When being wise after the event results in injustice: Evidence for hindsight bias in judges’ negligence assessments.

Abstract

Research on hindsight bias has demonstrated that people perceive and evaluate events differently once they know about their outcome. One facet of hindsight bias is that people often perceive past events as more foreseeable than they do without outcome knowledge. This finding is of great importance in the legal context. Specifically, negligence judgments are based on the decision-makers’ evaluation of how foreseeable the harm that occurred was. Crucially, legal decision-making always takes place after some harm has already occurred (i.e., in hindsight). Whereas numerous studies already document a hindsight bias in laypeoples’ negligence judgments, the evidence for professional judges is sparse and inconsistent. We conducted an experiment with judges and found negligence judgments in a criminal law case to be also biased by hindsight. Judges with outcome knowledge perceived the occurred harm as significantly more foreseeable, which in turn led to a more frequent affirmation of negligence. We discuss these findings with a focus on implications and potential countermeasures.

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