The Unintended Consequences of Local Rules

Many legal rules are based on hunches about human behavior that have not been tested empirically. A behavioral analysis of these rules can illuminate whether they work as policy makers intended or whether they have unforeseen, systematically negative effects. Behavioral analyses of legal rules, unfortunately, are in short supply. This is particularly true with respect to local procedural rules that govern the everyday operation of trials and are left to the discretion of trial courts. This Article begins to fill that gap by empirically examining one of these local procedural rules: the one allowing jurors to take notes during trial. Intuitively, few would question the practice of jury note taking. Permitting, even encouraging, jurors to keep track of evidence seems like an obvious way to ensure the fidelity of verdicts, especially as trials and evidence become increasingly complex; however, an empirical test of note-taking reveals that the intuition may be wrong. More specifically, this Article reports the results from an original experiment that evaluated whether note-taking, under certain circumstances, can affect trial outcomes in unexpected ways. Drawing on literature from behavioral law and economics, this experiment demonstrated that jury note-taking can exacerbate a phenomenon known as “vividness bias,” which is the extent to which vivid information affects social judgment independent of its probative value. This surprising finding has implications for the ways in which heterogeneous, local procedural rules affect the transparency, equity, and accuracy of jury verdicts. And it suggests that there is a compelling need for additional empirical testing of the behavioral intuitions behind procedural rules