.

2\. Prior Criminal Conviction: The Results

Table 4 presents the results of the study of prior criminal convictions.
The judges who ruled that the prior criminal convictions were not
admissible awarded an average of 12% less in pain and suffering damages
than did those judges who were not exposed to the plaintiff\'s criminal
history. The difference between these two groups was marginally
statistically significant, using a nonparametric test. \[FN217\]
Although **\*1307** the judges who sustained the objection and the
judges who overruled the objection appear to have produced somewhat
different awards, these differences were not significant. \[FN218\]

Table 4: Past Criminal Conviction: Means and Quartile Results (in
\$1000s)

Condition (and n) Mean 1st Quartile Median 3d Quartile

Control (43) 778 300 500 1000

Suppression (73) Sustain (61) 685 200 400 800

Overrule (12) 406 163 275 713

We also attempted to assess the effects of gender, court, and
experience. We performed these analyses on a logarithmic transformation
of the raw awards so as to create a normal distribution of the awards.
We regressed the log of the award on condition (using only those judges
who sustained the objection in the suppression condition), gender,
court, and an interaction term of condition with gender, court, and
experience. We found no significant main effects or interactions for any
of these terms.

3\. Prior Criminal Conviction: Discussion

Exposure to the plaintiff\'s prior criminal conviction appears to have
influenced the judges\' decisions, even though most judges ruled to
suppress the information. The mean awards were somewhat lower among
judges who had seen the evidence and sustained the objection, and the
distribution of awards was generally shifted downwards. Much like mock
jurors, judges seemed unable to ignore a prior conviction.

Although the results revealed no statistically significant differences
between the judges who ruled the conviction inadmissible and the judges
who admitted the evidence, few conclusions can be drawn from this
result. The number of judges who admitted the conviction is too small to
make a meaningful comparison. Judges who admitted the conviction seemed
to produce lower awards than judges who suppressed **\*1308** the
conviction, but the trend did not approach significance, possibly due to
the small number of judges who admitted the evidence. It could be that
the judges who suppressed the conviction were able to discount the
conviction to some extent. The groups are not, however, completely
comparable. Judges who admitted the testimony presumably did so because
they believed that the testimony\'s probative value substantially
outweighed the prejudicial effect. Hence, the judges who admitted the
testimony probably gave it more weight than judges who suppressed it.

These results support the general proposition that judges also have
difficulty ignoring intrinsically excluded testimony. The results leave
the exact mechanisms for how the materials influenced the judges
unidentified, however. Because the past crime was one involving fraud,
it could be that the judges discredited the plaintiff\'s account of his
injuries. On the other hand, it might be that the judges who learned of
it simply awarded less money to the plaintiff because they deemed him a
socially undesirable character. Either way, judges were affected by the
evidence that they themselves had ruled inadmissible. Future versions of
this study (in which the past crime is odious, such as child
molestation, but not associated directly with fraud) could help
disentangle these potential underlying mechanisms.

E. Postconviction Cooperation Agreement

Our fifth scenario explores whether judges can disregard information a
prosecutor obtained from a cooperating criminal defendant and then
inappropriately used against him in a sentencing hearing. When the
government enters into a plea agreement containing a cooperation clause,
it is bound to honor the agreement. \[FN219\] The government is not
permitted to renege on the agreement and use information it uncovers
from the defendant against that defendant. \[FN220\] In the **\*1309**
event that a judge is exposed to such information, the judge should
disregard it in sentencing the defendant. Despite this, we expect the
judges to be influenced by exposure to such information.

1\. Postconviction Cooperation Agreement: The Scenario

To assess whether judges might be influenced by such information, we
created a scenario entitled \"Sentencing.\" \[FN221\] In this scenario,
the participating judges learn that they are presiding in a criminal
sentencing hearing. Appearing in front of the judges is Sam Kaiser, who
was found guilty of possession of 150 grams of methamphetamine, which
carries a base offense level of \"26\" under the federal sentencing
guidelines. \[FN222\]

Kaiser, who is twenty-seven years old, dropped out of high school when
he was seventeen, has never held a job for long, is unmarried, and has
no children. The judges learn that Kaiser had several prior convictions
for larceny and minor drug possession, so he has four \"criminal history
points\" under the guidelines sum, \[FN223\] which puts him in
\"Category III\" for sentencing under the federal sentencing guidelines.
\[FN224\] The materials inform the judges that the appropriate sentence
for him is from 78 to 97 months, given his criminal history points and
the offense level. \[FN225\]

Following his conviction, Kaiser cooperated with the prosecution in
exchange for a sentencing recommendation. Additionally, as part of this
agreement, the prosecution agreed that it would not use any of the
information it learned from him against him.

Judges in the control group also learn that \"Kaiser revealed the name
of his supplier, but nothing else of substance.\" \[FN226\] Judges in
the suppression group learn that Kaiser \"had helped his 30-year-old
cousin produce methamphetamine in a basement laboratory,\" and that
\"his cousin had a 15-year-old girlfriend who frequently \'tried out\'
their batches for them.\" \[FN227\] The judges in this group then learn
that the **\*1310** prosecution has asked them to add six levels to
Kaiser\'s offense level because \"he had been engaged in the manufacture
of methamphetamine in a fashion that had endangered a minor.\" \[FN228\]
Under the guidelines, if such information was properly presented, it
would warrant judges raising the offense level by that amount. \[FN229\]
If that were to happen here, Kaiser would face a sentence from 151 to
188 months under the guidelines. \[FN230\] Kaiser\'s attorney argues
that the prosecution reneged on its deal and cannot use this information
against him in sentencing.

Thereafter, the materials inform both groups of judges that \"\[n\]o
other circumstances supporting any additional enhancements, departures,
or other adjustments are present.\" \[FN231\] The materials then ask the
judges to sentence Kaiser.

2\. Postconviction Cooperation Agreement: The Results

This information had an untoward effect on the sentences handed down by
the judges. All but one of the thirteen judges in the control condition
sentenced Kaiser to 78 months, the shortest possible sentence under the
guidelines. The only judge who deviated from this sentence departed
downwardly, sentencing Kaiser to just 60 months (and was dropped from
the analysis, having disregarded the instructions). \[FN232\] In the
suppression condition, 86.7% (13 out of 15) of the judges rejected the
prosecution\'s request to raise the offense level. Nonetheless, exposure
to the negative information about the defendant influenced their
behavior. In contrast to judges in the control condition, only 46.2% (6
out of 13) of these judges chose 78 months as the sentence. \[FN233\] On
average, the thirteen judges who rejected the prosecutor\'s request
sentenced Kaiser to 85.9 months in prison. The difference between the
control group judges and the suppression **\*1311** group judges who
denied the prosecution\'s motion was statistically significant.
\[FN234\]

3\. Postconviction Cooperation Agreement: Discussion

Although nearly 90% of the judges determined that the information the
defendant provided while cooperating with the government could not be
used against him at sentencing, the availability of this information
increased the defendant\'s sentence. The information that the defendant
provided about the nature of his offense seemed to alter the judges\'
impressions of him. In the control condition, the judges may have viewed
the defendant as just another hapless drug dealer for whom the guideline
range was too severe. All of the judges in the control condition imposed
the minimum sentence. When the defendant\'s testimony revealed that he
had endangered and abused a minor, however, judges meted out stiffer
sentences. Neither the government\'s agreement not to use the
information nor the court\'s obligation to enforce it protected this
defendant from its effects on his sentence.

The behavior of the judges in the control condition is also noteworthy.
Except for one judge who inexplicably deviated below the sentencing
minimum, all provided exactly the same sentence\--the minimum under the
guidelines. Although complaints that the federal sentencing guidelines
are too harsh in drug cases are common, \[FN235\] there is little direct
empirical evidence that judges view them this way. \[FN236\] Our study
inadvertently provided some indirect evidence on **\*1312** this point.
In every other scenario we have presented, in both this paper and in our
prior research, we have found variations among judges\--especially when
the outcome consists of a continuous parameter (such as months or
dollars), as opposed to a binary parameter (such as verdict or ruling).
That judges of different political parties, different genders, different
amounts of experience, and doubtless with different attitudes toward the
war on drugs all agree to sentence at the exact bottom of the guidelines
range suggests that the judges perceive 78 months to be too harsh a
sentence for possessing 150 grams of methamphetamine.

Finally, this study also has implications for the Supreme Court\'s
recent pronouncements on sentencing guidelines in Blakely v. Washington
\[FN237\] and United States v. Booker. \[FN238\] In these cases, the
Court struck down both a state sentencing scheme and the federal
sentencing guidelines as inconsistent with the right to a jury trial.
The Court concluded that any fact that increases a defendant\'s maximum
sentence must be submitted to a jury. \[FN239\] The problem with the
holding, from our perspective, is that statutory sentencing ranges can
be quite broad. Our results suggest that even if a judge does not have
an explicit jury finding on a particular fact that would raise the upper
limit of the defendant\'s sentencing, evidence tending to prove this
fact might still influence the judge in determining what sentence to
impose within that original range. This is what occurred in our study.
As we have shown, sentencing guidelines do not eliminate the possibility
of such extraneous influences. Sentencing guidelines, however, mitigate
the problem by confining the influence of this extraneous information.

**\*1313** F. Hindsight and Probable Cause

Our sixth scenario explores whether judges can disregard the outcome of
a search when deciding whether the police had probable cause to conduct
the search in the first place. The Fourth Amendment requires that police
searches be based on \"probable cause.\" \[FN240\] Evidence obtained
from a search conducted without probable cause is inadmissible on the
ground that it violates the Fourth Amendment\'s \"right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.\" \[FN241\]

Despite this prohibition, judges required to rule on the legality of a
search might have difficulty disregarding the outcome of the search due
to the hindsight bias. \[FN242\] In most aspects of life, the hindsight
bias creates few problems because few occasions call for a reassessment
of what could have been known in the past. In the courtroom, however,
repredicting the past is commonplace. \[FN243\] Many situations, from
determining what accidents tort defendants should have been able to
avoid to assessing whether an invention was \"obvious\" in patent law,
require judges and jurors to ignore the known outcome and assess what
was predictable ex ante.

Likewise, when a judge must rule on the admissibility of the fruits of a
search conducted without a warrant, she does so with the knowledge that
the search produced incriminating evidence. If the hindsight bias
affects judges\' assessments of probable cause, then judges in hindsight
will admit evidence obtained under circumstances in which police could
not have obtained a warrant in foresight. Some commentators \[FN244\]
and even the Supreme Court itself \[FN245\] have suggested that
**\*1314** one of the principal purposes of requiring a warrant is to
avoid making assessments of probable cause entirely in hindsight.

Previous studies suggest that the hindsight bias influences judges. In
our earlier work, we found that judges overestimated the predictability
of outcomes on appeal. \[FN246\] Other researchers have found that the
hindsight bias influences judicial assessments of negligence. \[FN247\]
In these studies, researchers found that judges were more likely to
identify conduct as unreasonable, negligent, or even reckless after
learning that the conduct had produced an accident. None of these
studies directly addresses the issue of the hindsight bias in probable
cause determinations, although there is some evidence that mock jurors
are influenced by it. \[FN248\]

1\. Hindsight and Probable Cause: The Scenario

To determine whether judges might be influenced by the outcome of a
potentially defective search, we created and administered a scenario
labeled \"Fourth Amendment Issue.\" \[FN249\] In this scenario, we asked
participating judges \[FN250\] assigned to the control group to
determine whether they would grant a warrant under the circumstances
described, and we asked participating judges assigned to the suppression
**\*1315** condition to rule on the admissibility of evidence collected
without a warrant under the same circumstances. \[FN251\]

In both cases, the judges learn that a police officer was on patrol in a
parking lot outside a large arena hosting a rock concert. The officer
noticed a well-dressed, nervous-looking man exit a BMW and fiddle with
something in the trunk of his car. The man then met a friend, bought
tickets to the event, and entered the arena. Thirty minutes later, the
officer noticed that one of the BMW\'s windows was rolled down.
Concerned that the car might be burglarized, he approached the car to
close the window. Upon arriving at the car, the officer stated that he
\"smelled something that he believed, based on a demonstration at a
training session several years earlier, to be burnt methamphetamine. He
looked inside the car and didn\'t see any drugs, but he did notice some
Visine, a local map, and a couple of empty beer cans.\" \[FN252\]

In the foresight condition, the materials then stated that the police
officer requested a telephonic warrant to search the trunk of the car.
The materials asked simply, \"Will you issue the warrant?\" \[FN253\] In
the hindsight condition, the materials stated that \"\[b\]ased on these
observations,\" the police officer searched the trunk of the car. The
search produced \"10 pounds of methamphetamine, other drug
paraphernalia, and a gun that had recently been fired.\" \[FN254\] The
gun turned out to match a weapon used to murder a drug dealer across
town earlier that evening. The driver was then arrested and tried. The
materials noted that the defense attorney has moved to suppress the
evidence obtained in the search, arguing that the police officer lacked
probable cause for the search. The materials then asked, \"Will you
allow the evidence to be admitted?\" \[FN255\]

**\*1316** The materials thus take advantage of an exception to the
warrant requirement. Police officers who face \"exigent circumstances\"
may undertake the search even without a warrant, so long as they have
probable cause. \[FN256\] Automobile searches are considered per se
exigent circumstances. \[FN257\] Nevertheless, police sometimes do
request warrants for automobile searches to ensure the admissibility of
evidence uncovered during the search. Hence, both the hindsight and the
foresight conditions represent plausible variations on the underlying
story.

2\. Hindsight and Probable Cause: The Results

In foresight, 23.9% (11 out of 46) of the judges concluded that there
was probable cause for a search and granted a warrant; in hindsight,
27.7% (13 out of 47) of the judges concluded that there was probable
cause for a search and ruled the testimony admissible. There obviously
was not a statistically significant difference between these two groups.
\[FN258\] Logistic regression of the decision on court, gender,
experience, and the interaction of these variables with condition
revealed no significant effects.

It is possible that the lack of a statistically significant effect might
have resulted from a limited sample size. We note, however, that the
sample size was sufficient in that it had an 87.4% chance of detecting a
significant or marginally significant difference if the true difference
between foresight and hindsight was 30 percentage points. \[FN259\] In
other words, if the true difference between the foresight and hindsight
conditions was actually similar in magnitude to the differences found in
the attorney-client and rape-shield problems, we likely could have
detected a significant effect in this problem. This likelihood drops to
56.5% and 20.5% for twenty- and ten-percentage-point differences,
respectively.

**\*1317** 3. Hindsight and Probable Cause: Discussion

Our study produced no evidence that the hindsight bias affected the
judges\' assessments of probable cause. Knowledge of the fruits of the
search had no discernible effect on judges\' decision making. Judges
were able to ignore the damning evidence that the search produced and
make essentially the same decision as judges who were unaware of what
the search would uncover. The results also reveal only the slightest
trend towards a hindsight bias.

These results are somewhat surprising. The vast literature on the
hindsight bias includes virtually no studies that fail to uncover
evidence of the hindsight bias in ex post assessments of ex ante
probabilities. A handful of hindsight-bias studies report only
non-significant differences between hindsight and foresight conditions.
\[FN260\] So what accounts for our findings? It is possible that the
facts we presented are simply anomalous, but we doubt it. The
circumstances presented closely match the kinds of situations that
produce the hindsight bias. The materials asked judges in hindsight to
assess how events must have seemed to the police officer beforehand. The
materials also include some ambiguous facts that could easily be
reinterpreted as more sinister after one learns what the fruits of the
search were. These circumstances produced the hindsight bias in numerous
other studies.

Nor do we think that judges have necessarily learned how to avoid the
hindsight bias. As noted, several other studies show judges are
influenced by hindsight bias in other situations. \[FN261\] Furthermore,
we did not observe any effect of experience on the bias. That result
undermines the suggestion that judges eventually learn how to make
decisions without being influenced by the hindsight bias in general.

One possibility is that \"probable cause\" assessments do not actually
depend upon the likelihood that a search produces incriminating
evidence. Rather, probable cause assessments might reflect a judicial
effort to identify police conduct thought to be socially appropriate.
Thus, the court simply evaluates whether the conduct is appropriate or
excessive. If so, the results of our study are still surprising. It is
hard to imagine that the likelihood that the search would produce
incriminating evidence is somehow unrelated to the assessment of whether
the police engaged in a socially appropriate search. Furthermore,
**\*1318** a judgment of appropriate police conduct would also seem
likely to be influenced by the outcome of the search.

Another possibility is that judges have developed informal heuristics
which they use to assess probable cause. \[FN262\] Perhaps judges do not
attempt to assess probable cause de novo every time they encounter a
probable cause issue. Rather, they may have rules of thumb for
determining probable cause that address common situations, such as vague
assertions by police officers that they thought they smelled drugs. Some
judges might have just developed the habit of refusing to grant
warrants, or admitting evidence seized after a search, when the only
real basis for probable cause consists of such an assertion. If judges
adopt a set of simple, uncomplicated heuristics to assess probable
cause, they might not be so easily swayed by the outcome of the search.
Sorting out these issues will require further study.

G. Inadmissible Criminal Confession

Our final scenario explores whether judges can disregard information
gleaned from an inadmissible confession in a criminal case. In its
famous Miranda \[FN263\] and Escobedo \[FN264\] decisions, the Supreme
Court interpreted the Fifth Amendment\'s privilege against
self-incrimination as providing several procedural safeguards to
criminal suspects. Among them is the requirement that once a suspect in
custody requests a lawyer, the police must cease interrogation. If the
police continue with the interrogation, the resulting confession is
inadmissible. \[FN265\]

Judges often confront an uncomfortable reality when sitting in a case
involving an illegally obtained confession. Under Miranda and Escobedo,
the judge has an obligation to suppress the confession, but because the
confession is often among the most important pieces of evidence against
the defendant, the act of suppressing the confession may undermine the
prosecution\'s case against him. Thus, we expect that it will be
difficult for judges to ignore the suppressed confession.

