at 813 (Flaum, J., dissenting) (“he evidence presented at trial on the issue of whether the deceased was armed was relevant . . . .” (emphasis omitted)). at 810–11 (Cummings, J., dissenting) see also id. According to these dissenters, knowledge that the driver was unarmed could help the jury evaluate both the “type of movement” the deceased made and the credibility of the officer-witness. Three dissenting judges (and one concurring judge) disagreed. The fact that the deceased was unarmed is not at all relevant to the jury’s determination, the majority wrote, because the jury must not “possess more information than the officer possessed when he made the crucial decision.” 3 3 Berry, a majority of the Seventh Circuit, sitting in banc, answered these questions in the negative. If the driver’s family files a section 1983 lawsuit against the officer, claiming that the officer used excessive force in violation of the Fourth Amendment, can the plaintiff introduce evidence that the driver was unarmed? Does the absence of any weapon make it less likely that the officer’s actions were “‘objectively reasonable’ in light of the facts and circumstances confronting ” “on the scene”? 1 1 A search of the driver’s body fails to find a weapon. At that moment, the officer fires into the car, killing the driver instantly. The officer will later describe this as a “quick movement,” like “he was going to reach for a weapon,” although other witnesses will dispute that characterization. As the officer approaches the car, the driver reaches into his coat. The officer orders the men inside to raise their hands-he must do so three times before they comply, and when their hands are raised the occupants exchange a look. The officer and his partner move toward the vehicle with their weapons raised. The passenger, known to the officer as a suspect in several prior crimes, fits the description of a man who robbed a nearby store minutes earlier. Ultimately, I conclude that a deeper theoretical understanding of how hindsight evidence operates will allow courts to embrace its value more readily.Ī police officer approaches a car occupied by two men. 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. As for prejudice, I review the research on hindsight bias and the factors that mitigate its 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. 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. In this Essay, I aim to rehabilitate the use of outcome information by conceptualizing it as a new category of evidence: hindsight evidence. But outcome information can be probative evidence: Bad outcomes can be indicative of bad decisionmaking. 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. Judges and juries are frequently called upon to evaluate a party’s actions in retrospect-with the benefit of hindsight.
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