72 Pages Posted: 19 Aug 2015 Last revised: 29 Jun 2016
Date Written: August 17, 2015
Judges and juries are frequently called upon to evaluate a party’s actions in retrospect — with the benefit of hindsight. Traditionally, courts and scholars have been understandably wary about how hindsight bias influences verdicts, focusing on how to keep outcome information away from jurors and how to minimize its influence on adjudication. But outcome information can be probative evidence: Bad outcomes can be indicative of bad decisionmaking. In this Essay, I aim to rehabilitate the use of outcome information by conceptualizing it as a new category of evidence: hindsight evidence. First, I develop a framework for deciding how much weight to afford hindsight evidence and whether it should be admitted to a jury under Rule 403, which requires judges to weigh probative value against prejudicial impact. As for relevance and probative weight, I show that hindsight evidence is probative to the extent that facts supporting one party’s theory of the case have a greater tendency to generate that outcome than facts supporting the other party’s theory. As for prejudice, I review the research on hindsight bias and the factors that mitigate its impact. Finally, I apply this framework to four paradigmatic examples from diverse areas of the law — civil rights, contracts, special education law, and civil procedure — where courts have disagreed about whether to consider hindsight evidence. Ultimately, I conclude that a deeper theoretical understanding of how hindsight evidence operates will allow courts to embrace its value more readily.
Keywords: evidence, hindsight bias, cognitive science, bayesian, inference to the best explanation, excessive force, liquidated damages, IDEA
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