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The Psychological Foundations of Evidence Law$
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Michael J. Saks and Barbara A. Spellman

Print publication date: 2016

Print ISBN-13: 9781479880041

Published to NYU Press Scholarship Online: May 2017

DOI: 10.18574/nyu/9781479880041.001.0001

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Instructions to Disregard and to Limit Use

Instructions to Disregard and to Limit Use

(p.85) 3 Instructions to Disregard and to Limit Use
The Psychological Foundations of Evidence Law

Michael J. Saks

Barbara A. Spellman

NYU Press

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

Keywords:   cognitive, disregard, gatekeepers, harmless error, inadmissible evidence, judges, jurors, limiting instructions

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