**\*1319** Most prior studies indicate that mock jurors commonly ignore
instructions to disregard constitutionally infirm evidence. \[FN266\] In
particular, mock jurors pay attention to the details of coerced
confessions, regardless of whether the evidence had been deemed
constitutionally infirm and inadmissible. To be sure, extreme police
conduct does increase the extent to which mock jurors can discount such
evidence. \[FN267\] Likewise, a series of studies of the influence of
illegal wiretaps on verdicts reveals that mock jurors have some ability
to discount such evidence. \[FN268\] So to some degree, even mock jurors
seem able to account for constitutional constraints. But on the whole,
mock jurors seem willing to convict defendants they perceive to be
guilty, even if the damning evidence is deemed inadmissible for
extrinsic constitutional reasons. \[FN269\]

1\. Inadmissible Criminal Confession: The Scenario

To assess whether judges can ignore such constitutionally infirm
evidence, we created a scenario entitled \"Evaluation of a Robbery
Trial.\" \[FN270\] In this scenario, the participating judges \[FN271\]
learn that they are presiding in a bench trial involving a criminal
prosecution for armed robbery. Bench trials are not the norm in criminal
cases, but they do occur. \[FN272\] We provided the judges with an
explanation for why the defendant sought a bench trial in this case:
\"Concerned that he is a **\*1320** member of a small minority in the
community and will face an unsympathetic jury, Mr. Jones has waived his
right to a jury trial. You are thus presiding in a bench trial.\"
\[FN273\]

The judges learn that the perpetrator, wearing a ski mask and
brandishing a gun, walked into an empty 7-Eleven store at night and
demanded that the lone employee place money in a shopping bag. The
cashier stuffed \$200 into the bag, and the perpetrator ran off,
discarding both the gun and ski mask on the way out. The cashier
observed that the suspect got into a white Ford Taurus with an Arizona
license plate bearing \"GB\" as the last two characters. The police
retrieved the gun and mask but could obtain no fingerprints from them.

The police surveyed the neighborhood for a matching car. They found one
ten blocks away that was a close match (the last two characters of the
license plate on the Ford Taurus were \"C8\"). The police traced the car
through the Department of Motor Vehicles and found the address of the
owner. They knocked on the door of his apartment, and he answered. He
matched the build and race of the perpetrator and was wearing similar
clothes (although this consisted of jeans and a white t-shirt). The
police then insisted that he accompany them to the station house where
they led him to a locked room, read him his Miranda rights, and began
interrogating him. At the police station, they allowed the cashier to
listen in on the interrogation, and the cashier said, \"that sounds like
the guy.\" \[FN274\] The police then arrested the defendant and obtained
a warrant to search his apartment. The search produced shopping bags
similar to the one used by the perpetrator, black gloves, and more than
\$200 in cash, but nothing else incriminating.

In addition to the aforementioned information, the judges assigned to
the suppression condition learn the following:

The police continued questioning the defendant. Even though the
defendant clearly requested a lawyer, twice, the police refused to call
one and continued the interrogation. Two hours later, the defendant
confessed, and agreed to write out a description of the crime. His
written description matched the events perfectly, including the fact
that he discarded the ski mask and gun outside the store (which the
police had not told him). \[FN275\] **\*1321** The materials stated that
\"the defendant\'s attorney has moved to suppress the confession,
arguing that the interrogation violated the defendant\'s rights under
Miranda by continuing after the defendant had requested an attorney.\"
\[FN276\] The judges in the suppression condition were then asked
whether they would grant the motion to suppress the evidence. Finally,
the materials in both the control and suppression conditions asked the
judges to respond to the following question: \"Based solely on the
evidence admitted at trial, would you convict the defendant?\" \[FN277\]

2\. Inadmissible Criminal Confession: The Results

In the control condition, 17.7% (9 out of 51) of the judges convicted
the defendant. In the suppression condition, 20.7% (11 out of 53) of the
judges who suppressed the confession convicted the defendant. \[FN278\]
The responses of the judges in these two groups were not statistically
significantly different from one another. \[FN279\] Logistic regression
of the decision on court, gender, experience and the interaction of
these variables with condition revealed no significant effects.

As with the probable cause scenario, the lack of a significant effect
might be attributable to the limited sample size, rather than to the
lack of any real difference. If the true difference were 30 percentage
points, however, our study had a 93.4% chance of producing a significant
or marginally significant effect. \[FN280\] This percentage drops to
67.1% and 25.6% for detecting differences of 10 and 20 percentage
points, respectively.

3\. Inadmissible Criminal Confession: Discussion

The judges in this study appeared able to ignore the evidence of the
improperly obtained confession. The differences between the control and
the suppression conditions were barely distinguishable. The judges were
able to uphold the policies underlying the Miranda doctrine and ignore
the incriminating but inadmissible evidence.

**\*1322** These materials might be idiosyncratic, but we suspect they
are not. The confession in our materials was not an unreliable product
of coercion; it included information that was known only to the
perpetrator, indicating that the defendant had in fact committed the
robbery. It could be that the judges missed this important fact, because
the materials do not highlight it. We did not ask the judges to assess
the likelihood that the defendant actually committed the crime, which
would have enabled us to measure this directly. In our other scenarios,
however\--particularly the sexual assault scenario\--important details
did not escape the judges\' notice and instead had a powerful effect on
their judgment. We have no reason to think that judges failed to notice
this fact.

It appears instead that the judges simply managed to ignore the tainted
evidence. The scenario includes ambiguities that provided plenty of
fodder for reconstructing or justifying a guilty verdict. Not only were
the judges able to disregard their knowledge that the defendant was
guilty, they were also able to keep that information from coloring their
assessment of the other facts. How they did this is unclear. It might be
that judges were simply compensating for their own knowledge. Perhaps
judges, aware that their thinking was influenced by the inadmissible
confession, implicitly raised the threshold for their willingness to
convict. Even as their knowledge influenced their understanding of the
ambiguous facts, the judges also demanded more certainty. Further study
is necessary to sort this out.

Compared with other scenarios, this scenario and the hindsight bias
scenario raise more serious questions about the applicability of our
results to the real world. It might be easy enough in hypothetical
assessments to assert that an important constitutional principle would
prevent one from convicting a defendant. Exonerating a real, live
defendant that a judge knows to be guilty might be a more serious
matter. Judges, however, do this when they rule critical evidence
inadmissible on constitutional grounds in jury trials, knowing full well
that the ruling will destroy the prosecution\'s case. Whether judges
ignore their knowledge of inadmissible evidence in deciding real cases
remains uncertain. These results indicate, however, that judges might
have more ability to ignore such evidence than intuition might suggest.

**\*1323** H. Summary and Interpretation

In our previous article on federal magistrate judges, we demonstrated
that judges, like laypersons and other expert decision makers, are
subject to \"heuristics and biases\" or \"cognitive illusions\" when
making judgments. \[FN281\] Based on the research we conducted for that
article, we reached the unsurprising conclusion that \"\[j\]udges . . .
are human.\" \[FN282\] The research we report in this Article
corroborates that conclusion. Judges are indeed human; like jurors, they
are often unable to \"close the \[v\]alves of \[their\] attention.\"
\[FN283\]

Taken together, our studies show that judges do not disregard
inadmissible information when making substantive decisions in either
civil or criminal cases. We think the reason is that they are
unwittingly influenced by inadmissible information and that they cannot
ignore it much of the time. Others might argue that our studies show
that judges are capable of disregarding inadmissible information but
that they choose not to do so. They might claim that judges purposefully
flout the evidentiary rules in favor of selecting the substantive
outcome that they think is just or that comports with their personal
policy preferences. In the rape-shield problem we describe above, for
example, the judges who learned of the victim\'s sexual history were
much more likely than the judges who did not learn this information to
free the defendant from criminal liability. \[FN284\] While we believe
that these results show that judges had difficulty ignoring the
inadmissible sexual history, and that their exposure to it induced them
to exonerate the defendant, it is also possible that the judges were
capable of disregarding this information but chose not to do so because
they felt that justice required them to free the defendant from criminal
liability.

Although this alternative account is plausible, we think it is less
compelling than our own interpretation for several reasons. First, the
weight of psychological evidence\--from general psychological studies,
mock juror studies, and the one prior study of judges\--suggests that
people in general have great difficulty deliberately disregarding
information. Second, although we do not consider ourselves naive, we
**\*1324** are inclined to believe that trial judges generally attempt
to comply with the evidentiary rules rather than merely selecting the
substantive outcome they prefer. Finally, we think our interpretation is
more consistent with our results. Take, for example, the settlement
scenario we described above. \[FN285\] We believe the only sensible
interpretation of this study is that the judges were unable to disregard
the settlement demands when they set damages in the case; it strains
credulity to think that they could have ignored the demands but chose
instead to award less in the low-anchor condition and more in the
high-anchor condition to pursue a (nonobvious) sense of justice.

The pattern of results we observed in these seven scenarios defies easy
explanation. One might be tempted to assert that judicial solicitude for
constitutional rights explains the results in the last two scenarios,
both of which had constitutional dimensions. We doubt, however, that
judges take constitutionally inspired rules of admissibility any more or
less seriously than the non-constitutionally inspired rules implicated
by our other problems. Certainly, it is hard to see why judges would
treat the attorney-client privilege with any less care than Miranda
violations.

Alternatively, it also appears that judges were less able to ignore
inadmissible evidence when they were making factual determinations that
were less amenable to judicial review. In the first five scenarios, the
inadmissible evidence supported: lower or higher damage awards, a
judgment for the defense in a civil case, an acquittal in a criminal
case, and a longer criminal sentence. Some of these issues are not even
subject to appeal, and the others would result in reversals only in
extraordinary circumstances. By contrast, in the two scenarios in which
the judge ignored the inadmissible evidence, it supported a finding of
probable cause for a search in a criminal case and a guilty verdict in a
criminal case. Both constitute decisions that are likely to be appealed
and possibly overturned if deemed erroneous. Thus, judges were more
likely to be influenced by inadmissible information if appellate review
was deferential or unlikely. Whether this theory truly explains the
pattern of results, however, would require more data.

**\*1325** IV. Prescriptions

We are somewhat reluctant to make policy recommendations on the basis of
the limited data we have collected for this Article. Our findings do
raise important questions for the justice system, however. Judges are
the key players in this system. They decide a sizable percentage of
civil cases at trial, \[FN286\] and they decide many more cases on
motion than they do at trial. \[FN287\] If their judgments at trial and
their decisions on motions are tainted by inadmissible evidence, the
fairness of the justice system may be undermined.

We believe our results support the following three policy
recommendations.

A. Separating \"Managerial Judging\" from Adjudication

We first propose that courts should separate judges\' \"managerial\"
\[FN288\] functions from their \"adjudicative\" functions as a way of
reducing the likelihood that judges will be influenced by inadmissible
evidence they encounter during pretrial proceedings when making
merits-based decisions on motions or at trial. \[FN289\] Courts, in
other words, should adopt a kind of divided decision making. For
example, courts might emulate the allocation of tasks in some federal
district courts in which magistrate judges resolve discovery disputes
and conduct settlement conferences while the district judges decide
substantive motions and preside over trials as the fact finders. This
could be done whether there are two types of judges, or just one. Two
judges could be assigned to each case, with one judge addressing the
merits and the other judge deciding everything else. They could then
swap roles on alternating cases.

Alternatively, courts could divide case management into several
subparts, such as litigation motions, settlement, and trial, and assign
**\*1326** judges to each task for all cases. \[FN290\] Such \"master
calendar\" systems are common in many state courts and were common in
the federal courts until the late 1960s. \[FN291\] Finally, courts might
adopt rules prohibiting the judge assigned to try the case from
participating in settlement conferences involving that case. Indeed,
various courts, in largely piecemeal fashion, have adopted each of these
reforms. \[FN292\]

This approach to the \"difficulty of deliberately disregarding\" problem
is not without its costs. In the normal course in federal court, judges
are assigned to particular cases and oversee them from beginning to end.
This is efficient in that one judge is familiar with the facts,
applicable law, procedural history, relationship between the parties,
and so forth. \[FN293\] Under a system of divided decision making, a
different judge might resolve a discovery dispute, rule on a pretrial
motion, supervise settlement, and try the case. Each of those judges
would have to get up to speed on the case, at least well enough to
resolve whatever matters are in front of that particular judge.

Still, the benefits of this approach might outweigh its costs. This
approach would dramatically decrease, though certainly not eliminate,
the likelihood that a trial judge rendering a merits-based decision
would have been exposed to inadmissible information before trial.
Consider, for example, the settlement scenario we described above.
\[FN294\] If that dispute had been litigated in a court characterized by
the kind **\*1327** of divided decision making we are proposing here,
plaintiff\'s counsel would have voiced his client\'s demands not to the
eventual trial judge, but rather to a settlement judge. Thus, the trial
judge would have made her damage award without having been exposed to
the inadmissible settlement demand.

B. Further Justification for the Jury Trial

We also recommend that jurisdictions favor another form of divided
decision making. Juries have been the targets of much criticism,
especially in recent years. \[FN295\] The data we report in this
Article, however, suggest that even if these criticisms are valid, other
reasons support continued reliance on jury trials rather than bench
trials. In our earlier study of judges, we made a similar
recommendation, arguing that \"those clamoring for judges to replace
juries should proceed with caution\" because juries may be able to make
better decisions than judges in some circumstances. \[FN296\] Here, we
reiterate that recommendation, though we do so on a slightly different
basis.

Both jurors and judges are likely to have difficulty disregarding
inadmissible evidence, but judges presiding in a jury trial can protect
juries from encountering inadmissible evidence in a way that they cannot
protect themselves. Most obviously, jurors will never be exposed to the
inadmissible evidence that judges encounter during the pretrial phase of
litigation. Moreover, even during the trial itself, judges have
procedural devices at their disposal, such as in camera review, to
enable them to review potentially inadmissible evidence outside the
presence of the jury. In short, the exclusionary rules operate best in a
system of divided decision making in which the judge serves as
gatekeeper and the jury serves as fact finder.

As a related matter, these results suggest that clear rules of evidence
(such as the blanket prohibition on admissibility of privileged
information, absent crime or fraud) have an advantage over standards for
admissibility (such as the rule allowing old criminal convictions to be
admitted if they are highly relevant). Standards encourage parties
**\*1328** to present evidence to the judge in an effort to have it
admitted, whereas rules might discourage such activity. Consequently,
standards for admissibility will force judges to review more evidence,
and possibly be affected by it regardless of whether it is admitted,
than clear rules would.

C. Establishing Guidelines for Civil Damages

Third, and finally, we worry that judges might be particularly
vulnerable to the inappropriate influence of inadmissible information
when assessing damages. Judges supervising settlement conferences, for
instance, might inadvertently be exposed to inadmissible anchors, like
settlement demands or insurance policy limits, or to other inadmissible
information that might influence their assessment of damages, like
whether the defendant in a tort suit has taken subsequent remedial
measures. This is of particular concern when judges must award damages
that are inherently difficult to quantify, such as \"pain and
suffering\" damages or punitive damages. These kinds of damages seem
particularly vulnerable to untoward influences such as anchoring.
\[FN297\] Others have expressed the concern that these influences affect
juries; \[FN298\] our results suggest that judges are also vulnerable.
The results we report in this Article provide an argument for limiting
the fact finder\'s discretion in this area, whether that fact finder is
a judge or a jury.

Judges, like jurors, are vulnerable to inappropriate influences on their
determination of damage awards. In our earlier works and here, we
observed both enormous variation in the damage awards that judges felt
to be appropriate and the undesirable influence of anchoring. We
recommend that legislatures or courts adopt damage schedules, akin to
criminal sentencing guidelines, to structure and confine judicial
discretion. Our goal is not \"tort reform\"; we are not advocating
damage caps. Nor are we advocating ranges so narrow or inflexible that
they unduly deprive judges and juries of their discretion. Rather, we
suggest that jurisdictions adopt guidelines to inform fact-finder
discretion in awarding damages in order to prevent or limit the
**\*1329** extent of distortions resulting from limitations on human
cognitive ability. \[FN299\]

The research on anchoring, in fact, provides insights into the potential
value of even a nonbinding damage schedule, akin to workers\'
compensation systems. The inappropriate influence of anchoring arises
from the arbitrary nature of some anchors available to trial judges as
they determine the appropriate damage award. Damage requests by
attorneys are self-serving, awards in past cases can be idiosyncratic,
and reliance on numbers discussed during settlement talks can undermine
the settlement process. Damage awards taken from an agreed schedule,
however, would ideally represent a consensus view of an appropriate
award and hence would inject a meaningful anchor into the process.
Judges could use a damage schedule as a starting point and then adjust
as may be appropriate.

What we propose for civil damages, in effect, is adoption of something
like the federal criminal sentencing system as it exists today, after
the Supreme Court\'s decision in United States v. Booker. \[FN300\] As
Justice Breyer explained in a separate opinion, the Court in Booker only
declared the sentencing guidelines unconstitutional to the extent that
they are binding on a sentencing judge\'s decision. \[FN301\] Federal
district judges must still calculate the guidelines range in determining
criminal sentences. \[FN302\] The guidelines will, in effect, provide a
meaningful anchor to guide sentencing. A similar procedure would provide
greater predictability and equity to damage determinations in civil
cases.

Conclusion

Some of the changes to the rules of evidence and procedure suggested by
empirical research in psychology may seem too novel or costly to be
considered seriously. As we learn more about human decision **\*1330**
making and the operation of our justice system, however, it is likely
that we will eventually accept the need for fine-tuning, and perhaps
even significant changes. As Professor Damaska has observed:

As science continues to change the social world, greater transformations
of factual inquiry lie ahead for all justice systems. These
transformations could turn out to be as momentous as those that occurred
in the twilight of the Middle Ages, when magical forms of proof
retreated before the prototypes of our present evidentiary technology.
\[FN303\]

Of course, it would be prudent to conduct further research before
significant changes are made. As studies of jury decision making have
shown, well-intentioned efforts to solve problems may be ineffective,
and sometimes only succeed in making the problem worse. \[FN304\] In
addition, because the rules of evidence and procedure are merely parts
of the larger legal system, the collateral consequences of tinkering
with some parts while leaving others untouched must be taken into
account. \[FN305\] If the results of existing research are confirmed,
however, we may have a responsibility to make the changes sooner rather
than later. Judicial decisions have serious consequences for litigants,
and undue delay in eliminating sources of error would undermine our
commitment to accurate and just adjudication. \[FN306\] Litigants,
courts, and the community as a whole can only benefit if legal
procedures are updated to keep pace with progress in the understanding
of human decision making.

The results of our studies show that judges frequently cannot \"close
the valves of \[their\] attention.\" \[FN307\] The presumption that
people **\*1331** can ignore what they know, or use it for some purposes
but not for other purposes, may sometimes be true, but often is little
more than a convenient fiction. \[FN308\] This may mean that judicial
decision making is not as accurate as we hope it is. The time has come
to start thinking about how we are going to solve that problem.

