EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, January 29, 2008

Evidence And Ethics 2: Professor Todd Pettys' The Emotional Juror

University of Iowa College of Law Professor Todd Pettys' contribution to the Evidence and Ethics Symposium is The Emotional Juror.  The article addresses the ethical issue of what obligation trial attorneys (partularly prosecutors) and judges have to try to minimize the emotional impact of visceral evidence.  While part of Pettys' argument is that attorneys and judges do have such an obligation when evidence is particulary incendiary, his larger point is that the legal community too frequently and simplisticly labels emotional evidence as prejudicial.

He notes that while other disciplines have increasingly found that emotions and rationality are inextricably and usefully linked, the legal community has stubbornly adhered to a reason/emotion dichotomy under which emotional evidence is categorically deemed "unfairly prejudicial" under Rule 403.  Pettys contends that "the legal community  needs to move beyond the notion that all emotional influences automatically fall on the 'unfair prejudice' side of the balance that Rule 403 prescribes for testing the relative weight of evidence's probative value and potential for unfair prejudice."  Instead, "[l]egal professionals need to understand the ways in which emotions aid rational decision making, while also better understanding the ways in which emotions can understandably skew jurors' judgments."

Part I of the article opens with a brief, three-part definition of the term "emotions."  Part II considers the roles emotions play when people make decisions by looking at recent research.  Pettys pays particular attention to Damasio's theory of somatic markers, which posits that there are so many  relevant factors in any decision such that a person would spend an inordinate amount of time making decisions but for emotions, which "help us sort through the morass."  He also notes how emotions help us determine which factors are most salient in any decision and prompt us to "take certain kinds of action," based upon factors such as cognitive dissonance and the use of emotions as "commitment devices."

Part III then applies this research to three situations where jurors are influenced by emotions that arise upon hearing or seeing particular items of evidence:  (1) those that relate to jurors' efforts to make demeanor-based assessments of witnesses' credibility, (2) those that relate to jurors' efforts to constrict coherent narratives that account for all of the credible evidence to which they have been exposed, and (3) those that relate to jurors' willingness to render a verdict that is faithful to the facts that they believe the evidence has established.

One of the main points Pettys makes is that "[r]ather than naively tell jurors to ignore their emotions, we need to encourage jurors to engage in what Samuel Pillsbury calls 'emotional self-examination,' reserving Rule 403 for those instances in which we believe such encouragement would be ineffectual."  In other words, instead of excluding potentially inflammatory evidence under Rule 403 and telling jurors to ignore their emotions, we should tell jurors to reflect on their emotions, "to try to identify the appraisals on which those emotions are based, to think carefully about whether those appraisals are warranted by the witnesses' testimony..., and to think carefully about whether those appraisals are consistent with all of the other evidence...."

The article is important for the legal community as a whole and an essential read for trial judges and lawyers who are frequently presented with the question of what type of emotional evidence to submit and admit.  I definitely leaned more toward the side of submitting and admitting most emotional evidence, but my beliefs were called into question as a result of hearing about two recent Australian mock trial  studies suggesting that jurors presented with "gruesome evidence," such as descriptions or images of torture and mutilation, are up to five times more likely to convict a defendant than jurors not privy to such evidence.  I asked Professor Pettys what he thought about these findings, and he responded as follows: 

"I have not examined the Australian mock jury studies that you've cited, and so my initial response is a little tentative.  In general terms, let me offer the following thoughts.  Scholars often appear to assume that when the admission of a certain type of evidence drives conviction ratesup, the evidence's influence is somehow illegitimate.  Scholars certainly often make that assumption with emotionally powerful evidence--they often assume that, if the admission of such evidence leads to higher conviction rates, the evidence is somehow acting on an irrational, or sub-rational, level.  I readily concede that emotionally powerful evidence presents this risk--hence my indication in my Fordham essay that judges should try to guard against such effects.  I believe, however, that the standard analysis of such cases is too one-sided, assuming too quickly that the evidence's influence is illegitimate.

Suppose I designed a study in which my hypothesis were as follows:  Citizens find it extraordinarily difficult--both emotionally and morally--to convict a fellow citizen of a heinous crime, such as murder.
I hypothesize that, in order to feel sufficiently emboldened to send a fellow citizen to death or life imprisonment, the jurors need to be squarely confronted with the raw, ugly facts of the crime--by seeing and hearing such evidence, the jurors will be able to summon the moral and emotional fortitude they will need in order to convict.  In testing my hypothesis, I find that the admission of gruesome evidence leads to higher conviction rates.

Now, what should one conclude from such a study?  If my hypothesis at the outset were that emotionally loaded evidence makes jurors behave less rationally, one might conclude that the results support my
hypothesis.  If, on the other hand, my hypothesis at the outset were that jurors are reluctant to convict even in the face of persuasive evidence, and that they need help summoning the moral and emotional
courage to follow where the evidence leads, then wouldn't the very same results also seem to support my hypothesis?

I'm not suggesting that all studies of the matter--including the Australian study (about which I know virtually nothing)--are flawed.  I am suggesting, however, that there are both legitimate and illegitimate ways in which emotionally powerful evidence might drive up conviction rates, and that it's important to distinguish between those two possibilities when considering what kind of effects emotionally powerful evidence exerted in a particular case."



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