Judicial Notebook

In Sprint/United Management Co. v. Mendelsohn (Docket #06-1221), the U.S. Supreme Court is asked to consider the admissibility of "me too" testimony in an age discrimination case. "Me too" evidence consists of employees other than the plaintiff testifying that they believed they were also fired because of age by the same company. In this case, Mendelsohn was laid off as part of a reduction-in-force by Sprint. In support of her claim that she was the victim of age discrimination, Mendelsohn proffered the testimony of five older employees who were also laid off as part of the reduction, but not by the same supervisor. Previous cases allowed for the testimony of other "similarly situated" employees to demonstrate a "discriminatory environment." Sprint argues that the evidence is irrelevant because the employees did not share supervisors and/or that it should be excluded as prejudicial. Specifically, Sprint argues that these witnesses could confuse or mislead the jury by causing bias against Sprint and creating undue sympathy for Mendelsohn. Mendelsohn argues that the testimony is relevant and not prejudicial, and that even if it is prejudicial, any bias created can be cured by a jury instruction.

Psychology weighs in

There are several questions raised about how juries are likely to perceive "me too" evidence that could be informed by psychological research. First, is "me too" evidence perceived as intended-that is, would juries find it relevant and diagnostic of the company environment in an appropriate way? Second, is it likely to have a biasing impact, making jurors unduly sympathetic to the plaintiff? Third, can jury instructions cure this bias if it exists? There is a lack of psychological research directly investigating the impact of "me too" evidence on the jury, but research in other related areas indicates that Sprint may be right to be concerned. Research shows that anecdotal evidence, such as a person's own story, is very powerful, more so than statistical evidence that could alternatively be presented. In particular, negative information of any kind is relied upon heavily in making attributions. An analogous type of evidence that has been well researched is evidence about prior bad acts, typically previous convictions. Research indicates that information about prior bad acts creates a bias against the defendant. Similar bad acts are more likely to be biasing than prior bad acts that are dissimilar from the crime with which the defendant is currently charged. Evidence about prior bad acts is even more powerful when the rest of the evidence is weak-which is exactly when the "me too" type of circumstantial evidence might be used in a case. This research would indicate that "me too" evidence might be relied upon heavily because it implies negative character information about the company and its employees, but if a jury finds it not similar enough (for example, because the employees were fired by different supervisors), they might not perceive it as relevant.

This case also raises the issue of whether jury instructions would cure any bias created by the admission of "me too" evidence. Instructions have been shown to be an ineffective means of making jurors disregard inadmissible evidence or limit the use of evidence to particular facets of a case, such as limiting the use of prior criminal records to the assessment of credibility and not to guilt.

Instructions to disregard or to limit the use of evidence may more likely be effective when jurors are already suspicious of the quality of, reliability of or motivation behind the testimony. Although the intent of limiting instructions is to reduce bias, they can also create a "backfire effect," making the jurors rely on the biasing information even more because it is made salient by the instructions. This backfire effect can increase bias against the defendant in terms of liability, damages and negative character attributions about the defendant (for a review, see Joel Leiberman's 2000 article in Psychology, Public Policy, and Law, (Vol. 6, No. 3, pages 677-711). This body of research indicates that instructions might not cure any bias created by "me too" evidence.

Striking a balance

Psychological research on the effect of such evidence would assist courts (and the Supreme Court in this case in particular) in determining when "me too" evidence is biasing and what types of safeguards can be effectively used to decrease this bias. Research on these topics could help courts strike a balance in the admission of testimony that would allow plaintiffs to mount a successful case when appropriate and would prevent bias against the defendant in jury decision-making.

This case was scheduled for oral argument on Dec. 3.

"Judicial Notebook" is a project of APA's Div. 9 (Society for the Psychological Study of Social Issues).