**\*1332** Appendix: Stimulus Materials

Assessment of Damages

Imagine that you are presiding over an automobile accident case in which
the parties have agreed to a bench trial. The plaintiff is a 31-year-old
male schoolteacher and the defendant is a large package-delivery
service. The plaintiff was sideswiped by a truck driven erratically by
one of the defendant\'s drivers. As a result of the accident, the
plaintiff broke three ribs and severely injured his right arm. He spent
a week in the hospital, and missed six weeks of work. The injuries to
his right arm were so severe as to require amputation. (He was
right-handed.)

The parties have stipulated that the accident was caused solely by the
negligent driving of the defendant\'s employee. The parties have settled
the plaintiff\'s claim for medical expenses, and the plaintiff\'s
economic claims for lost wages and the like. The only remaining issue in
the lawsuit is the amount of damages the plaintiff should receive for
pain and suffering and the loss of his right arm.

In an effort to settle the case, the parties requested that you preside
over a settlement conference before the commencement of the trial.
During the settlement conference, the plaintiff\'s attorney confided in
you that his client \[Low anchor version and its control: could use the
money and wanted to eliminate any possibility of an appeal. / High
anchor version and its control: was intent upon collecting a significant
monetary payment.\] \[Low anchor version: He stated that his client
would be willing to settle for \$175,000.\] \[High anchor version: He
stated that his client would not be willing to settle for less than
\$10,000,000.\] Nevertheless, the parties were unable to reach a
settlement and the case proceeded to trial. The settlement discussions
are, of course, not admissible evidence at trial under Rule \_\_\_ of
the \_\_\_ Rules of Evidence.

The evidence presented at trial included testimony from the plaintiff, a
young father, that he could no longer play recreational softball, or
even play catch with his son. Although the plaintiff has continued
teaching, he testified that doing his job is somewhat more difficult,
and that he is subject to periodic ridicule by the students. Plaintiff
also described the severe pain he endured before arriving at the
hospital, during the surgery to amputate his arm, and during his
post-surgical therapy.

**\*1333** Although both parties presented arguments, neither suggested
a specific figure, leaving the amount to be awarded entirely up to you.
How much would you award plaintiff for pain and suffering and loss of
his right arm?

\$\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**\*1334** Evaluation of a Contract Dispute

Suppose that you are presiding over a bench trial in a case in which the
plaintiff, John Jones, is suing SmithFilms for breach of contract. Jones
was hired by SmithFilms as an independent contractor to assist
SmithFilms in making a movie. The contract between the parties consists
of a one-page letter signed by Jones and Stan Smith, the president of
SmithFilms. The letter simply recites that Jones will provide various
services to SmithFilms, that Jones will continue to be paid a monthly
salary as an independent contractor until the film is released, and that
Jones will receive such other consideration as was agreed upon by the
parties during the pre-signing breakfast.

SmithFilms and Jones agree on everything that was discussed at the
breakfast except whether SmithFilms would give plaintiff producer
credit. Jones contends that Smith promised him producer credit and
SmithFilms denies this. Both agree that Jones\' efforts turned out to be
an invaluable part of the film\'s production and were in no small
measure responsible for the film\'s ultimate commercial success. Jones
is seeking damages arising from SmithFilm\'s refusal to give him
producer credit.

\* \* \*

\[Suppression Materials: Prior to trial, the parties became embroiled in
a discovery dispute. The dispute concerned a request by SmithFilms that
Jones produce an audiotape which Jones made of a confidential telephone
conversation with Greg Gonzalez, an attorney, shortly after the contract
was signed. (Gonzales is not representing Jones in this lawsuit.)
SmithFilms argued that Gonzalez may have been giving Jones business
rather than legal advice. To resolve the dispute, the parties requested
that you listen to the audiotape in camera. You do so. At one point in
the tape recorded conversation, the following statements were made:

Jones: I really needed this deal and I was afraid that asking for
producer credit might be a turn-off, so I got nervous and did not ask
for it. But I meant to. I need your legal opinion, Greg. Suppose that I
send Smith a letter now saying that I meant for producer credit to be
part of the deal. Would that be legally binding?

Gonzalez: No. If you and Smith did not agree on producer credit during
breakfast, you don\'t have a leg to stand on. A letter now won\'t help.

Jones: Darn. That\'s a shame. **\*1335** The rest of the audiotape
confirms that Gonzalez was functioning solely in a legal capacity.

How would you rule on a motion to compel production of the audiotape?
(check one)

\_\_\_ I would grant the motion.

\_\_\_ I would deny the motion.\]

\* \* \*

At trial, Jones testified that during their breakfast meeting, Smith
agreed that SmithFilms would give Jones producer credit. He also called
as a witness the woman who was their waitress during the breakfast
meeting. She testified that she thought that she heard one of the
parties say the words, \"you can have producer credit.\" On cross
examination, she admitted that she had trouble remembering the breakfast
and was not 100% certain of this. Smith had suffered a severe stroke
just before his deposition was taken and he has been unavailable to
testify ever since. SmithFilms offered evidence that SmithFilms usually
did not give producer credit to independent contractors.

How would you decide this case (check one):

\_\_\_\_ For Jones, because Smith agreed to give Jones producer credit
during their meeting.

\_\_\_\_ For SmithFilms, because Smith did not agree to give Jones
producer credit during their meeting.

**\*1336** Evaluation of a Criminal Case

Imagine that you are presiding over a bench trial in which Mr. Geiger
has been charged with sexual assault. The evidence presented at trial is
summarized below:

Mr. Geiger is a senior at a local university, as is the complainant, Ms.
Smith. Several months ago, Ms. Smith and her new fiance attended a party
hosted by Mr. Geiger\'s fraternity. Several witnesses reported that they
saw Ms. Smith drinking heavily at the party. Witnesses also reported
seeing Mr. Geiger and Ms. Smith talking and drinking together and that
at one point, Mr. Geiger seemed to help Ms. Smith \"walk\" or
\"stagger\" into Mr. Geiger\'s room. The two had never met before.
Apparently, Ms. Smith\'s fiance began looking for her and was told that
she was in Mr. Geiger\'s room. He entered Mr. Geiger\'s room where he
discovered Mr. Geiger on top of Ms. Smith; her skirt was pulled up over
her waist. He pulled Mr. Geiger off of Ms. Smith, threw him onto the
floor, and then stormed off. Ms. Smith got up and ran after him.

A campus police officer testified that two hours after these events, Ms.
Smith appeared at the campus police station and charged that she had
been raped by Mr. Geiger in his room. She reported to the police that
she had been drinking heavily and that Mr. Geiger agreed to help her
into his room because she had become dizzy and needed to lie down. Then,
she claimed, he forced himself on her. She told police that she clearly
refused to consent to sexual intercourse and shouted \"no\" a couple of
times, but Mr. Geiger held her down and continued. According to the
police officer, Smith became visibly upset while recounting her story. A
physical examination revealed bruises on her upper thighs.

Ms. Smith\'s fiance testified that he had initially thought that Ms.
Smith\'s encounter with Mr. Geiger may have been consensual, but that
several days later, Ms. Smith convinced him that it was not. They had
just gotten engaged a few days before the party and still plan to get
married after college. He claims that before the incident, Ms. Smith was
cheerful and extroverted, while now Ms. Smith seems moody and depressed.
He asserted that she often bursts into tears for no reason and is afraid
to attend social gatherings.

**\*1337** \* \* \*

\[Suppression Materials: In his defense, Mr. Geiger is trying to
introduce testimony from five other students, 3 male and 2 female, that
Ms. Smith had a well-deserved reputation for being sexually promiscuous.
This includes one of Ms. Smith\'s best friends who will testify that
before Ms. Smith met her fiance, she \"had trouble remembering what
fraternity house she woke up in each Sunday morning.\" Another witness,
a former roommate of Ms. Smith, will assert that Ms. Smith \"liked to
loosen her inhibitions with a few beers too many and then have rough sex
with the first guy she saw.\" The prosecution has moved to exclude such
evidence on the ground that it violates Arizona\'s \"Rape Shield\"
statute (section 13-1421 of the Arizona Criminal Code) which forbids the
introduction of evidence concerning a victim\'s \"chastity\" or
\"reputation for chastity\" in cases involving sexual assault.

How would you rule?

\_\_\_\_ This testimony is admissible.

\_\_\_\_ This testimony is not admissible.\]

\* \* \*

Mr. Geiger testified in his own defense. He admitted having intercourse
with Ms. Smith, but he contends that she consented to the encounter. He
admitted to having intercourse with seven different women during his
time at college, most of which were one-time encounters at parties. He
denied that he has ever had sex without a woman\'s consent.

Based solely on the evidence admitted at trial, would you find Mr.
Geiger guilty of sexual assault?

Yes No

**\*1338** Assessment of Pain and Suffering Damages

You are presiding over a bench trial in a civil case. The facts are as
follows:

The plaintiff is Bill Post, a single, 35-year-old automobile mechanic.
On February 20, 2001, Mr. Post slipped while operating a riding
\[lawnmower/snowblower\] on a steep driveway. The \[mower/blower\]
tipped onto him, severely damaging his left arm. (Mr. Post is right
handed.) Although the \[mower/blower\] was equipped with a kill-switch
that should have turned the \[mower/blower\] off when it tipped, the
switch malfunctioned.

The manufacturer, \[Lawn/Snow\] King, Inc., admitted that the
kill-switch contained a manufacturing defect and admitted that it was
liable to Mr. Post. The parties settled on amounts for medical expenses
and lost wages, but could not agree on compensatory damages for pain,
suffering, and loss of enjoyment of life. This amount is the only issue
to be resolved at trial.

During the trial, Mr. Post presented testimony from a surgeon about the
three lengthy operations that were required to repair the damage to
Post\'s shoulder and arm, and from a rehabilitation specialist about
Post\'s bi-weekly physical therapy sessions. Both agreed that Mr.
Post\'s condition is unlikely to improve. Although his left arm did not
have to be amputated, the nerves and muscles were so badly damaged that
it is essentially useless.

Mr. Post testified about the incident, as well as about the continuing
pain in his arm, the loss of his job, the frustration of adapting to
life with just one usable arm, and the nature and extent of his pain and
resulting total disability. Among other things, Mr. Post testified that
he had to take prescription narcotic pain medication continuously.

\* \* \*

\[Suppression Materials: During its brief cross-examination of Mr. Post,
\[Lawn/Snow\] King sought to introduce evidence of Post\'s four prior
felony convictions. Specifically, Mr. Post had been convicted of
swindling schemes in which he obtained the life savings of elderly
retirees by falsely promising them exorbitant rates of return, and then
using their money to pay his living expenses. His most recent conviction
was fourteen years ago, and he had spent two years in prison for this
conviction. \[Lawn/Snow\] King concedes that pursuant to Rule **\*1339**
609 of the Arizona Rules of Evidence, the evidence of Post\'s prior
convictions is admissible only to impeach his credibility. Mr. Post
objected to admitting this evidence, even with a limiting instruction.
He contended that \"the probative value of the conviction\" does not
\"substantially outweigh its prejudicial effect\" as required by Rule
609(b) of the Arizona Rules of Evidence (which governs the admission of
criminal convictions more than 10 years old).

How would you rule on the plaintiff\'s objection?

\_\_\_\_\_ Overrule the objection and allow the plaintiff to be
impeached with his prior convictions.

\_\_\_\_\_ Sustain the objection and exclude the evidence of the
plaintiff\'s prior convictions.\]

\* \* \*

\[Lawn/Snow\] King argued that the plaintiff was exaggerating his
injury. The company presented testimony from a physical and occupational
therapist who had treated many people with injuries similar to those
suffered by Mr. Post. This expert testified that such people usually can
control their pain and lead relatively normal lives.

Based solely on the evidence admitted at trial, how much would you award
the plaintiff in compensatory damages?

\$\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**\*1340** Sentencing

Before you for sentencing is Sam Kaiser, who was found guilty of
possession of 150 grams of methamphetamine. The methamphetamine was
found in a jacket pocket after a legal search. At trial, Kaiser argued,
unsuccessfully, that the jacket was not his.

According to the federal sentencing guidelines, possession of 150 grams
of methamphetamine has a base offense level of 26.

Kaiser\'s criminal history includes several convictions for larceny and
a minor drug possession. His total \"criminal history points\" sum to 4,
which puts him in category III for sentencing. Kaiser is 27 years old,
dropped out of high school when he was 17, has never held employment for
very long, is not married, and has no children. He was raised in poverty
by a single mother, who did not appear on his behalf.

At offense level 26 and criminal history category III, the sentencing
guidelines provide for a sentence of between 78 and 97 months.

After Kaiser\'s conviction, he cooperated with the prosecution in
exchange for a recommendation that he be sent to a particular prison.
The prosecution agreed that none of the information he provided would be
used against him as long as he cooperated fully.

\* \* \*

\[Control: Kaiser revealed the name of his supplier, but nothing else of
substance.\]

\* \* \*

\[Suppression: Kaiser revealed that he had helped his 30-year-old cousin
produce methamphetamine in a basement laboratory. Kaiser also revealed
that his cousin had a 15-year-old girlfriend who frequently \"tried
out\" their batches for them.

The prosecution asked that you add 6 levels to Kaiser\'s offense level,
pursuant to the sentencing guidelines, because he had been engaged in
the manufacture of methamphetamine in a fashion that had endangered a
minor. Chapter 2D1.1(b)(4) of the federal sentencing guidelines provides
that if the offense \"created a substantial risk of harm to a minor,
increase by 6 levels.\" This would raise the sentence to level 32. At
offense level 32 and criminal history category III, the sentencing
guidelines provide for a sentence of between 151 and 188 **\*1341**
months. Kaiser\'s attorney argued that the prosecution had agreed not to
use any of the information he provided against him.

Would you enhance the sentence level by 6 levels, as the prosecution
requests?

Yes No\]

\* \* \*

No other circumstances supporting any additional enhancements,
departures, or other adjustments are present.

What should Kaiser\'s sentence consist of?

\_\_\_\_\_ months.

**\*1342** Fourth Amendment Issue (Foresight-Warrant Condition)

\[Foresight: Imagine that you have been asked to issue a telephonic
warrant authorizing Officer John Smoot to search the trunk of a parked
car. Here are the facts:\]

\[Hindsight: Imagine that you have been asked to rule on a motion to
suppress evidence obtained from a warrantless search of the trunk of a
parked car. Here are the facts:\]

Officer Smoot was assigned to patrol public parking areas surrounding an
arena holding a rock and roll concert. While cruising the area, Officer
Smoot noticed a well-dressed man exit a black BMW. The man looked around
nervously, opened his trunk, and fiddled around with something in the
trunk for a few seconds. After closing the trunk and locking the car,
the BMW driver met an apparent friend, bought concert tickets at the
ticket window, and entered the arena to attend the concert.

About 30 minutes later, Officer Smoot drove past the BMW again and
noticed that the driver\'s side window was open. Officer Smoot assumed
the driver wouldn\'t return to his car until the concert ended in two or
three hours, but he wasn\'t entirely sure of this. Concerned that the
car might be easy prey for an enterprising car thief, Officer Smoot
parked his patrol car, got out, and went over to the BMW to roll up the
window.

Upon arriving at the BMW, Officer Smoot smelled something that he
believed, based on a demonstration at a training session several years
earlier, to be burnt methamphetamine. He looked inside the car and
didn\'t see any drugs, but he did notice some Visine, a local map, and a
couple of empty beer cans.

\[Hindsight: Based on these observations, Officer Smoot believed that
there was probable cause to search the trunk of the car. He opened the
trunk and found 10 pounds of methamphetamine, other drug paraphernalia,
and a gun that had recently been fired. Following the concert, one of
Officer Smoot\'s colleagues arrested the BMW driver when he returned to
his car.\]

\[Foresight: Based on these observations, Officer Smoot believes there
is probable cause to search the trunk of this car and has asked you to
issue a telephonic warrant authorizing the search. Will you issue the
warrant?

\_\_\_\_\_ Yes, there is probable cause for the search; I would issue
the warrant.

**\*1343** \_\_\_\_\_ No, there is not probable cause for the search; I
would not issue the warrant.\]

\[Hindsight: Subsequent investigative work revealed that the driver\'s
fingerprints were on the gun and that this gun had been used earlier in
the day to kill a suspected drug dealer living on the other side of the
city. The BMW driver is now being prosecuted for murder, unlawful
possession of a firearm, and several drug violations.

His defense attorney has filed a motion to suppress the evidence
obtained from the trunk on the ground that there was no probable cause
to conduct the search. Will you allow the evidence to be admitted?

\_\_\_\_\_ Yes, there was probable cause for the search; I would admit
the evidence.

\_\_\_\_\_ No, there was not probable cause for the search; I would not
allow the evidence to be admitted.\]

**\*1344** Evaluation of a Robbery Trial

Mr. Jones is on trial for armed robbery. Concerned that he is a member
of a small minority in the community and will face an unsympathetic
jury, Mr. Jones has waived his right to a jury trial. You are thus
presiding in a bench trial. The following summarizes the evidence
presented at trial:

In the late evening, an armed assailant wearing jeans, a white t-shirt,
a ski mask, and black gloves entered a 7-11 and demanded that the
cashier put money in a plastic shopping bag. The cashier complied,
quickly emptying roughly \$200 into the bag. The cashier was the only
other person in the store at the time. The robbery was captured on a
surveillance camera videotape.

When police arrived, the cashier gave a brief description of the
suspect. The cashier reported that once outside the store, the
perpetrator pulled off his ski mask, discarding both it and a gun as he
climbed quickly into a white Ford Taurus and sped off. The cashier
stated that he thought that the last two digits of the car\'s Arizona
license plate were \"GB\" . Police retrieved the gun and mask; neither
had usable fingerprints. The gun had been reported stolen several years
earlier by its original owner, who is now deceased.

Several police officers then began a search of the neighborhood for a
white Ford Taurus. Two hours after the crime, they found one, parked 10
blocks from the crime scene. The last two digits of the license plate
were \"C8.\" Department of Motor Vehicle records identified the owner as
the defendant. The police knocked on the door to his apartment. The
defendant matched the height, weight and race of the perpetrator in the
surveillance videotape, and was wearing jeans and a white t-shirt. The
police then insisted that the defendant accompany them to the
station-house to answer questions, which he did.

Upon arrival, the police led him to a room, locked the door, read him
his Miranda rights, and began interrogating him. The defendant reported
that he had been home alone all evening. The police allowed the cashier
to listen in from the next room. The cashier reportedly said \"that
sounds like the guy.\" The police then placed the defendant under
arrest. They obtained a search warrant and searched his apartment. They
found shopping bags similar to the one used by the perpetrator of the
crime and a pair of black gloves. The defendant also had several hundred
dollars in cash in his wallet. The police did not find firearms or
ammunition of any kind.

