The Litigation Psychology Podcast - Episode 287 - Countering Juror Hindsight Bias: What the Defense Can Do

Steve Wood, Ph.D. and Linda Khzam, M.A. break down the topic of hindsight bias and its impact on juror decision-making. They explain how learning an outcome makes jurors believe it was predictable all along, leading to exaggerated foreseeability and unrealistic expectations of what defendants “should have known.”

Steve and Linda discuss how hindsight bias appears across different case types from trucking and transportation to incidents involving police officers to decades-old sexual assault and molestation cases where jurors often apply modern norms and knowledge to past events. They also highlight how technology, especially video evidence, further expands hindsight bias by giving jurors clarity and insight that defendants never had in real time.

Steve and Linda also cover counterfactual thinking (i.e., “If only they had done X”) and how plaintiffs use it to oversimplify causation. Lastly, they outline how defense counsel can confront hindsight bias during voir dire by using relatable examples and consistently reframing what was knowable in the moment rather than after the fact.