Can the jury disregard that information? The use of suspicion to reduce the prejudicial effects of pretrial publicity and inadmissible testimony.

Jurors are often faced with a set of social-cognitive challenges that,

if not unique, are uniquely magnified. Placed into a cauldron of

causal attributional issues, jurors must process large amounts of

information that varies greatly in both psychological and legal

relevance. Despite the well-documented difficulties perceivers have

with ignoring or discounting information to which they have been

exposed, jurors are expected to render verdicts that reflect

sufficient discounting of some (often vivid and memorable)

information and sufficient attention to other (often dry and

complex) information. On top of this inordinately heavy cognitive

load is the pressure jurors, feel from the knowledge that their

inferences and attributions will have very serious consequences.

In every trial, jurors are instructed to base their verdict

exclusively on evidence presented in court through the sworn

testimony of witnesses, exhibits, and facts stipulated by the

opposing attorneys--and to disregard

all facts not formally admitted into evidence. To help regulate the

information to which jurors are exposed, a complex set of rules and

procedures has evolved. These rules and procedures determine the

kinds of testimony that may be given, who may serve as a witness,

the scope of opening and closing statements, the content and

format of direct and cross-examination questions, and the phrasing

of the judge's instructions (see Mueller & Kirkpatrick, 1995).

Despite these efforts, the court rarely can ensure that juries will

not be exposed to information not admissible as evidence. To the

extent that extralegal factors increase or decrease perceptions of the

defendant's guilt or precipitate a raising or lowering of the standard

of proof seen as necessary for conviction, they will have a

prejudicial effect on jury decision making. Unfortunately, such

effects may be all too common. Research has shown that jury

verdicts can be influenced by a wide range of nonevidentiary factors

presented inside and outside the courtroom, including pretrial

publicity concerning the defendant (Kramer, Kerr, & Carroll, 1990;

Moran & Cutler, 1991; Ogloff & Vidmar, 1994; Padawer-Singer &

Barton, 1975), disclosure of his or her prior record (Greene &

Dodge, 1995), current events in the news (Greene & Loftus, 1984),

incriminating testimony ruled inadmissible by the judge (Carretta &

Moreland, 1983; Pickel, 1995; Sue, Smith, & Caldwell, 1973; Thompson,

Fong, & Rosenhan, 1981; Wissler & Saks, 1985), hideous crime-scene

images (Kassin & Garfield, 1991), clearly coerced

confessions (Kassin, in press; Kassin & McNall, 1991; Kassin &

Wrightsman, 1980), a presumptuous "death qualification" voir dire

(Haney, 1984), highly suggestive cross-examination questions

(Kassin, Williams, & Saunders, 1990), and hearsay (Schuller,

1995).

Jurors' susceptibility to the influence of information that they

should, and often try to, ignore reflects a more general set of biases

of social perception and social cognition. Research in nonlegal

contexts has demonstrated a variety of ways in which perceivers'

inferences and judgments are influenced by information that the

perceivers themselves consider irrelevant or would like to ignore.

For example, the impact of relevant, diagnostic information on

perceivers' impressions, judgments, and predictions is often diluted

by the presence of irrelevant information (Fein & Hilton, 1992;

Hilton & Fein, 1989; Kahneman & Tversky, 1973; Locksley,

Hepburn, & Ortiz, 1982; Nisbett, Zukier, & Lemley, 1981).

Stereotypes about particular categories or groups of people may

influence perceivers' impressions even if they do not endorse the

stereotypes (Devine, 1989) or are actively trying to suppress

thoughts about them (Macrae, Bodenhausen, Milne, & Jetten,

1994). The decisions made by cognitively busy perceivers are

quite vulnerable to the influence of information that they know to

be untrue (Gilbert, Tafarodi, & Malone, 1993). Perceivers often

cannot resist drawing dispositional inferences from an actor's

behavior even if they realize that the behavior is uninformative

about the actor in light of situational factors that could have

influenced or mandated the behavior (Gilbert & Malone, 1995;

Jones, 1979; Miller, Schmidt, Meyer, & Colella, 1984).

The courtroom may be a particularly interesting context in

which to study these kinds of biases. In contrast to the social

perceivers in the typical laboratory studies of these phenomena,

the social perceivers in the jury box often are faced with a situation

in which they must process an overwhelming amount of

information--both relevant and irrelevant--and in which the

consequences of their judgments are dramatically heightened in

importance and immediacy. Given the biases that affect perceivers

even in more familiar, less high-pressure settings, it seems

especially important to have effective safeguards against such

biases in the courtroom.