**\*1345** \[Control condition: The police continued questioning the
defendant, but he requested a lawyer and the interrogation ended.\]

\[Suppression condition: The police continued questioning the defendant.
Even though the defendant clearly requested a lawyer, twice, the police
refused to call one and continued the interrogation. Two hours later,
the defendant confessed, and agreed to write out a description of the
crime. His written description matched the events perfectly, including
the fact that he discarded the ski mask and gun outside the store (which
the police had not told him).

The defendant\'s attorney has moved to suppress the confession, arguing
that the interrogation violated the defendant\'s rights under Miranda by
continuing after the defendant had requested an attorney. Would you
grant the motion and suppress the evidence?

Yes No\]

Based solely on the evidence admitted at trial, would you convict the
defendant?

Yes No

\[FNd1\]. Magistrate Judge, United States District Court, Central
District of California.

\[FNdd1\]. Associate Dean for Academic Affairs & Professor of Law,
Vanderbilt University Law School.

\[FNddd1\]. Professor of Law, Cornell Law School. The views expressed in
this Article are solely those of the authors. We are grateful to the
judges who participated in our research. We appreciate comments from
participants in faculty workshops at the University of Alabama School of
Law, Cornell Law School, University of Florida Law School, University of
Kansas Law School, Loyola-Los Angeles School of Law, Northwestern
University Law School, Pepperdine Law School, University of Texas School
of Law, University of Virginia Law School, and Yale Law School.
Additionally, we appreciate the feedback we have received on earlier
drafts from Kevin Clermont, Dan Filler, Tracey George, Andy Koppelman,
Jim Lindgren, Janice Nadler, and Emerson Tiller. We thank the students
in Rachlinski\'s Procedure class at Yale Law School for their insights
on the rape-shield scenario. Special thanks also to Nancy Stebly for
sharing the results of her exhaustive review of jurors\' ability to
disregard inadmissible evidence. For library support, we thank Jim
McMasters of the Northwestern University Law Library and Michael Jackson
and Heather Whiteside of the Vanderbilt University Law Library.

\[FN1\]. See, e.g., Mirjan R. Damaska, Evidence Law Adrift 149 (1997)
(noting the \"striking emphasis on the screening of information to be
submitted to triers of fact\").

\[FN2\]. See Orie L. Phillips, A Symposium On Evidence: Foreword, 5
Vand. L. Rev. 275, 275 (1952) (\"\'Evidence\' imports the means by which
any alleged matter of fact, the truth of which is submitted to
investigation, is established or disproved. It embraces the rules of law
governing the admissibility or rejection of proffered proof and the
weight to be given to proof that is admitted.\" (footnote omitted)).

\[FN3\]. See McCormick\'s Handbook of the Law of Evidence § 51, at 109
n.1 (Edward W. Cleary ed., 2d ed. 1972) \[hereinafter McCormick\'s
Handbook\] (\"The fact issues at the trial should be decided upon the
facts \'in the record,\' i. e. \[sic\], facts officially introduced in
accordance with the rules of practice, and facts which the court may
judicially notice.\").

\[FN4\]. See Goldberg v. Kelly, 397 U.S. 254, 271 (1970) (\"\[T\]he
decisionmaker\'s conclusion\... must rest solely on the legal rules and
evidence adduced at the hearing.\").

\[FN5\]. Trial verdicts, however, are seldom reversed due to evidentiary
error. See Margaret A. Berger, When, If Ever, Does Evidentiary Error
Constitute Reversible Error?, 25 Loy. L.A. L. Rev. 893, 894-96 (1992)
(finding that in 1990\--a time when the federal district courts
conducted about 20,000 criminal and civil bench and jury trials a
year\--only thirty trial verdicts were reversed for evidentiary error:
sixteen for erroneous admission and fourteen for erroneous exclusion).

\[FN6\]. See, e.g., Fed. R. Evid. 401 (defining relevant evidence).
Evidence rules also exclude irrelevant information. Id. 402.

\[FN7\]. Damaska, supra note 1, at 14.

\[FN8\]. See Fed. R. Evid. 403 (excluding relevant evidence on grounds
of prejudice, confusion, or waste of time).

\[FN9\]. Damaska, supra note 1, at 12.

\[FN10\]. Fed. R. Evid. 408; see also id. 410 (excluding guilty pleas).
Rule 408 actually is a hybrid. Evidence of settlement offers is
excludable for two reasons: \"(1) The evidence is irrelevant, since the
offer may be motivated by a desire for peace rather than from any
concession of weakness of position,\" and \"(2) \... promotion of the
public policy favoring the compromise and settlement of disputes.\" Fed.
R. Evid. 408 advisory committee\'s note. Because the latter is described
as \"a more consistently impressive ground,\" id., Rule 408 is best
placed in the extrinsic category.

\[FN11\]. See Fisher v. United States, 425 U.S. 391, 403 (1976) (noting
that the attorney-client privilege \"has the effect of withholding
relevant information from the factfinder\").

\[FN12\]. See J. Alexander Tanford, The Law and Psychology of Jury
Instructions, 69 Neb. L. Rev. 71, 76-78 (1990) (distinguishing between
\"admonitions\" to disregard evidence and \"limiting instructions\" to
confine evidence to its proper scope).

\[FN13\]. United States v. Kilcullen, 546 F.2d 435, 447 (1st Cir. 1976);
see also Carter v. Kentucky, 450 U.S. 288, 301, 303 (1981) (claiming
that an instruction to disregard inadmissible testimony is a \"powerful
tool\" that can be used \"to remove from the jury\'s deliberations any
influence of unspoken adverse inferences\" (internal quotation marks
omitted)); United States v. Gomez-Pabon, 911 F.2d 847, 858 (1st Cir.
1990) (\"There is ordinarily a presumption that a jury will follow such
curative instructions. This presumption will be defeated only if there
is an overwhelming probability that the jury will \... be unable to
follow the court\'s instructions, and a strong likelihood that the
effect would be devastating to the defendant.\" (internal quotation
marks omitted) (omission in original)); United States v. Steele, 727
F.2d 580, 588 (6th Cir. 1984) (\"\[T\]he subsequent striking of
erroneously admitted evidence accompanied by a clear and positive
instruction to the jury to disregard cures the error.\").

\[FN14\]. Damaska, supra note 1, at 50.

\[FN15\]. Krulewitch v. United States, 336 U.S. 440, 453 (1949)
(Jackson, J., concurring).

\[FN16\]. Leighton Bledsoe, Jury or Nonjury Trial\--A Defense Viewpoint,
5 Am. Jur. Trials § 12, at 123, 137 (1966).

\[FN17\]. Nash v. United States, 54 F.2d 1006, 1007 (2d Cir. 1932).
Damaska elaborates on this as follows:

Consider the cognitive premises of limited admissibility rules, for
example. When jurors are told to use a piece of evidence for a narrow
inferential purpose, the successful completion of this task often calls
for sophisticated mental operations. Preventing one\'s inference from
overflowing into legally forbidden territory can even be a real
psychological feat\--if it is psychologically possible at all. One of
the most obvious examples is the demand that a defendant\'s criminal
record be used only as it affects the credibility of his in-court
testimony. To prevent the ripple effects of this information from
producing a broader probative impact on belief formation presupposes
remarkable self-control and intellectual delicacy. Not much less
sophistication is needed to consider an item of information only for the
purpose of determining whether it was made (rather than also for its
truth) or to employ a piece of information only with regard to one of
several joint charges arising from a single event.

Damaska, supra note 1, at 33.

\[FN18\]. See, e.g., Paul Bergman, Admonishing Jurors to Disregard What
They Haven\'t Heard, 25 Loy. L.A. L. Rev. 689, 691 (1992) (\"The
effectiveness of admonitions to control juror behavior is open to
question.\"); Tanford, supra note 12, at 86 (\"Admonitions\... are
difficult for jurors to understand\....\").

\[FN19\]. See, e.g., Robert E. Keeton, Trial Tactics and Methods § 4.18,
at 204 (2d ed. 1973) (explaining that the serious disadvantage of
requesting an instruction telling the jury to disregard evidence in
considering a particular issue is that \"it calls to the jury\'s
attention your recognition of the relevance of the evidence to the very
issue on which you are seeking to avoid their considering it\");
Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 41, at
224 (2d ed. 1994) (explaining that requiring the party seeking to limit
the use of evidence to request a limiting instruction \"appropriately
leaves to the opposing trial counsel the option of concluding that\...
he is better off without an instruction\... \[as it\] would serve only
to remind the jury of what it has heard\... and\... to suggest\... a use
for the evidence which is best left unmentioned\"); Dennis J. Devine,
Laura D. Clayton, Benjamin B. Dunford, Rasmy Seying & Jennifer Payne,
Jury Decision Making: 45 Years of Empirical Research on Deliberating
Groups, 7 Psychol. Pub. Pol\'y & L. 622, 666 (2001) (\"In general,
limiting instructions have proven to be ineffective and have even been
associated with a paradoxical increase in the targeted behavior.\");
Tanford, supra note 12, at 86 (\"Admonishing jurors often provokes the
opposite of the intended effect.\").

\[FN20\]. See United States v. Delli Paoli, 229 F.2d 319, 321 (2d Cir.
1956) (commenting that it might be \"extreme\" to say that nobody can
control his reasoning and avoid considering relevant evidence he is told
to disregard, but observing that \"relatively few persons\" can do so
because \"it does a violence to all our habitual ways of thinking,\" and
commenting that limiting instructions are a \"placebo\" in the context
of coconspirator hearsay admitted against the speaker and that such
instructions should not be \"the final measure of protection\" for
defendants), aff\'d, 352 U.S. 232 (1957), overruled in part by Bruton v.
United States, 391 U.S. 123 (1968) (concluding that such limiting
instructions are inadequate protection for defendants); see also Jon
Elster, Sour Grapes: Studies in the Subversion of Rationality 47 (1983)
(arguing that \"it is inherently impossible to will an empty mind\").

\[FN21\]. See, e.g., Gentile v. State Bar, 501 U.S. 1030, 1077 (1991)
(Rehnquist, C.J., dissenting in part) (\"\[T\]rial judges often have
access to inadmissible and highly prejudicial information and are
presumed to be able to discount or disregard it.\"); Harris v. Rivera,
454 U.S. 339, 346 (1981) (per curiam) (\"In bench trials, judges
routinely hear inadmissible evidence that they are presumed to ignore
\.... It is equally routine for them to instruct juries that no adverse
inference may be drawn from a defendant\'s failure to testify\...
presum\[ably\] they follow their own instructions when they are acting
as factfinders.\"); State v. Garcia, 397 P.2d 214, 216 (Ariz. 1964)
(holding that in criminal cases, as in civil cases, the court will not
consider improper admission of evidence as error on appeal from a bench
trial \"because of the presumption that the trial judge disregarded all
inadmissible evidence in reaching his decision\"); Peterson v. State, 61
N.W.2d 263, 265 (Neb. 1953) (\"The rule which this court applies in
reviewing a finding of a trial court, in either a civil or a criminal
case, \... is that it is presumed that improper evidence taken under
objection was given no weight in reaching the final conclusion unless
the contrary appears.\" (quoting Birmingham v. State, 279 N.W. 15, 17
(Wis. 1938)); Commonwealth v. Davis, 421 A.2d 179, 183 n.6 (Pa. 1980)
(\"A judge, as factfinder, is presumed to disregard inadmissible
evidence and consider only competent evidence.\"); Commonwealth v.
Glover, 405 A.2d 945, 947 (Pa. Super. Ct. 1979) (per curiam) (concluding
that a judge \"must be presumed to be able to disregard inflammatory
evidence\"). The assumption that judges can ignore inadmissible
information indirectly colors our expectations of lawyers, in addition
to judges. See State v. Moreland, No. 83977, 2004 WL 2829015, at \*3
(Ohio Ct. App. Dec. 9, 2004) (holding that failure to object to evidence
during a bench trial in a criminal case was not ineffective assistance
of counsel because \"defense counsel could reasonably assume that the
judge would be unaffected by any inflammatory evidence and would
disregard any irrelevant evidence\").

\[FN22\]. See Fed. Judicial Ctr., Manual for Complex Litigation (Fourth)
§ 11.431, at 64 (2004) (arguing that judges are good at ignoring
inadmissible materials because they are \"accustomed to reviewing
matters that may not be admissible\"); Mueller & Kirkpatrick, supra note
19, § 3, at 10 (\"\[I\]t is realistic to suppose that judges can do
better than juries in relying on what is admissible and ignoring what is
not.\"); A. Leo Levin & Harold K. Cohen, The Exclusionary Rules in
Nonjury Criminal Cases, 119 U. Pa. L. Rev. 905, 916 (1971) (dismissing
the idea \"that the rule of admissibility in the nonjury case should be
precisely identical\" to the rule of admissibility in the case tried to
a jury, since \"\[f\]eats of discrimination are expected of the jurors
and it is not unreasonable to allow an added measure of tolerance where
it is the judge who will be weighing the evidence\").

\[FN23\]. Based upon the assumption that the greater training and
experience of trial judges immunize them against mistakes to which
jurors may be susceptible, some courts have stated that the rules of
evidence apply less strictly in bench trials than in jury trials. See,
e.g., Smith v. Mitchell, 348 F.3d 177, 206 (6th Cir. 2003) (\"\[T\]he
argument was to a three-judge panel, so any inflammatory effect was de
minimis\....\"); Walker v. NationsBank of Fla. N.A., 53 F.3d 1548, 1554
(11th Cir. 1995) (noting that for certain types of evidence, courts
apply a more \"liberal admissibility rule\" in bench trials than in jury
trials, and adding that \"the distinction between a bench and a jury
trial may affect\" the analysis of whether relevant information should
be excluded under Rule 403); see also McCormick\'s Handbook, supra note
3, § 60, at 137 (\"It might have been more expedient if these rules \[of
evidence\] had been, at least in the main, discarded in trials before
judges. Their professional experience in valuing evidence greatly
lessens the need for exclusionary rules.\" (footnote omitted)); Mueller
& Kirkpatrick, supra note 19, § 3, at 9-10 (explaining that, although
\"\[t\]he Federal Rules of Evidence apply alike in cases tried to courts
and cases tried to juries,\" judges in bench-tried cases \"usually apply
the Rules with less rigor and let in more evidence\"); Levin & Cohen,
supra note 22, at 905 (\"It should occasion no surprise that the vast
welter of doctrine which has become our law of evidence is not applied
with equal rigor when a judge rather than a jury sits as trier of the
fact.\"); John MacArthur Maguire & Charles S.S. Epstein, Rules of
Evidence in Preliminary Controversies as to Admissibility, 36 Yale L.J.
1101, 1116-17 (1927) (observing that the willingness of some courts to
indulge the presumption that judges always weigh evidence in accordance
with the law has meant that the trial judge is bound \"somewhat less
finically\" by the evidence rules).

\[FN24\]. Levin & Cohen, supra note 22, at 906.

\[FN25\]. See, e.g., Kenneth Culp Davis, An Approach to Rules of
Evidence for Nonjury Cases, 50 A.B.A. J. 723, 725 (1964) (proposing that
the evidence rules designed to guide juries should give way to enlarged
discretion and broad standards for bench trials); Kenneth Culp Davis,
Hearsay in Nonjury Cases, 83 Harv. L. Rev. 1362, 1363 (1970) (arguing
that judges should be allowed to admit hearsay in nonjury cases without
ruling on its admissibility and, in some cases, base findings on such
evidence); G.D. Nokes, The English Jury and the Law of Evidence, 31 Tul.
L. Rev. 153, 171 (1956) (supporting legislation in England that
distinguishes between bench and jury trials in determining the
admissibility of hearsay, and urging abolition of the rule against
hearsay in civil bench trials). See generally F.R. Lacy, \"Civilizing\"
Nonjury Trials, 19 Vand. L. Rev. 73 (1965) (contending that it would be
feasible to establish separate procedural rules for bench and jury
trials).

\[FN26\]. See, e.g., United States ex rel. Spears v. Rundle, 268 F.
Supp. 691, 696 (E.D. Pa. 1967) (stating that it is \"impossible\" for a
judge to \"objectively and reliably determine that the \[defendant\'s
allegedly involuntary\] confession was voluntary after considering his
guilt\"), aff\'d, 405 F.2d 1037 (3d Cir. 1969) (per curiam); id. at 695
(\"\[The task of deliberately disregarding\] \"becomes too great when we
require a judge who has heard evidence of guilt, to objectively and
coldly assess a distinct issue as to the voluntariness of the
confession. Objectivity cannot be guaranteed, and reliability must be
questioned.\"); United States ex rel. Owens v. Cavell, 254 F. Supp. 154,
154 (M.D. Pa. 1966) (questioning, in a case where an allegedly
involuntary confession was admitted into evidence, \"whether a judge
sitting as fact-finder would be able to pass on guilt or innocence
without being influenced by evidence relating to the voluntariness
issue\", cited in Rundle, 268 F. Supp. at 695-96; State v. Hutchinson,
271 A.2d 641, 644 (Md. 1970) (acknowledging that \"judges, being flesh
and blood, are subject to the same emotions and human frailties as
affect other members of the specie \[sic\],\" but going on to state that
a judge, due to \"his legal training, traditional approach to problems,
and the very state of the art of his profession,\" and his ability \"to
perceive, distinguish and interpret the nuances of the law,\" is
nevertheless fortified against those frailties).

\[FN27\]. See, e.g., Damaska, supra note 1, at 50 (\"\[T\]he juryless
court is a unitary tribunal: the admissibility of evidence is decided
here by the ultimate fact finder, who inevitably comes into contact with
tainted information. And when this information is persuasive, the
professional judge has as much trouble ignoring the acquired knowledge
as do amateur adjudicators.\"); Bledsoe, supra note 16, § 12, at 137
(questioning \"whether anyone can \'unring the bell\' once it is
heard,\" that is, whether a judge can \"persuade himself not to be
influenced by facts which the law in its wisdom, gained from long
experience over the centuries, has decreed should not be heard by the
trier of facts,\" and opining that \"unfavorable evidence thus received
probably does exert an undesirable influence on the court as trier of
the facts\"); Levin & Cohen, supra note 22, at 910 (recognizing that
\"it would be wrong to assume a priori that a judge would be immune from
prejudice\" from inadmissible information); Maguire & Epstein, supra
note 23, at 1115 (explaining that some incompetent evidence may affect
judges because \"\[n\]ature does not furnish a jurist\'s brain with
thought-tight compartments to suit the convenience of legal theory, and
convincing evidence once heard does leave its mark\").

