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Simple Jury Persuasion: When a Picture Can Sink Your Case

Friday, October 26, 2012
posted by Rita Handrich

We are big fans of effectively done visual evidence. And we are perhaps equally big fans of the hindsight bias, often referred to as the “I knew it all along” bias. The research literature review we are examining today combines the two (visual evidence and that pesky hindsight bias) in a frighteningly relevant way for the litigation advocate.

The authors essentially review the literature on hindsight bias and discuss ways to disrupt that particular bias. Specifically, they discuss how hindsight bias is composed of three levels: foreseeability (“I knew it would happen”); inevitability (“It had to happen”) and memory distortion (“I said it would happen”). We hear these aspects of hindsight bias routinely in our pretrial research. Hindsight bias is particularly tough to disrupt since (drumroll, please…) “hindsight is 20/20”. When we know what happened back then, it’s harder to believe the actors in the particular drama couldn’t have seen it coming. And we have an amazing ability to believe that we knew it before we knew it.

What you may not have considered is how visual evidence can work against you and reinforce hindsight bias! While this is only one aspect of what is a pretty impressive work on hindsight bias and how to disrupt it–we thought it was a particularly useful one for trial advocates to know. The naïve observer would think that clear and specific visual evidence would always be useful for lawyers in the courtroom. But they would be naïve (like we said).

“Ideally, these visual aids would clarify complex information and therefore confer fairer judgment. In practice, however, such forensic animation can obscure the inherent uncertainty of evidence and cause jurors to become overconfident.”

And overconfidence reinforces hindsight bias. In short, what can happen is that jurors believe the animation depicts what actually happened rather than a best approximation of the events. The writers review past research showing that animations more than doubled the hindsight bias (by enhancing viewers’ sense of the inevitability of the event) when compared to a low-tech text and diagram method of presenting information.

And they don’t stop there! Observers ascribe greater responsibility to whichever party dominates the visual scene. The writers refer to the prior research on camera angles in videotaped confessions–when the camera shows only the detainee rather than both the detainee and the interrogator–observers are more likely to believe the detainee is guilty even when the confession is inconsistent or implausible. If the camera shows both the interrogator and detainee viewed from the side, observers are more able to evaluate the videotape objectively.

Computer animations of, for example, traffic accidents can be readily created to depict an event from almost any point of view.

In events with complex causality, such as traffic accidents, the hindsight certainty that the accident could have been avoided if not for the actions of a particular driver can be heightened if that driver occupies a position of visual salience within the computer-animated scene.”

While you can obviously ensure animations do increase hindsight bias by not paying attention to their recommendations, these writers recommend two strategies for ensuring animations do not increase hindsight bias.

Use multiple angle and points of views in animations.

Use simulated experiments during animation development where you remove some parts of the data set. How does the animation change? Does the change support or contradict the current interpretation?

Roese, NJ, & Vohs, KD (2012). Hindsight bias. Perspectives on Psychological Science, 7 (5), 411-426

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