It is widely assumed that jury trials contain three procedural

safeguards against the biasing effects of nonevidence on individual

jurors. One proposed safeguard is the voir dire, the process by

which prospective jurors are questioned under oath and challenged

by the lawyers if they appear predisposed to favor a particular

outcome. Research on mock jurors as well as actual juries has found

that trial lawyers are generally unable to use

voir dire to eradicate the biasing effects of pretrial publicity (Kerr,

Kramer, Carroll, & Alfini, 1991; Zeisel & Diamond, 1978). Indeed,

Dexter, Cutler, and Moran (1992) found that even an unusually

extended, attorney-conducted voir dire designed to eliminate the

effects of pretrial publicity through educating jurors, eliciting

commitments from them, and making them feel accountable was

not effective in reducing the impact of pretrial publicity on

mock jurors' verdicts.

Second, it could be argued that jury deliberation serves to

mitigate the biases exhibited by individual jurors. Research has

illustrated two important problems with this idea. One problem is

that jury verdicts rarely differ from the average individual juror's

initial, predeliberation votes (Kalven & Zeisel, 1966; Kerr, 1981;

Sandys & Dillehay, 1995; Stasser & Davis, 1981). Moreover, to

the extent that deliberation does have an effect, it is likely to

exacerbate rather than attenuate prejudices through the

phenomenon of group polarization (Carretta & Moreland, 1983;

Kramer et al., 1990; Padawer-Singer & Barton, 1975; but see

Kerwin & Shaffer, 1994, as an exception).

The third safeguard against the biasing effects of extralegal

information is the process by which the judge admonishes jurors to

ignore or disregard nonevidentiary material. Here again, research

reveals the ineffectiveness of the proposed solutions. Many

researchers have found that mock jurors are biased by inadmissible

testimony after receiving mild or even severe admonishments, legal

explanations, or cautionary instructions to disregard (Carretta &

Moreland, 1983; Kassin et al., 1990; Pickel, 1995; Sue et al., 1973;

Thompson et al., 1981; Wissler & Saks, 1985; Wolf &

Montgomery, 1977).

The fact that nonevidentiary factors not only bias juries but

also are relatively impervious to judges' instructions is less

surprising when one considers the multiple factors that contribute

to these effects:

* First, jurors may not fully understand or agree with the

explanations about why they should disregard nonevidentiary

information to which they were exposed (Kadish & Kadish,

1971; Thompson et al., 1981; Wissler & Saks, 1985).

* Second, a judge's command to disregard the testimony calls

attention to the testimony, and it may also cause jurors to

experience psychological reactance (Brehm, 1966) and defy

the judge's orders. Indeed, although strong judicial instruction

to disregard is often cited as a potential method of reducing the

lingering effects of inadmissible testimony, such instruction

may result in an even stronger effect of the testimony on both

verdict and sentencing (Wolf & Montgomery, 1977).

* Third, even jurors who want to comply to the judge's

instructions are likely to have a difficult time ignoring or

forgetting nonevidentiary information such as incriminating

testimony that is ruled inadmissible. This is particularly

difficult because the inadmissible information

is often more vivid, compelling, and memorable than is

the explanation about why jurors should disregard it.

Moreover, research in nonlegal settings shows that people

often have difficulty suppressing a thought or image upon

instruction (Wegner, 1994; Wegner, Schneider, Carter, &

White, 1987). Furthermore, newly created beliefs sometimes

endure even after the evidence on which they were

supposedly based is discredited (Anderson, Lepper, &

Ross, 1980; Johnson & Seifert, 1994; Ross, Lepper, &

Hubbard, 1975; Schul & Burnstein, 1985). jurors may fall

victim to this belief perseverance effect when they first hear

the incriminating testimony and then learn why the

testimony is not valid.

* Fourth, based on research in nonlegal settings concerning

"change-of-meaning" (Asch, 1946) or priming (e.g., Higgins,

Rholes, & Jones, 1977; Srull & Wyer, 1979), it is plausible

that to the extent that jurors think that the inadmissible

information may be true, their interpretation of evidentiary

information that they are allowed to use may be influenced

by the inadmissible …