\[FN28\]. 341 F.3d 1082, 1121 (9th Cir. 2003) (en banc), rev\'d sub nom.
Schriro v. Summerlin, 124 S. Ct. 2519 (2004).

\[FN29\]. 536 U.S. 584 (2002).

\[FN30\]. 341 F.3d at 1113 (quoting Harry Kalven, Jr. & Hans Zeisel, The
American Jury 127 (1966)). The Supreme Court\'s reversal of the Ninth
Circuit decision arose, in part, from the conclusion that judicial fact
finding does not \"seriously diminish\[\]\" the accuracy of the
sentencing process. 124 S. Ct. at 2525 (emphasis omitted). The majority
did not directly address the issue of whether judges can ignore
inadmissible information, instead relying on the casual observation that
\"for every argument why juries are more accurate factfinders, there is
another why they are less accurate.\" Id. For the majority, the most
notable argument for the superiority of judges is judges\' experience
and understanding of the law. Id.

\[FN31\]. In re Cheney, 334 F.3d 1096 (D.C. Cir. 2003), vacated by
Cheney v. United States Dist. Court, 124 S. Ct. 2576 (2004).

\[FN32\]. See David G. Savage, Trip with Cheney Puts Ethics Spotlight on
Scalia, L.A. Times, Jan. 17, 2004, at A1 (noting that the \"longtime
friends\" spent time hunting together just three weeks after the Court
agreed to hear Cheney\'s appeal).

\[FN33\]. Id.

\[FN34\]. See Judith Resnik, Managerial Judges, 96 Harv. L. Rev. 374,
376- 77 (1982) (describing the \"managerial\" approach\" that a growing
number of judges have adopted, whereby judges not only adjudicate claims
but also actively shape litigation, supervise case preparation, and
influence results).

\[FN35\]. See Hollyn M. Johnson, Processes of Successful Intentional
Forgetting, 116 Psychol. Bull. 274, 274 (1994) (noting that the
\"success of intentional forgetting depends on how one originally
encoded the to-be-forgotten information\").

\[FN36\]. See, e.g., Jonathan M. Golding & Debra L. Long, There\'s More
to Intentional Forgetting than Directed Forgetting: An Integrative
Review, in Intentional Forgetting: Interdisciplinary Approaches 59, 93
(Jonathan M. Golding & Colin M. MacLeod eds., 1998) (reporting that
\"there is no consensus on the mechanisms that affect intentional
forgetting\").

\[FN37\]. For a different taxonomy of the theoretical explanations for
this phenomenon, see Richard M. Wenzlaff & Daniel M. Wagner, Thought
Suppression, 51 Ann. Rev. Psychol. 59, 66-69 (2000).

\[FN38\]. See Jack W. Brehm, A Theory of Psychological Reactance 18
(1966) ( \"\[I\]f a specific behavioral freedom of a person is
eliminated by impersonal events, he will experience reactance and
consequently will see increased attractiveness in the eliminated
behavior.\" (emphasis omitted)). See generally Sharon S. Brehm & Jack W.
Brehm, Psychological Reactance: A Theory of Freedom and Control (1981)
(reviewing the theory of psychological reactance).

\[FN39\]. Jennifer K. Robbennolt & Christina A. Studebaker, Anchoring in
the Courtroom: The Effects of Caps on Punitive Damages, 23 Law & Hum.
Behav. 353, 356 (1999).

\[FN40\]. See, e.g., Jack W. Brehm, Lloyd K. Stires, John Sensenig &
Janet Shaban, The Attractiveness of an Eliminated Choice Alternative, 2
J. Experimental Soc. Psychol. 301, 306 (1966) (reporting results of an
experiment indicating that when a particular choice of a selection of
music was suddenly eliminated from the options available, it became more
attractive).

\[FN41\]. Melvin L. Snyder & Robert A. Wicklund, Prior Exercise of
Freedom and Reactance, 12 J. Experimental Soc. Psychol. 120, 122-23
(1976).

\[FN42\]. See Shari Seidman Diamond & Neil Vidmar, Jury Room Ruminations
on Forbidden Topics, 87 Va. L. Rev. 1857, 1865 (2001) (explaining that
reactance theory posits that \"jurors see the admonition as an attempt
to restrict their freedom to weigh and evaluate probative evidence in
reaching their verdict\").

\[FN43\]. Id.; see also Joel D. Lieberman & Jamie Arndt, Understanding
the Limits of Limiting Instructions: Social Psychological Explanations
for the Failures of Instructions to Disregard Pretrial Publicity and
Other Inadmissible Evidence, 6 Psychol. Pub. Pol\'y & L. 677, 703 (2000)
(\"It may frequently be that jurors are motivated to maintain their
freedom, and thus the ineffectiveness of limiting instructions can be
explained by the provocation of reactance.\").

\[FN44\]. Daniel M. Wegner, Ironic Processes of Mental Control, 101
Psychol. Rev. 34, 34 (1994).

\[FN45\]. See id. (describing the difficulty people experience when
trying to suppress thoughts).

\[FN46\]. Id.

\[FN47\]. Daniel M. Wegner & Ralph Erber, The Hyperaccessibility of
Suppressed Thoughts, 63 J. Personality & Soc. Psychol. 903, 908 (1992).

\[FN48\]. Anita E. Kelly & Margaret M. Nauta, Reactance and Thought
Suppression, 23 Personality & Soc. Psychol. Bull. 1123, 1123 (1997)
(emphasis omitted).

\[FN49\]. Daniel M. Wegner, David J. Schneider, Samuel R. Carter III &
Teri L. White, Paradoxical Effects of Thought Suppression, 53 J.
Personality & Soc. Psychol. 5 (1987) (discussing an experiment in which
students were \"randomly assigned to one of two experimental conditions,
an initial suppression condition or an initial expression condition\"
(emphases omitted)).

\[FN50\]. Id. at 6-7.

\[FN51\]. Id. at 7.

\[FN52\]. See Lang v. Kohl\'s Food Stores, Inc., 217 F.3d 919, 927 (7th
Cir. 2000) (comparing a hypothetical judicial instruction ordering
jurors to disregard a report to \"telling the jurors that for the
remainder of the trial none of them was allowed to say the word
\'rhinoceros\' to himself\").

\[FN53\]. According to the Seventh Circuit:

We do not pretend that a jury can keep one inference in mind without
thinking about the other. An instruction told the jury to do this, but
this is like telling someone not to think about a hippopotamus. To tell
someone not to think about the beast is to assure at least a fleeting
mental image. So it is here. Each juror must have had both the
legitimate and the forbidden considerations somewhere in mind, if only
in the subconscious.

United States v. DeCastris, 798 F.2d 261, 264-65 (7th Cir. 1986)
(footnote omitted). The court went on to describe the unwelcome
consequences of admitting evidence of other wrongs because the \"bad
character\" inference is frequently inseparable from the \"bad intent\"
inference. Id.

\[FN54\]. See Daniel T. Gilbert, Inferential Correction, in Heuristics
and Biases: The Psychology of Intuitive Judgment 167, 180 (Thomas
Gilovich, Dale Griffin & Daniel Kahneman eds., 2002) (\"\[Descartes\]
was the first to suggest that understanding and believing are separate
and sequential psychological operations.\"); see also Daniel T. Gilbert,
How Mental Systems Believe, 46 Am. Psychologist 107, 108 (1991)
(describing Descartes\' philosophy).

\[FN55\]. See Gilbert, Inferential Correction, supra note 54, at 180
(\"\[Spinoza\] argued that understanding and believing are a single
mental operation. \[He\] suggested that human beings believe assertions
as part of understanding them, and that they then \'unbelieve\' those
assertions that are found to be at odds with other established
facts.\"); see also Gilbert, How Mental Systems Believe, supra note 54,
at 108 (describing Spinoza\'s philosophy).

\[FN56\]. Timothy D. Wilson, David B. Centerbar & Nancy Brekke, Mental
Contamination and the Debiasing Program, in Heuristics & Biases, supra
note 54, at 185, 185; see also Timothy D. Wilson & Nancy Brekke, Mental
Contamination and Mental Correction: Unwanted Influences on Judgments
and Evaluations, 116 Psychol. Bull. 117, 117 (1994) (describing \"mental
contamination\").

\[FN57\]. Wilson, Centerbar & Brekke, supra note 56, at 185.

\[FN58\]. See id. (\"\[P\]eople have poor access to the processes by
which they form their judgments\....\").

\[FN59\]. Id. at 196.

\[FN60\]. See John D. Bransford & Marcia K. Johnson, Contextual
Prerequisites for Understanding: Some Investigations of Comprehension
and Recall, 11 J. Verbal Learning & Verbal Behav. 717, 718-22 (1972)
(concluding that contextual information impacts the interpretation of
new information).

\[FN61\]. Id. at 722.

\[FN62\]. S.E. Asch, Forming Impressions of Personality, 41 J. Abnormal
& Soc. Pscyhol. 258 (1946).

\[FN63\]. Id. at 270 (emphasis added).

\[FN64\]. Id. (emphasis added).

\[FN65\]. See Seymour Rosenberg & Karen Olshan, Evaluative and
Descriptive Aspects in Personality Perception, 16 J. Personality & Soc.
Psychol. 619, 619- 21 (1970) (reviewing studies of halo effects in
judgments of character).

\[FN66\]. See generally Lee Ross, Mark R. Lepper & Michael Hubbard,
Perseverance in Self-Perception and Social Perception: Biased
Attributional Processes in the Debriefing Paradigm, 32 J. Personality &
Soc. Psychol. 880 (1975). Another way of thinking about this phenomenon
is that once individuals encounter information, it may become part of a
\"schema\" or organizing principle that influences how they subsequently
evaluate additional information.

\[FN67\]. See Saul M. Kassin & Christina A. Studebaker, Instructions to
Disregard and the Jury: Curative and Paradoxical Effects, in Intentional
Forgetting, supra note 36, at 413, 415 (\"\[I\]nstructions to disregard
may fail when the discredited information has already activated the
formation of a theory or explanatory structure.\").

\[FN68\]. Ross, Lepper & Hubbard, supra note 66, at 884-88.

\[FN69\]. Jonathan M. Golding & Jerry Hauselt, When Instructions to
Forget Become Instructions to Remember, 20 Personality & Soc. Psychol.
Bull. 178, 180 (1994).

\[FN70\]. Id. at 182 tbl.1.

\[FN71\]. Id.

\[FN72\]. Id. at 181.

\[FN73\]. Id. at 182 tbl.1.

\[FN74\]. Id. at 181.

\[FN75\]. Id. at 182 tbl.1.

\[FN76\]. See Bransford & Johnson, supra note 60, at 717-18 (relating
the influence of deep structure and integration of experiences on
comprehension of a sentence).

\[FN77\]. See generally Jeffrey J. Rachlinski, A Positive Psychological
Theory of Judging in Hindsight, 65 U. Chi. L. Rev. 571 (1998)
(explaining the hindsight bias and its presence in the legal system).

\[FN78\]. Stephan Landsman & Richard F. Rakos, A Preliminary Inquiry
into the Effects of Potentially Biasing Information on Judges and Jurors
in Civil Litigation, 12 Behav. Sci. & L. 113 (1994) (discussed infra
notes 116-17 and accompanying text).

\[FN79\]. Dale W. Broeder, The University of Chicago Jury Project, 38
Neb. L. Rev. 744, 753-54 (1959).

\[FN80\]. Id. at 754.

\[FN81\]. Id.

\[FN82\]. Id.

\[FN83\]. Id.

\[FN84\]. Whether damage awards would be unfairly high if jurors were
informed that the defendant had insurance, or whether they would be
unfairly low if they were not so informed, is a separate issue. For
present purposes it suffices to point out that concealing the
defendant\'s insurance coverage does tend to reduce damage awards,
whether for good or for ill.

\[FN85\]. Broeder, supra note 79, at 754.

\[FN86\]. Saul M. Kassin & Samuel R. Sommers, Inadmissible Testimony,
Instructions to Disregard, and the Jury: Substantive Versus Procedural
Considerations, 23 Personality & Soc. Psychol. Bull. 1046, 1047-53
(1997).

\[FN87\]. Id. at 1049.

\[FN88\]. Id.

\[FN89\]. Id.

\[FN90\]. Id.

\[FN91\]. See supra notes 79-83 and accompanying text.

\[FN92\]. But see Kerri L. Pickel, Inducing Jurors to Disregard
Inadmissible Evidence: A Legal Explanation Does Not Help, 19 L. & Hum.
Behav. 407, 415 (1995) (concluding that a legal explanation did not help
jurors disregard inadmissible evidence).

\[FN93\]. See supra notes 79-85 and accompanying text (describing this
experiment). For other studies documenting the boomerang effect, see
Russell D. Clark, III, The Role of Censorship in Minority Influence, 24
Eur. J. Soc. Psychol. 331, 335-36 (1994) (supporting experimentally the
proposition that attempts to censor a minority message will actually
increase the influence of that minority); Michele Cox & Sarah Tanford,
Effect of Evidence and Instructions in Civil Trials: An Experimental
Investigation of Rules of Admissibility, 4 Soc. Behav. 31, 46 (1989)
(demonstrating that for \"limited use evidence\... the limiting
instruction \[may\] produce\[\] a \'backfire\' effect, in that judgments
were actually harsher with instructions than without\"); Richard F.
Rakos & Stephan Landsman, Researching the Hearsay Rule: Emerging
Findings, General Issues, and Future Directions, 76 Minn. L. Rev. 655,
661-62 (1992) (finding that mock jurors disregarded specific hearsay
despite being told to consider it, but with a limiting instruction);
John C. Reinard & Rodney A. Reynolds, The Effects of Inadmissible
Testimony Objections and Rulings on Jury Decisions, 15 J. Am. Forensic
Ass\'n 91, 98 (1978) (finding that jurors only considered the
inadmissible testimony when an objection was made, regardless of whether
it was sustained or not); Sarah Tanford & Michele Cox, The Effects of
Impeachment Evidence and Limiting Instructions on Individual and Group
Decision Making, 12 Law & Hum. Behav. 477, 484-85 (1987) (noting that
limiting instructions directing jurors not to consider a past perjury
conviction when assigning blame actually resulted in more assignment of
blame than when no limiting instruction was given).

\[FN94\]. See, e.g., A.N. Doob & H.M. Kirshenbaum, Some Empirical
Evidence on the Effects of S. 12 of the Canada Evidence Act upon an
Accused, 15 Crim. L.Q. 88, 94-95 (1972) (finding that the judge\'s
instructions to limit the use of previous conviction evidence \"had no
effect whatsoever on the decisions of the \[test\] subjects\"); Edith
Greene & Mary Dodge, The Influence of Prior Record Evidence on Juror
Decision Making, 19 Law & Hum. Behav. 67, 73 (1995) ( \"Apparently,
jurors\' use of information about a defendant\'s legal history was not
affected by instructions on the appropriate use of that information.\");
Edith Greene & Elizabeth Loftus, When Crimes Are Joined at Trial, 9 Law
& Hum. Behav. 193, 203-04 (1985) (finding that a limiting instruction
had no significant effect on the jury, except to \"lower \[the\]
guiltiness rating on a lesser included offense\"); Saul M. Kassin &
Lawrence S. Wrightsman, Coerced Confessions, Judicial Instruction, and
Mock Juror Verdicts, 11 J. Applied Soc. Psychol. 489, 494-95 (1982)
(\"\[T\]he instruction manipulation had no effect on verdicts.\");
Gregory E. Lenehan & Patrick O\'Neill, Reactance and Conflict as
Determinants of Judgment in a Mock Jury Experiment, 11 J. Applied Soc.
Psychol. 231, 237 (1981) (finding that when the judge gave a limiting
instruction on evidence relating to an inconsequential witness, the
limiting instruction had no effect); Angela Paglia & Regina A. Schuller,
Jurors\' Use of Hearsay Evidence: The Effects of Type and Timing of
Instructions, 22 Law & Hum. Behav. 501, 512 (1998) (finding only
marginal differences in results whether or not hearsay instructions were
given); Stanley Sue, Ronald E. Smith & Renee Gilbert, Biasing Effects of
Pretrial Publicity on Judicial Decisions, 2 J. Crim. Just. 163, 168-70
(1973) (finding that the judge\'s instruction to disregard pretrial
publicity had no significant effect on whether mock jurors rendered a
guilty verdict); Sarah Tanford & Michele Cox, Decision Processes in
Civil Cases: The Impact of Impeachment Evidence on Liability and
Credibility Judgments, 2 Soc. Behav. 165, 170 (1987) (finding that
instructions limiting the use of prior perjury convictions had no
significant effect on the degree of responsibility assigned); Sarah
Tanford & Steven Penrod, Biases in Trials Involving Defendants Charged
with Multiple Offenses, 12 J. Applied Soc. Psychol. 453, 462, 465 (1982)
(indicating that an \"instruction was partially effective, since there
were no differences between joined (with instructions) and single
conditions\"); William C. Thompson, Geoffrey T. Fong & D.L. Rosenhan,
Inadmissible Evidence and Juror Verdicts, 40 J. Personality & Soc.
Psychol. 453, 457 (1981) (finding no effect from the judge\'s
instructions limiting either proacquittal or proconviction evidence);
Rosell L. Wissler & Michael J. Saks, On the Inefficacy of Limiting
Instructions: When Jurors Use Prior Conviction Evidence to Decide on
Guilt, 9 Law & Hum. Behav. 37, 43-44 (1985) (finding that, despite an
instruction to limit the use of a prior conviction only to assess
credibility, \"credibility judgments were unaffected by \[the\] prior
conviction condition\").

\[FN95\]. See W.R. Cornish & A.P. Sealy, Juries and the Rules of
Evidence, 1973 Crim. L. Rev. 208, 222 (\"Contrary to common supposition,
juries give real weight to an instruction to disregard relevant previous
record wrongly admitted.\"); Steven Fein, Allison L. McCloskey & Thomas
M. Tomlinson, Can the Jury Disregard That Information? The Use of
Suspicion to Reduce the Prejudicial Effects of Pretrial Publicity and
Inadmissible Testimony, 23 Personality & Soc. Psychol. Bull. 1215, 1223
(1997) (suggesting that jurors given reason to be suspicious of
inadmissible evidence will discount it); Jonathan L. Freedman,
Christiane K. Martin & Victor L. Mota, Pretrial Publicity: Effects of
Admonition and Expressing Pretrial Opinions, 3 Legal & Criminological
Psychol. 255, 260-61 (1998) (finding that an admonition not to base the
decision on outside facts or discussion had a significant effect on
jurors\' willingness to find guilt); Kassin & Sommers, supra note 86, at
1049 (finding that jurors considered evidence that was ruled
inadmissible on due process grounds, but did not consider the same
evidence that was ruled inadmissible on reliability grounds); Jeffrey
Kerwin & David R. Shaffer, Mock Jurors Versus Mock Juries: The Role of
Deliberations in Reactions to Inadmissible Testimony, 20 Personality &
Soc. Psychol. Bull. 153, 158 (1994) (finding that jurors are more likely
to follow the judge\'s instruction when meeting as a jury than when
simply voting for guilt or innocence on their own); Kamala London &
Narina Nunez, The Effect of Jury Deliberations on Jurors\' Propensity to
Disregard Inadmissible Evidence, 85 J. Applied Psychol. 932, 934, 936
(2000) (finding that a significant percentage of jurors who heard a due
process limiting instruction changed their minds from guilty to not
guilty during deliberations); Pickel, supra note 92, at 414, 418
(finding that inadmissible evidence was more likely to not be considered
when no explanation was given for the limiting instruction, rather than
when the judge explained the reason); Sarah Tanford, Steven Penrod &
Rebecca Collins, Decision Making in Joined Criminal Trials: The
Influence of Charge Similarity, Evidence Similarity, and Limiting
Instructions, 9 Law & Hum. Behav. 319, 328-29 (1985) (finding that
instructions designed to eliminate prejudice with regard to joined
charges had a significant effect on jurors\' results); Carol M. Werner,
Dorothy K. Kagehiro & Michael J. Strube, Conviction Proneness and the
Authoritarian Juror: Inability to Disregard Information or Attitudinal
Bias?, 67 J. Applied Psychol. 629, 631-32 (1982) (finding that less
authoritarian people were less likely to use inadmissible evidence to
convict the accused).

\[FN96\]. See Cox & Tanford, supra note 93, at 38-39 (\"\[T\]he curative
instruction appears to alleviate the harm produced by the introduction
of inadmissible evidence.\"); Monique A. Fleming, Duane T. Wegener &
Richard E. Petty, Procedural and Legal Motivations to Correct for
Perceived Judicial Biases, 35 J. Experimental Soc. Psychol. 186, 194-96
(1999) (suggesting that even if jurors do not change their private
perceptions upon hearing evidence is inadmissible, they do change how
they vote).

\[FN97\]. See, e.g., Evelyn Goldstein Schaefer & Kristine L. Hansen,
Similar Fact Evidence and Limited Use Instructions: An Empirical
Investigation, 14 Crim. L.J. 157, 170 (1990) (finding that receiving a
limited use instruction greatly reduced the likelihood that a juror
would vote to convict); Samuel R. Sommers & Saul M. Kassin, On the Many
Impacts of Inadmissible Testimony: Selective Compliance, Need for
Cognition, and the Overcorrection Bias, 27 Personality & Soc. Psychol.
Bull. 1368, 1372-73 (2001) (finding that jurors with a high need for
cognition were significantly more likely to exhibit bias overcorrection
than were jurors with a lower need for cognition); Tanford & Cox, supra
note 93, at 484 (finding that jurors who received character evidence of
honesty, along with instructions to limit the use of a past perjury
conviction, convicted the suspect at a far lower rate than those who
were not informed of the perjury conviction).

\[FN98\]. See Kassin & Sommers, supra note 86, at 1046-47 (providing an
explanation for why the inadmissible evidence facilitated mock jurors\'
ability to ignore the evidence).

\[FN99\]. See Pickel, supra note 92, at 414 (finding that an explanation
of why evidence should be inadmissible had a significantly worse effect
than providing no explanation at all).

\[FN100\]. See Kerwin & Shaffer, supra note 95, at 158 (finding that
deliberating juries were more able to follow instructions and disregard
inadmissible evidence than individual jurors); London & Nunez, supra
note 95, at 936 (same).

\[FN101\]. See Valerie P. Hans & Anthony N. Doob, Section 12 of the
Canada Evidence Act and the Deliberations of Simulated Juries, 18 Crim.
L.Q. 235, 243 (1975) (finding that deliberation increased the effect of
inadmissible evidence on verdicts).

\[FN102\]. See Wegner, Schneider, Carter & White, supra note 49, at 6
(concluding that \"conscious thought suppression is not a cognitive
transformation that people perform with great facility\"); see also id.
(citing Donald V. McGranahan, A Critical and Experimental Study of
Repression, 35 J. Abnormal & Soc. Psychol. 212 (1940), among other
studies, for the proposition that even the threat of electric shocks did
not deter subjects from making forbidden color associations with
stimulus words).

\[FN103\]. See Stanley Sue, Ronald E. Smith & Cathy Caldwell, Effects of
Inadmissible Evidence on the Decisions of Simulated Jurors: A Moral
Dilemma, 3 J. Applied Soc. Psychol. 345, 351 (1973) (concluding that
where the evidence was weak, an inadmissible inculpatory tape recording
biased jurors and the judge\'s admonishment to disregard it was
ineffective, but when the evidence against the defendant was strong, the
inadmissible inculpatory tape recording had no effect on the verdict,
regardless of what the judge did).

\[FN104\]. See, e.g., Kari Edwards & Tamara S. Bryan, Judgmental Biases
Produced by Instructions to Disregard: The (Paradoxical) Case of
Emotional Information, 23 Personality & Soc. Psychol. Bull. 849, 856
(1997) (\"\[I\]t is the capacity of information to elicit emotion that
renders it particularly difficult to ignore in the context of making
judgments.\").

\[FN105\]. See, e.g., Wegner, supra note 44, at 35 (arguing that
\"mental control exerted during mental load will often produce ironic
effects, resulting in mental states that go beyond \'no change\' to
become the opposite of what is desired\"); Daniel M. Wegner, Ralph Erber
& Sophia Zanakos, Ironic Processes in the Mental Control of Mood and
Mood-Related Thought, 65 J. Personality & Soc. Psychol. 1093, 1101
(1993) (concluding that subjects failed mental control tasks when they
were assigned other mental tasks to perform simultaneously).

\[FN106\]. See, e.g., Fein, McCloskey & Tomlinson, supra note 95, at
1223 (reporting that exposure to incriminating information in the form
of either pretrial publicity or inadmissible testimony negatively
influenced individuals\' judgments about the defendant regardless of
whether the subjects were instructed to disregard the information, but
further reporting that creating suspicion about the motives underlying
the disclosure of the incriminating information mitigated or eliminated
its impact). But see Fleming, Wegener & Petty, supra note 96, at 197
(suggesting that concerns about procedural unfairness can influence
decision makers to disregard information even at the cost of diminishing
accuracy).

\[FN107\]. Although some studies find this effect, others do not.
Compare Broeder, supra note 79, at 754 (finding such an effect), and
Sharon Wolf & David A. Montgomery, Effects of Inadmissible Evidence and
Level of Judicial Admonishment to Disregard on the Judgments of Mock
Jurors, 7 J. Applied Soc. Psychol. 205, 216 (1977) (same), with Sue,
Smith & Caldwell, supra note 103, at 350-51 (not finding such an
effect).

\[FN108\]. Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich,
Inside the Judicial Mind, 86 Cornell L. Rev. 777, 781 (2001).

\[FN109\]. Kevin M. Clermont & Theodore Eisenberg, Litigation Realities,
88 Cornell L. Rev. 119, 143-44 (2002); see also Leonidas Ralph Mecham,
2003 Judicial Business: Annual Report of the Director 162-64 tbl.C-7
(2003) (reporting 2603 civil jury trials and 3227 civil nonjury trials
during the twelve-month period ending September 30, 2003), available at
http:// www.uscourts.gov/judbus2003/contents.html; Kevin M. Clermont &
Theodore Eisenberg, Trial by Jury or Judge: Transcending Empiricism, 77
Cornell L. Rev. 1124, 1127 n.7 (1992) (noting two surveys where 55.5% of
federal civil trials and about 96% of state civil trials were judge
trials).

\[FN110\]. Guthrie, Rachlinski & Wistrich, supra note 108, at 781
(footnotes omitted).

\[FN111\]. A number of psychology studies have examined the strategies
necessary to exclude undesirable thoughts, such as those regarding
impermissible evidence, from the decision-making process. See Anita E.
Kelley & Jeffrey H. Kahn, Effects of Suppression of Personal Intrusive
Thoughts, 66 J. Personality & Soc. Psychol. 998, 1004 (1994) (suggesting
that people who are experienced in suppressing intrusive thoughts may be
able to do so by tapping into a network of effective distractors
allowing them to avoid the rebound effect after the suppression period);
see also Richard M. Wenzlaff & Danielle E. Bates, The Relative Efficacy
of Concentration and Suppression Strategies of Mental Control, 26
Personality & Soc. Psychol. Bull. 1200, 1210-11 (2000) (\"\[A\] positive
mental control strategy emphasizing the pursuit of desirable thoughts is
preferable to the tactic of suppressing undesirable material.\").

\[FN112\]. See, e.g., Letter to the Editor, 36 Harv. L. Rev. 193, 193
(1922) (\"\[W\]e, the judges (of superior mentality) are able to discern
and segregate those matters by which you, the jurors, might be led
astray or biased.\" (internal quotation marks omitted)).

\[FN113\]. See supra Part I.C.

\[FN114\]. See Kerwin & Shaffer, supra note 95, at 160 (reporting
results suggesting that \"deliberating juries were indeed less likely
than individual jurors to recommend a verdict that was tainted by
testimony they had been instructed to ignore.\"); id. at 161 (\"\[A\]
generalization to juries based on the behavior of mock jurors can be a
rather perilous one.\").

\[FN115\]. See James Surowiecki, The Wisdom of Crowds: Why the Many Are
Smarter than the Few and How Collective Wisdom Shapes Business,
Economies, Societies, and Nations 183-84 (2004) (noting Chandra
Nemeth\'s studies of mock juries as proof that \"the presence of a
minority viewpoint\... makes a group\'s decisions more nuanced and its
decision-making process more rigorous,\" even when the viewpoint is
\"ill conceived\").

\[FN116\]. See generally Landsman & Rakos, supra note 78 (examining
reactions of judges and mock jurors to biasing information in a
hypothetical case).

\[FN117\]. See id. at 125 (\"\[J\]udges and jurors in civil cases react
similarly when exposed to material that is subsequently ruled
inadmissible\-- their perceptions of central trial issues are
altered.\").

\[FN118\]. See supra notes 38-43 and accompanying text (discussing the
impact of psychological reactance on evidentiary considerations).

\[FN119\]. Of the 105 judges in Maricopa County, 70 were superior court
judges, 25 were court commissioners, one was an appellate judge, and two
were administrative law judges.

The superior court judges from Maricopa County are the principal trial
court judges in the county. They generally rotate through several
departments, including the civil, criminal, family, probate, and
juvenile departments. In some instances, however, the judges might
remain in a department for longer periods of time. In particular, the
need for family court judges allows judges who want to adjudicate family
cases to volunteer for this assignment indefinitely. Thus, although most
of the superior court judges in our study have experience in multiple
areas, twelve of these judges reported that they had presided
exclusively over family court matters.

The Maricopa County Superior Court judges are appointed for fixed,
renewable terms through a merit selection process mandated by the
Arizona Constitution. Ariz. Const., art. 6, § 37 (amended 1974 and
1992). To obtain appointment to the bench, prospective judges are
considered by a judicial nominating commission. Id. § 37, cl. B. The
nominating commission recommends at least three candidates to the
governor, who then appoints the judges for fixed terms. Id. § 37, cl. B,
C. Appointments are based primarily on merit. See id. § 37, cl. C (\"In
making the appointment, the governor shall consider the diversity of the
state\'s population for an appellate court appointment and the diversity
of the county\'s population for a trial court appointment, however the
primary consideration shall be merit.\"). For a more detailed
explanation of the process, see Ariz. Supreme Court, Merit Selection in
Arizona, at http:// www.supreme.state.az.us/hr/meritpage.htm (last
modified Sept. 25, 2003).

Like the superior court judges, the Maricopa County commissioners are
also appointed through a merit selection process. See Superior Court of
Ariz., Maricopa County, Judge Information: Superior Court Commissioners,
at http://
www.superiorcourt.maricopa.gov/judicialbios/judiciallist.asp?title=2
(last visited Mar. 7, 2005) (\"Commissioners are appointed by the
Court\'s Presiding Judge from attorneys who apply and are recommended by
a selection committee made up of judges, lawyers and others.\"). The
commissioners function much like the magistrate judges in the federal
district courts, performing a subset of the functions of the superior
court judges. See id. (\"Commissioners handle specific assigned cases
and uncontested matters.\"); see also Administrative Office of the U.S.
Courts, Frequently Asked Questions, at http:// www.uscourts.gov/faq.html
(last visited Mar. 7, 2005) (\"A U.S. magistrate judge\... exercise\[s\]
jurisdiction over matters assigned by statute as well as those delegated
by the district judges.\").

\[FN120\]. We described federal magistrate judges at some length in our
prior article on judicial decision making. See Guthrie, Rachlinski &
Wistrich, supra note 108, at 784-85 (describing the function and
selection of federal magistrate judges). Congress created the office of
the federal magistrate judge in 1968. Federal Magistrates Act, Pub. L.
No. 90-578, 82 Stat. 1107 (1968) (codified as amended at 28 U.S.C. §§
631-639 (2000 & Supp. 2001)). Federal magistrate judges perform a
variety of functions, including making preliminary rulings in civil and
criminal cases and organizing settlement conferences. These judges can
also preside over civil trials with the litigants\' consent. Between
September 2002 and September 2003, federal magistrate judges handled
315,455 preliminary criminal proceedings, 82,138 civil pretrial
conferences, and entered final judgment in 13,811 cases litigated by
civil consent. Mecham, supra note 109, at 38-39 tbl.S-17. Federal
magistrate judges apply for the position and are selected by \"merit
selection panels\" charged with \"identifying and recommending persons
who are best qualified to fill such positions.\" 28 U.S.C. § 631(b)(5)
(2000 & Supp. 2001). Based on these recommendations, the district judges
in the relevant district vote for their preferred applicant. Id. §
631(a). The magistrates serve renewable eight-year terms. Id. § 631(e).

\[FN121\]. This group of judges participated in the study only on the
condition that we not identify the jurisdiction. We can roughly identify
the characteristics of these judges, however. All are from a single
jurisdiction. They are similar to the judges from Maricopa County
(although they are not from Arizona). That is, these judges are also the
principal trial court judges in their jurisdiction, they are appointed
through a merit selection procedure, they serve for renewable fixed
terms, and they rotate through multiple departments within their
jurisdiction.

\[FN122\]. Knowing that we would have a mixed group of judges in
Maricopa County, we asked the judges in this group to identify their
title as well. See supra note 119 (describing the differing roles and
functions of Maricopa County Superior Court judges and commissioners).

\[FN123\]. Some of these judges had participated in our earlier study of
magistrate judges. Guthrie, Rachlinski & Wistrich, supra note 108, at
785.

\[FN124\]. See Superior Court of Ariz., Maricopa County, Superior Court
Judges, at http://www.superiorcourt.maricopa.gov/judicialbios/index.asp
(last visited Mar. 7, 2005) (providing links to the number of superior
court judgeships and commissioner positions in the jurisdiction, from
which we calculated the percentage of judges and commissioners in
attendance).

\[FN125\]. The title page to the questionnaire consisted of the name of
the conference, city, and date, followed by the paragraph below:

Many of the points discussed by this panel are best understood if
experienced directly. We therefore ask that before the session starts,
you read and respond to each of the questions enclosed in the survey
(although doing so is voluntary, of course). Please do so independently
and please do not discuss the surveys with others while you are
responding to the questions. We shall collect these surveys before the
discussion and present the results during the panel session.

\[FN126\]. The materials used at each of the four sessions varied. The
questionnaires for all of the groups of federal magistrate judges
included four different hypotheticals for the judges to evaluate. The
questionnaires for the federal district judges included five scenarios.
The trial judges from the anonymous urban jurisdiction responded to
seven different scenarios. Finally, each of the questionnaires
administered to the Maricopa County judges included four out of five
different scenarios (two scenarios were each given to one-half of the
judges). We did not vary the order in which the materials were presented
within any single educational conference.

\[FN127\]. Both groups of the federal magistrate judges and judges in
the urban jurisdiction also received other scenarios not reported here.
The federal magistrates in San Diego received two other questions
(involving attractiveness and sentencing, and an assessment of the
admissibility of a coerced confession); the federal magistrate judges in
Minneapolis received one other question (involving subsequent remedial
measures); and judges in the urban jurisdiction received four other
questions (involving attractiveness and sentencing, contrast effects in
witness credibility, conjunctive effects in a criminal case, and
presentation format of DNA evidence).

\[FN128\]. See David W. Martin, Doing Psychology Experiments 150-53, 172
(6th ed. 2004) (explaining that a between-subjects experiment can be
advantageous because \"participants are exposed to only one level of the
independent variable, so the other levels cannot affect the
participants\' behavior\"); John J. Shaughnessy & Eugene B. Zechmeister,
Research Methods in Psychology 176-85 (3d ed. 1994) (describing the
elements of a successful experiment, and noting that \"\[t\]he primary
reason that experiments are so effective for testing hypotheses is that
they allow researchers to exercise a relatively high level of
control\").

\[FN129\]. See Shaughnessy & Zechmeister, supra note 128, at 182
(explaining that in a random groups design, \"if the groups perform
differently, it is presumed that the independent variable is
responsible\").

\[FN130\]. See id. at 178 (describing independent variables as \"\[t\]he
factors that the researcher controls or manipulates\").

\[FN131\]. See id. (describing dependent variables as \"\[t\]he measures
that are used to assess the effect (if any) of the independent
variables\").

\[FN132\]. The settlement scenario had two versions, as described below.
All of the judges received one of these, except that only half of the
Maricopa County judges received this item. The half of the Maricopa
County judges that did not receive this scenario received the
attorney-client privilege scenario instead. The first version of the
sexual history problem, run in the urban jurisdiction, did not provide a
meaningful test of our hypothesis, and hence was changed before being
run again in Maricopa County. Specifically, the first version produced
an extremely low conviction rate: 12.1%, or 4 out of 33 in the control
conviction and 3% (1 out of 33) in the suppression condition. Given that
the suppressed evidence was intended to facilitate an acquittal, the low
conviction rates made it impossible to discern any effect of the
suppressed evidence. The revisions added evidence intended to facilitate
convictions: the victim reported the incident immediately, the victim
had suffered observable bruises consistent with forcible intercourse,
and the victim suffered emotional consequences from the encounter. The
prior search problem was also rewritten because of an ambiguity in the
question that was remedied for the Minneapolis judges. Copies of all
scenarios are described below and full versions are included in their
original form in the Appendix.

\[FN133\]. Fed. R. Evid. 408.

\[FN134\]. E.g., Ariz. R. Evid. 408.

\[FN135\]. In full, Rule 408 of both the Federal Rules and the Arizona
Rules of Evidence provides as follows:

Evidence of (1) furnishing or offering or promising to furnish, or (2)
accepting or offering or promising to accept, a valuable consideration
in compromising or attempting to compromise a claim which was disputed
as to either validity or amount, is not admissible to prove liability
for or invalidity of the claim or its amount. Evidence of conduct or
statements made in compromise negotiations is likewise not admissible.
This rule does not require the exclusion of any evidence otherwise
discoverable merely because it is presented in the course of compromise
negotiations. This rule also does not require exclusion when the
evidence is offered for another purpose, such as proving bias or
prejudice of a witness, negativing a contention of undue delay, or
proving an effort to obstruct a criminal investigation or prosecution.

Id. The rule governing the urban jurisdiction is similar.

\[FN136\]. Hernandez v. State, 52 P.3d 765, 768 (Ariz. 2002) (en banc)
(citing 23 Charles Alan Wright & Kenneth W. Graham, Jr., Federal
Practice & Procedure § 5314, at 286 (1980)).

\[FN137\]. See supra note 10 (giving reasons for excluding evidence of
settlement offers); see also Fed. R. Evid. 408 advisory committee\'s
note (describing the purpose of the rule as \"freedom of communication
with respect to compromise\"). For a statement of the policy favoring
settlement in our civil justice system, see Stephen McG. Bundy, The
Policy in Favor of Settlement in an Adversary System, 44 Hastings L.J. 1
(1992).

\[FN138\]. See Amos Tversky & Daniel Kahneman, Judgment Under
Uncertainty: Heuristics and Biases, 185 Sci. 1124, 1128-30 (1974)
(describing anchoring).

\[FN139\]. See id. at 1128 (showing that providing starting points to
subjects influences their estimates).

\[FN140\]. Id.

\[FN141\]. See generally Nicholas Epley & Thomas Gilovich, Putting
Adjustment Back in the Anchoring and Adjustment Heuristic: Differential
Processing of Self-Generated and Experimenter-Provided Anchors, 12
Psychol. Sci. 391 (2001); Fritz Strack & Thomas Mussweiler, Explaining
the Enigmatic Anchoring Effect: Mechanisms of Selective Accessibility,
73 J. Personality & Soc. Psychol. 437 (1997).

\[FN142\]. In one study, for example, people gave higher estimates for
the mean daytime temperature in downtown San Francisco if they were
first asked whether that mean temperature was greater than
558\<\<degrees\>\> Fahrenheit. See Scott Plous, The Psychology of
Judgment and Decision Making 146 (1993) (summarizing a 1984 study
conducted by George Quattrone and his colleagues).

\[FN143\]. See Guthrie, Rachlinski & Wistrich, supra note 108, at 789-90
(discussing anchoring in civil damage awards).

\[FN144\]. See, e.g., Gretchen B. Chapman & Brian H. Bornstein, The More
You Ask for, the More You Get: Anchoring in Personal Injury Verdicts, 10
Applied Cognitive Psychol. 519, 525-26 (1996) (finding in a case
involving fairly modest damages that mock jurors were still influenced
by a plaintiff\'s lawyer\'s request for \$1 billion).

\[FN145\]. See Guthrie, Rachlinski & Wistrich, supra note 108, at 789-90
(listing several such studies).

\[FN146\]. See Cass R. Sunstein, Daniel Kahneman, David Schkade & Ilana
Ritov, Predictably Incoherent Judgments, 54 Stan. L. Rev. 1153, 1182
(2002) (\"A more promising strategy for reducing incoherence would be to
give relatively greater power to the reviewing court and relatively less
power to the jury\.... \[J\]udges are in a better position to move
toward global coherence, or at least to avoid the worst anomalies.\").

\[FN147\]. In a prior article, we reported experimental evidence that
judges, like mock jurors, are susceptible to the effects of an
irrelevant anchor. Guthrie, Rachlinski & Wistrich, supra note 108, at
790-92.

\[FN148\]. Infra Appendix, pp. 1332-33.

\[FN149\]. We gave all of the judges except the federal district judges
either the low- or the high-anchor materials and their appropriately
matched control conditions. The federal magistrate judges in San Diego
reviewed the low-anchor materials while the federal magistrate judges in
Minneapolis reviewed the high-anchor materials. The urban jurisdiction
judges reviewed the low-anchor materials and half of the Maricopa County
judges reviewed the high-anchor materials. Supra Table 1, p. 1285.

\[FN150\]. The two control conditions varied slightly from one another.
In the control condition matched with the low-anchor condition, the
materials explained to the judge that, \"\[d\]uring the settlement
conference, the plaintiff\'s attorney confided in you that his client
could use the money and wanted to eliminate any possibility of an
appeal.\" In the control condition matched with the high-anchor
condition, the materials explained that, \"\[d\]uring the settlement
conference, the plaintiff\'s attorney confided in you that his client
was intent upon collecting a significant monetary payment.\" Note that
the relevant comparisons for our purposes are between the judges in the
first control group vis-a-vis the low-anchor judges and between the
judges in the second control group vis-a-vis the high-anchor judges. We
do not compare the control groups to one another.

\[FN151\]. Infra Appendix, p. 1332. The materials supplied the citation
to the rule number for the relevant jurisdiction.

\[FN152\]. Throughout this paper, the term \"significance\" denotes only
a statistical relationship.

\[FN153\]. Two-sample t(52) = 2.78, p \< .01; Mann-Whitney U = 2270, p
\< .005. Throughout this paper, all t-tests were performed without
assuming equal variances in the two samples. The data are skewed
positively, making the nonparametric test more reliable.

\[FN154\]. Two-sample t(44) = 3.44, p \< .005; Mann-Whitney U = 1086.5,
p \< . 001.

\[FN155\]. The t-ratio of the coefficient for the interaction was 1.56,
p = . 12. Among judges in the low-anchor condition, the correlation
between experience and the log of the award was .024, whereas among
judges in the corresponding control condition, the correlation was
-.237. This difference produced the trend towards an interaction.
Because the correlation between experience and awards was negative in
the control condition, we cannot conclude that experience in any way
mitigated the effect of the low anchor. Such an effect would have
produced the opposite tendency (a positive correlation between
experience and awards in the low-anchor condition such that the awards
among more experienced judges would have been similar in both
conditions).

\[FN156\]. The t-ratio of the coefficient for experience was 2.04, p \<
.05.

\[FN157\]. The t-ratio of the coefficient for the interaction was 1.56,
p = . 12.

\[FN158\]. Two-sample t(63) = 1.97, p = .05; Mann-Whitney U = 2124.0, p
= . 25. An analysis performed on the log transformation of the damage
award also revealed no significant difference between the two samples.
Two-sample t(66) = 1.64, p = .11. Note that one judge had awarded \$0;
this amount was adjusted to \$1 before the log transformation of the
data so as to preserve this observation in the analysis.

\[FN159\]. See, e.g., Fed. R. Evid. 408 advisory committee\'s note
(\"The evidence is irrelevant, since the offer \[to compromise\] may be
motivated by a desire for peace rather than from any concession of
weakness of position.\").

\[FN160\]. See supra note 151 and accompanying text.

\[FN161\]. See Guthrie, Rachlinski & Wistrich, supra note 108, at 792-94
(discussing the power of anchors in judicial decision making).

\[FN162\]. See Kovacs v. Szentes, 33 A.2d 124, 125 (Conn. 1943) (\"A
judge has not such control over his mental faculties that he can
definitely determine whether or not inadmissible evidence he has heard
will affect his mind in making his decision.\").

\[FN163\]. See John Leubsdorf, Theories of Judging and Judge
Disqualification, 62 N.Y.U. L. Rev. 237, 238 (1987) (\"Courts declare
that impartiality is so important that a reasonable\--albeit
incorrect\--appearance of bias compels recusal \....\"); see also Debra
Lyn Bassett, Recusal and the Supreme Court, 56 Hastings L.J.
(forthcoming 2005) (manuscript at 2, on file with authors) (\"Avoiding
the appearance of impropriety requires a judge to withdraw from a case
when the judge\'s impartiality in a matter might reasonably be
questioned.\").

\[FN164\]. See Bassett, supra note 163 (manuscript at 19-21) (reviewing
the \"duty to sit\" in the United States Supreme Court).

\[FN165\]. C & W Fish Co. v. Fox, 931 F.2d 1556, 1564 (D.C. Cir. 1991)
(\"\[A\]n individual should be disqualified from rulemaking only when
there has been a clear and convincing showing that the Department member
has an unalterably closed mind on matters critical to the disposition of
the proceeding.\" (internal quotation marks omitted)).

\[FN166\]. Rule 501 of the Arizona Rules of Evidence and Arizona Statute
section 12-2234 protect attorney-client communications. See Ariz. R.
Evid. 501 (regarding privileges generally); Ariz. Rev. Stat. Ann. §
12-2234 (West 2003) (privileging communications between lawyer and
client in civil cases).

\[FN167\]. See, e.g., Hunt v. Blackburn, 128 U.S. 464, 470 (1888)
(stating that the privilege \"is founded upon the necessity, in the
interest and administration of justice, of the aid of persons having
knowledge of the law and skilled in its practice, which assistance can
only be safely and readily availed of when free from the consequences or
the apprehension of disclosure\").

\[FN168\]. Id.

\[FN169\]. Infra Appendix, pp. 1334-35.

\[FN170\]. We gave this scenario to all of the federal magistrate judges
attending the San Diego conference and half of the judges attending the
Maricopa County conference. Supra Table 1, p. 1285.

\[FN171\]. Infra Appendix, p. 1334.

\[FN172\]. Infra Appendix, p. 1334.

\[FN173\]. See, e.g., Ariz. Rev. Stat. Ann. § 12-2234 (West 2003)
(stating that the attorney-client privilege is applicable only where the
communication involves either the \"providing \[of\] legal advice\" or
\"obtaining information in order to\" do so).

\[FN174\]. Infra Appendix, p. 1334.

\[FN175\]. Infra Appendix, p. 1334.

\[FN176\]. Infra Appendix, p. 1335.

\[FN177\]. Infra Appendix, p. 1335.

\[FN178\]. Fisher\'s exact p \< .05.

\[FN179\]. Fisher\'s exact p \> .5.

\[FN180\]. The t-ratio of the coefficient for court was 2.20, p \< .05.

\[FN181\]. See generally United States v. Zolin, 491 U.S. 554 (1989)
(discussing the crime-fraud exception to attorney-client privilege).

\[FN182\]. See Model Rules of Prof\'l Conduct R. 3.1 (2003) (\"A lawyer
shall not bring or defend a proceeding\... unless there is a basis in
law and fact for doing so\....\").

\[FN183\]. See id. R. 1.6(a) (\"A lawyer shall not reveal information
relating to the representation of a client unless the client gives
informed consent\....\"). But cf. id. R. 3.3(b) (\"A lawyer who
represents a client in an adjudicative proceeding and who knows that a
person intends to engage, is engaging or has engaged in criminal or
fraudulent conduct related to the proceeding shall take reasonable
remedial measures, including, if necessary, disclosure to the
tribunal.\").

\[FN184\]. See Michelle J. Anderson, From Chastity Requirement to
Sexuality License: Sexual Consent and a New Rape Shield Law, 70 Geo.
Wash. L. Rev. 51, 81-86 (2002) (discussing different categories of
rape-shield laws).

\[FN185\]. See Fed. R. Evid. 412 advisory committee\'s note (\"The rule
aims to safeguard the alleged victim against the invasion of privacy,
potential embarrassment and sexual stereotyping that is associated with
public disclosure of intimate sexual details\....\").

\[FN186\]. See Anderson, supra note 184, at 104 (\"A pattern of
consensual sexual behavior might reveal that the woman has had a
considerable amount of sex but has never falsely accused someone of
rape.\"). See generally Morrison Torrey, When Will We Be Believed? Rape
Myths and the Idea of a Fair Trial in Rape Prosecutions, 24 U.C. Davis
L. Rev. 1013 (1991).

\[FN187\]. See Anderson, supra note 184, at 81-85 (reviewing in brief
the history of rape-shield laws).

\[FN188\]. Ariz. Rev. Stat. Ann. § 13-1421 (West 2003).

\[FN189\]. See, e.g., State ex rel. Pope v. Superior Court, 545 P.2d
946, 950 (Ariz. 1976) (en banc) (\"The law does not and should not
recognize any necessary connection between a witness\' veracity and her
sexual immorality.\" (citing, inter alia, Sage v. State, 195 P. 533
(Ariz. 1921))).

\[FN190\]. See State v. Gilfillan, 998 P.2d 1069, 1074 n.3 (Ariz. Ct.
App. 2000) (observing that Arizona\'s rape-shield statute codified the
common law prohibition against the introduction of sexual history
evidence, except in rare circumstances).

\[FN191\]. See Lenehan & O\'Neill, supra note 94, at 238 (\"\[E\]arlier
evidence against the victim\... produced significantly higher
probability of \[a guilty verdict\] than where all factors were against
the defendant\....\"); Regina A. Schuller & Patricia A. Hastings,
Complainant Sexual History Evidence: Its Impact on Mock Jurors\'
Decisions, 26 Psychol. Women Q. 252, 259 (2002) (\"\[T\]he proposed
safeguard of providing jurors with limiting instructions may be
ineffective in curbing the pernicious impact of prior \[sexual\] history
evidence.\").

\[FN192\]. See, e.g., Schuller & Hastings, supra note 191, at 259
(\"\[P\]articipants who heard that a rape complainant had had a prior
sexual relationship with the man accused of her rape, were more negative
in their evaluations of the woman\....\").

\[FN193\]. Infra Appendix, pp. 1336-37.

\[FN194\]. We gave Version 1 of this scenario to all of the judges in
the urban jurisdiction and Version 2 to all of the judges in Maricopa
County. Supra Table 1, p. 1285.

\[FN195\]. Infra Appendix, p. 1336.

\[FN196\]. Infra Appendix, p. 1336.

\[FN197\]. Infra Appendix, p. 1336.

\[FN198\]. Infra Appendix, p. 1336.

\[FN199\]. Infra Appendix, p. 1337.

\[FN200\]. Infra Appendix, p. 1337.

\[FN201\]. We tested this phenomenon in the urban jurisdiction using
similar materials. The results from this jurisdiction, however, were
inconclusive. In the prior version, the materials identify a longer
delay in the victim\'s reporting of the assault and do not include
references to bruising. The victim is also not described as engaging in
drinking and voluntarily went with the defendant to his room. These
materials produced a low conviction rate in the control condition. Thus,
the sexual history had no further power to reduce the conviction rate.
In the earlier version, however, we also asked judges to report their
confidence in the appropriateness of the verdict on a seven-point scale.
Although we observed no differences in the conviction rates, we did
obtain a significant difference in the confidence ratings. That is,
judges expressed more confidence in their acquittals after viewing the
sexual history evidence than judges in the control condition. To
determine whether the conviction rate would be affected by the
inadmissible testimony, we altered the evidence to increase the
conviction rate in the control condition and presented the materials to
another group of judges.

\[FN202\]. Fisher\'s exact p = .01.

\[FN203\]. Fisher\'s exact p = .42.

\[FN204\]. The Z-score of the coefficient for gender was 1.64, p = 10.
Throughout this paper, we refer to any statistical test that produced a
significance level between .05 and .10 as \"marginally significant.\"

\[FN205\]. See Anderson, supra note 184, at 94-137 (providing an
extensive review of exceptions to rape-shield laws that allow
admissibility of a rape victim\'s sexual history).

\[FN206\]. Fed. R. Evid. 609; Ariz. R. Evid. 609.

\[FN207\]. Rule 609(b) of both the Federal and Arizona Rules provides as
follows:

Evidence of a conviction under this rule is not admissible if a period
of more than ten years has elapsed since the date of the conviction or
of the release of the witness from the confinement imposed for that
conviction, whichever is the later date, unless the court determines, in
the interests of justice, that the probative value of the conviction
supported by specific facts and circumstances substantially outweighs
its prejudicial effect. However, evidence of a conviction more than
\[ten\] years old as calculated herein, is not admissible unless the
proponent gives to the adverse party sufficient advance written notice
of intent to use such evidence to provide the adverse party with a fair
opportunity to contest the use of such evidence.

Fed. R. Evid. 609(b); Ariz. R. Evid. 609(b).

\[FN208\]. See supra text accompanying note 7. Other portions of Rule
609\--for example, Rule 609(d), which limits the admissibility of
juvenile convictions\--are perhaps more appropriately classified as
extrinsic exclusionary rules. See supra text accompanying note 9.

\[FN209\]. Indeed, this assumption finds empirical support from mock
jury studies. See, e.g., Doob & Kirshenbaum, supra note 94, at 94-96
(finding that evidence of prior convictions significantly increased the
likelihood that jurors would find a defendant guilty, despite a judge\'s
limiting instructions); Greene & Dodge, supra note 94, at 76 (finding
that jurors who learn of a defendant\'s prior conviction are more likely
to convict him of a subsequent offense); Hans & Doob, supra note 101, at
251 (finding that the presentation of a defendant\'s criminal record to
a jury significantly increases the likelihood of a guilty verdict);
London & Nunez, supra note 95, at 937 (finding that predeliberation
jurors tend to be biased by the presentation of inadmissible evidence);
Reinard & Reynolds, supra note 93, at 105 (finding that \"jurors do
not\... consistently disregard sensational inadmissible testimony,\"
even when instructed by a judge to do so); Tanford & Cox, supra note 94,
at 177 (finding that \"impeachment evidence leads to harsher judgements
of a civil defendant\" for both credibility and liability); Tanford &
Cox, supra note 93, at 494 (finding that juries told of a witness\'s
prior conviction perceived the witness as less credible and inferred
greater propensity for future harm and negligence).

\[FN210\]. Infra Appendix, pp. 1338-39.

\[FN211\]. We gave this scenario to all of the federal magistrate judges
attending the conference in Minneapolis and all of the Arizona trial
court judges attending the conference in Maricopa County. Supra Table 1,
p. 1285.

\[FN212\]. Infra Appendix, p. 1338.

\[FN213\]. Infra Appendix, p. 1338.

\[FN214\]. Infra Appendix, p. 1339.

\[FN215\]. Among the Arizona judges, two-thirds of the judges received
the suppression condition and one-third received the control condition.
This was done because many of the judges in Minnesota admitted the
testimony. To try to create a more balanced design, we thus decided to
oversample the suppression condition. The results demonstrate no
differences in the awards from different judges, see infra Part II.D.2,
and thus this oversampling is unlikely to have skewed the results.

\[FN216\]. Infra Appendix, p. 1338.

\[FN217\]. Mann-Whitney U = 2528.5, p = .075. The suppression condition
includes one \$10 million award, which dwarfs the other awards and
raises the mean award in the suppression-sustain condition by nearly
\$200,000. This award, along with the general skewness of the
distributions, makes the parametric test particularly inappropriate. A
t-test on the log-transformed data, however, also produced a marginally
significant difference. t(101) = 1.82, p = .07.

\[FN218\]. Mann-Whitney U = 2298.5, p \> .50. A t-test on the
log-transformed data also was not significant. Two-sample t(68) = 0.67,
p \> .5.

\[FN219\]. See, e.g., United States v. Khan, 920 F.2d 1100, 1105 (2d
Cir. 1990) (\"\[C\]ooperation agreements, like plea bargains, may
usefully be interpreted with principles borrowed from the law of
contract\.... \[T\]he government\'s discretion does not grant it power
to turn its back on its promises to the defendant under the cooperation
agreement\....\"); United States v. Rexach, 896 F.2d 710, 713-14 (2d
Cir. 1990) (\"Cooperation agreements, like plea bargains, are
interpreted according to principles of contract law\.... \[T\]he scope
of the government\'s discretion \[does not\] permit it to ignore or
renege on contractual commitments to defendants.\").

\[FN220\]. The federal sentencing guidelines themselves forbid the use
of incriminating information provided by the defendant as part of a
cooperation agreement with the prosecution. U.S. Sentencing Guidelines
Manual § 1B1.8 (2004).

\[FN221\]. Infra Appendix, pp. 1340-41.

\[FN222\]. U.S. Sentencing Guidelines Manual § 2D1.1(c)(7) (providing
for a base offense level of 26 for possession of \"\[a\]t least 50 G but
less than 200 G of Methamphetamine\").

\[FN223\]. Id. § 4A1.1(c).

\[FN224\]. Id. § 5A.

\[FN225\]. Id.

\[FN226\]. Infra Appendix, p. 1340.

\[FN227\]. Infra Appendix, p. 1340.

\[FN228\]. Infra Appendix, p. 1340.

\[FN229\]. U.S. Sentencing Guidelines Manual § 2D1.1(b)(6)(C).

\[FN230\]. Id. § 5A.

\[FN231\]. Infra Appendix, p. 1341.

\[FN232\]. Including this judge in the analysis would only have
strengthened the observed effect of the improperly presented evidence.

\[FN233\]. Taking as the dependent measure the binary decision of
whether to give the defendant the minimum sentence, the difference
between the two conditions was significant. Fisher\'s exact p = .006.

\[FN234\]. An ordinary two-sample t-test cannot be run on these data due
to the lack of variation among the control group. However, the null
hypothesis that the suppression group\'s true mean is also 78 months can
be rejected. t(12) = 3.34, p = .006.

\[FN235\]. See, e.g., Ian Weinstein, Fifteen Years After the Federal
Sentencing Revolution: How Mandatory Minimums Have Undermined Effective
and Just Narcotics Sentencing, 40 Am. Crim. L. Rev. 87, 126 (2003)
(\"The currently pervasive mandatory minimum statutes make narcotics
sentences indefensibly rigid, often unfair and unjustly harsh.\");
Justice Kennedy Speaks Out, N.Y. Times, Aug. 24, 2003, at A16 (noting
Justice Kennedy\'s argument that sentencing guidelines need to be
\"revised downward\"); John S. Martin Jr., Let Judges Do Their Jobs,
N.Y. Times, June 24, 2003, at A31 (announcing retirement due to the
\"distress I feel at being part of a sentencing system that is
unnecessarily cruel and rigid\") .

\[FN236\]. In fact, the academic literature shows that judges disagree
over the federal sentencing guidelines and their effects. Compare Judge
Louis F. Oberdorfer, Mandatory Sentencing: One Judge\'s
Perspective\--2002, 40 Am. Crim. L. Rev. 11, 16 (2003) (arguing that
discrepancies in the treatment of drug offenders under the guidelines
are \"the most serious vice\" in the guidelines), with Gerard E. Lynch,
Sentencing Eddie, 91 J. Crim. L. & Criminology 547, 560 (2001) (\"The
guidelines\... make a fairly sophisticated effort to assess the weight
of an offender\'s prior record.\"), and Angela LaBuda Collins, Note, The
Latest Amendment to 18 U.S.C. § 924(c): Congressional Reaction to the
Supreme Court\'s Interpretation of the Statute, 48 Cath. U. L. Rev.
1319, 1343 n.156 (1999) (noting that Justice Breyer was a strong
supporter of the guidelines during his tenure as Chief Judge of the
First Circuit).

\[FN237\]. 124 S. Ct. 2531 (2004).

\[FN238\]. 125 S. Ct. 738 (2005).

\[FN239\]. Blakely, 124 S. Ct. at 2543 (\"The Framers would not have
thought it too much to demand that, before depriving a man of three more
years of his liberty, the State should suffer the modest inconvenience
of submitting its accusation to \'the unanimous suffrage of twelve of
his equals and neighbours\' rather than a lone employee of the State.\"
(citation omitted)), quoted with alterations in Booker, 125 S. Ct. at
752.

\[FN240\]. U.S. Const. amend. IV.

\[FN241\]. Id.

\[FN242\]. See supra note 77 and accompanying text.

\[FN243\]. See Rachlinski, supra note 77, at 571 (explaining that
despite the obstacle of accurately assessing the predictability of
outcomes, the law constantly requires courts to make these
determinations).

\[FN244\]. See, e.g., William J. Stuntz, Warrants and Fourth Amendment
Remedies, 77 Va. L. Rev. 881, 915 (1991) (arguing that granting warrants
before a magistrate knows whether the police will find evidence or
whether the suspect is a criminal helps eliminate judicial bias).

\[FN245\]. See Beck v. Ohio, 379 U.S. 89, 96 (1964) (\"An arrest without
a warrant bypasses the safeguards provided by an objective
predetermination of probable cause, and substitutes instead the far less
reliable procedure of an after-the-event justification for the arrest or
search, too likely to be subtly influenced by the familiar shortcomings
of hindsight judgment.\").

\[FN246\]. Guthrie, Rachlinski & Wistrich, supra note 108, at 801-03
(providing evidence that learning an alleged outcome on appeal
significantly affected judges\' assessments of the most likely outcome).

\[FN247\]. See John C. Anderson, D. Jordan Lowe & Philip M.J. Reckers,
Evaluation of Auditor Decisions: Hindsight Bias Effects and the
Expectation Gap, 14 J. Econ. Psychol. 711, 732 (1993) (finding judges\'
evaluations of auditor performance to be significantly biased by outcome
information); Reid Hastie & W. Kip Viscusi, What Juries Can\'t Do Well:
The Jury\'s Performance as a Risk Manager, 40 Ariz. L. Rev. 901, 906
(1998) (finding a statistically insignificant trend towards hindsight
effects among judges evaluating a negligence case); W. Kip Viscusi, How
Do Judges Think About Risk?, 1 Am. L. & Econ. Rev. 26, 50-51 (1999)
(presenting evidence of the role of hindsight bias on judicial decision
making).

\[FN248\]. See Jonathan D. Casper & Kennette M. Benedict, The Influence
of Outcome Information and Attitudes on Juror Decision Making in Search
and Seizure Cases, in Inside the Juror: The Psychology of Juror Decision
Making 65, 81-82 (Reid Hastie ed., 1993) (finding mock jurors\'
decisions affected by outcome information); Jonathan D. Casper, Kennette
Benedict & Jo L. Perry, Juror Decision Making, Attitudes, and the
Hindsight Bias, 13 Law & Hum. Behav. 291, 300 (1989) (finding, in a
laboratory experiment, results consistent with hindsight bias).

\[FN249\]. Infra Appendix, pp. 1342-43.

\[FN250\]. We gave Version 1 of this scenario to all of the judges in
the urban jurisdiction and Version 2 to all of the judges in
Minneapolis. Supra Table 1, p. 1285.

\[FN251\]. Infra Appendix, p. 1342.

\[FN252\]. Infra Appendix, p. 1342.

\[FN253\]. Infra Appendix, p. 1342.

\[FN254\]. Infra Appendix, p. 1342.

\[FN255\]. Infra Appendix, p. 1343. There was an error in the phrasing
of the two available answers in the version of this question given to
the unnamed jurisdiction that makes the answers confusing. Specifically,
the judges were given the question \"Will you rule to suppress the
evidence?\" and two options: \"Yes, there was probable cause to justify
the search\" and \"No, there was not probable cause to justify the
search.\" Nevertheless, most of the judges reported understanding what
the question was asking, and so we include these results here. Also, as
discussed, their results did not differ from those of the federal
magistrate judges later tested in Minneapolis, for whom we corrected the
error.

\[FN256\]. See United States v. Karo, 468 U.S. 705, 718 (1984) (\"\[I\]f
truly exigent circumstances exist no warrant is required under general
Fourth Amendment principles.\").

\[FN257\]. See, e.g., Chambers v. Maroney, 399 U.S. 42, 51 (1970)
(holding that police may search automobiles based on probable cause
without a warrant); see also United States v. Johns, 469 U.S. 478,
487-88 (1985) (allowing police to search containers without a warrant
when the containers were properly seized from an automobile at an
earlier time).

\[FN258\]. Fisher\'s exact p = .68.

\[FN259\]. This analysis assumes that the population percentage in
foresight is 24%, which is what we found.

\[FN260\]. See Rachlinski, supra note 77, at 580-81 (reviewing previous
research on the hindsight bias).

\[FN261\]. See supra notes 246-47 and accompanying text.

\[FN262\]. In a different context, Hillary Sale has argued that judges
have developed simple heuristics to guide their decision making in
securities fraud cases. Hillary A. Sale, Judging Heuristics, 35 U.C.
Davis L. Rev. 903, 904- 05 (2002).

\[FN263\]. Miranda v. Arizona, 384 U.S. 436 (1966).

\[FN264\]. Escobedo v. Illinois, 378 U.S. 478 (1964).

\[FN265\]. See Miranda, 384 U.S. at 444-45 (\"If\... he indicates in any
manner and at any stage of the process that he wishes to consult with an
attorney before speaking there can be no questioning.\").

\[FN266\]. See Saul M. Kassin & Holly Sukel, Coerced Confessions and the
Jury: An Experimental Test of the \"Harmless Error\" Rule, 21 Law & Hum.
Behav. 27, 42 (1997) (stating that the presence of a confession
\"powerfully increased the conviction rate,\" even when mock jurors were
told to disregard the confession because it was coerced); Kassin &
Wrightsman, supra note 94, at 504 (concluding that instructions to
disregard coerced confessions may not be effective).

\[FN267\]. See Kassin & Wrightsman, supra note 94, at 491, 496 (citing
studies that show people are less likely to disregard negative
inducement of confessions, and finding that people view negatively
induced confessions as less voluntary than positively induced ones).

\[FN268\]. Kassin & Sommers, supra note 86, at 1047-53; Sommers &
Kassin, supra note 97, at 1372-73; Werner, Kagehiro & Strube, supra note
95, at 631-32.

\[FN269\]. See Kassin & Sommers, supra note 86, at 1051 (asserting that
experimental results suggest that jurors are influenced not by a
judge\'s ruling per se, but by the causal basis for that ruling).

\[FN270\]. Infra Appendix, pp. 1344-45.

\[FN271\]. We gave this scenario to all of the judges who attended the
conference in Maricopa County. Supra Table 1, p. 1285.

\[FN272\]. See Mecham, supra note 109, at 162-64 tbl.C-7 (reporting 3618
nonjury trials in criminal cases and 3500 jury trials between September
2002 and September 2003 in federal court).

\[FN273\]. Infra Appendix, p. 1344.

\[FN274\]. Infra Appendix, p. 1344.

\[FN275\]. Infra Appendix, p. 1345.

\[FN276\]. Infra Appendix, p. 1345.

\[FN277\]. Infra Appendix, p. 1345.

\[FN278\]. Only one of the 54 judges assigned to the experimental
condition ruled that the confession was admissible.

\[FN279\]. Fisher\'s exact p = .69.

\[FN280\]. This analysis assumes that 17% is the true conviction
percentage in the control condition.

\[FN281\]. See generally Guthrie, Rachlinski & Wistrich, supra note 108
(noting that five different \"illusions\"\--anchoring, framing,
hindsight bias, the representative heuristic, and egocentric
biases\--all had significant impacts on judicial decision making).

\[FN282\]. Id. at 821.

\[FN283\]. Emily Dickinson, Complete Poems, No. 303 (Thomas H. Johnson
ed., 1970).

\[FN284\]. See supra Part III.C.

\[FN285\]. See supra Part III.A.

\[FN286\]. See supra note 109.

\[FN287\]. See Marc Galanter, Real World Torts: An Antidote to Anecdote,
55 Md. L. Rev. 1093, 1100 n.17 (1996) (citing a study where 24% of the
1649 federal and state cases were terminated by some form of
adjudication other than trial, such as arbitration or dismissal on the
merits).

\[FN288\]. See Resnik, supra note 34, at 386 (describing managerial
judging as involvement, for example, in pretrial case development).

\[FN289\]. See Fed. Judicial Ctr., supra note 22, § 22.91, at 446-47
(\"Judges who have been involved in unsuccessful settlement negotiations
sometimes turn over to another judge the responsibility for trying the
case because they have been privy to information on the merits of the
case or on issues that would otherwise not have been revealed.\").

\[FN290\]. See Hon. James M. Carter, Effective Calendar
Control\--Objectives and Methods, 29 F.R.D. 227, 237-40 (1961)
(describing the principal advantages and disadvantages of master
calendar systems and individual assignment calendar systems).

\[FN291\]. See Richard L. Marcus, Slouching Toward Discretion, 78 Notre
Dame L. Rev. 1561, 1587 (2003) (describing the trend from master
calendars to single-judge assignment).

\[FN292\]. See, e.g., E.D. Cal. L.R. 72-302(c)(1) (referring all
discovery motions to magistrate judges); N.D. Cal. ADR L.R. 7-2 (\"A
settlement conference generally will be conducted by a Magistrate Judge,
but in some limited circumstances may be conducted by a District Judge.
Upon written stipulation of all parties, the assigned Judge \... may
conduct a settlement conference.\"); see also Harold Baer, Jr., History,
Process, and a Role for Judges in Mediating Their Own Cases, 58 N.Y.U.
Ann. Survey Am. L. 131, 144-47 (2001) (explaining a \"central criticism
of judicial mediation\... that, not only is it a waste of resources for
a federal judge to act as mediator, but it is also unethical for a judge
to mediate a case that appears on his own docket\").

\[FN293\]. See Committee on the Federal Courts of the Association of the
Bar of the City of New York, Report Evaluating the Individual Assignment
System in the Southern District of New York After Three Years
Experience, 69 F.R.D. 493, 497 (1976) (attributing a nearly 40%
reduction in civil caseload over a three-year period to the conversion
of the United States District Court for the Southern District of New
York to an individual assignment system).

\[FN294\]. See supra Part III.A.

\[FN295\]. See, e.g., Thomas A. Eaton, Susette M. Talarico & Richard E.
Dunn, Another Brick in the Wall: An Empirical Look at Georgia Tort
Litigation in the 1990s, 34 Ga. L. Rev. 1049, 1097 (2000) (noting the
juries have been \"the target of much criticism by proponents of tort
reform\"); Michael J. Saks, Public Opinion About the Civil Jury: Can
Reality Be Found in the Illusions?, 48 DePaul L. Rev. 221, 233-34 (1998)
(discussing attacks on the jury system by well-funded interest groups).

\[FN296\]. Guthrie, Rachlinski & Wistrich, supra note 108, at 827.

\[FN297\]. See Cass R. Sunstein, Reid Hastie, John W. Payne, David A.
Schkade & W. Kip Viscusi, Punitive Damages: How Juries Decide 244-48
(2002) (discussing the effect of anchoring on punitive damages).

\[FN298\]. Id.

\[FN299\]. See Sunstein, Kahneman, Schkade & Ritov, supra note 146, at
1183 (suggesting that the remedy for bias is the adoption of
guidelines).

\[FN300\]. 125 S. Ct. 738 (2005).

\[FN301\]. Id. at 764 (Breyer, J., opinion of the Court in part)
(\"\[W\]e must sever and excise two specific statutory provisions: the
provision that requires sentencing courts to impose a sentence within
the applicable Guidelines range\... and the provision that sets forth
standards of review on appeal, including de novo review of departures
from the applicable Guidelines range\....\" (emphasis omitted)).

\[FN302\]. Id. at 767 (\"The district courts, while not bound to apply
the Guidelines, must consult those Guidelines and take them into account
when sentencing.\").

\[FN303\]. Damaska, supra note 1, at 151; see also Julius Stone, The
Decline of Jury Trial and the Law of Evidence, 3 Res Judicatae 144, 148
(1947) (describing the \"overhaul\" of the evidence rules, \"in the
light of changing methods of trial,\" as \"the major task of our century
in this branch of the law\").

\[FN304\]. Broeder, supra note 79, at 753-54.

\[FN305\]. See Michelson v. United States, 335 U.S. 469, 486 (1948)
(noting that much of the law regarding evidence and good character is
\"archaic, paradoxical and full of compromises and compensations by
which a rational advantage to one side is offset by a poorly reasoned
counterprivilege to the other,\" but \"somehow it has proved a workable
even if clumsy system when moderated by discretionary controls in the
hands of a wise and strong trial court,\" and pulling \"one misshapen
stone out of the grotesque structure\" would more likely \"upset its
present balance\" than \"establish a rational edifice\").

\[FN306\]. See Fed. R. Evid. 102 (describing the purpose of the Federal
Rules of Evidence as promoting \"the end that the truth may be
ascertained and proceedings justly determined\").

\[FN307\]. See supra note 283.

\[FN308\]. See Lon L. Fuller, Legal Fictions 9 (1967) (\"A fiction is
either (1) a statement propounded with a complete or partial
consciousness of its falsity, or (2) a false statement recognized as
having utility.\").

END OF DOCUMENT