Emotionally Objective
Emotionally Objective:
I. INTRODUCTION Aristotle claimed that “the law is reason free from passion.”1 However, examination of any criminal trial challenges that assertion.2 Trial lawyers are trained to persuade not only with facts, but also with stories.
Federal Rule of Evidence 403 and Emotions Influencing Jury Decision Making
Previous experiments have made clear that juries react more to evidence that is emotional in nature. Extending that principle, experiments have illustrated that jurors are more likely to render verdicts against a side that angers or disgusts them, and they are more likely to render more punitive damages against parties that anger or disgust them. Jurors have been shown to react most extremely and frequently to anger and disgust as opposed to other emotions.3 Comparing the results of a past experiment with Richard Lazarus’ emotions theory, the relationship was clear: anger and disgust lead to the strongest reaction from individuals.4 Sadness, by contrast, causes the reverse in individuals, and it will often cause them to close off and not act.5 Fear has been explored as well. Previous experiments suggest that when individuals feel fear, they question and seek more information.6
Shauli Bar-On University of Southern California Abstract The only individual right inscribed in the Declaration of Independence, Constitution, and Bill of Rights is the right to a trial by jury. By vesting fact-finding in a jury of one’s peers, the American legal system ensures that the government must gain the approval of its citizens before depriving an individual of his or her liberty. However, the legal system’s Framers did not relinquish all power to jurors; in fact, they expressed an inherent distrust of them. After years of Supreme Court drafting, Congress codified the Federal Rules of Evidence (FRE) in 1975. The rule that most illustrates a distrust of juries is FRE 403, which holds that relevant evidence may be excluded if its probative value is substantially outweighed by a danger of unfair prejudice. In other words, evidence that has a danger to unfairly inflame the passions of the jury by being overly emotional is blocked from their review. The following experiment tested whether Rule 403 is necessary: whether the average person, when exposed to evidence that would otherwise be excluded under this rule, truly would be overcome by emotion, so much so that it causes him or her to reverse his or her verdict. By comparing emotionally neutral evidence with evidence designed to induce discrete emotions, this experiment suggests that a juror’s emotions play a larger role than his or her demographics or previous experiences in influencing his or her judgement. Of the emotions elicited, sympathy for the defendant played the most significant role, followed by anger, fear, and sadness.
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In this article, I discuss the origins of Federal Rule of Evidence 403 and its intended purpose, provide background information on Lazarus’ emotions theory as it relates to the jury process, compare my experiment to prior experiments that attempted to measure emotions among jurors, and, finally, detail the methodology and results of this study. By comparing emotionally neutral evidence with evidence designed to induce two discrete emotions, anger and fear, this experiment found that a juror’s emotions played a larger role than his demographics or previous experiences in influencing his judgement. Of the emotions elicited, sympathy for the defendant played the most significant role, followed by anger, fear, and sadness. This experiment suggests that, everything else being equal, an average person may be overcome by emotion, so much so that emotion determines his or her verdict when exposed to evidence that would otherwise be excluded under Rule 403. II. RELEVANT BACKGROUND A. Federal Rule of Evidence 403 The jury process grew out of the traditions of English law. Its underlying purpose was to ensure that a defendant’s fate is not decided by the government but, rather, by the community in which he or she resides. As the famed defense attorney Johnnie Cochran once put it: The existence of the jury is the most powerful expression of the American people’s ultimate faith in the virtue of popular sovereignty. In the most critical matters—often involving life and death—we trust the interests of our community, not highly trained experts, towering intellectuals, or even elected officials. We entrust our welfare to twelve ordinary American people. We rely on their conscience, their goodwill, and the wisdom of their collective experience to dispense justice—without which liberty itself is a meaningless abstraction.7 Cochran, of course, acknowledges that juries sometimes render inaccurate verdicts or are persuaded 1 Aristotle, 1287a Politics Book III 32. 2 Aristotle may be discussing the law itself, not the application of the law in criminal trials, as Cochran discusses later, but the point still stands: passion is inherent in the law’s application. 3 Neil Feigenson, Jurors’ Emotions and Judgments of Legal Responsibility and Blame: What Does the Experimental Research Tell Us?, 8 Emotion Rev. 26, 27 (2015); Niel Feigenson & Jaihyun Park, Emotions and Attributions of Legal Responsibility and Blame: A Research Review, 30 Law & Hum. Behav. 143, 149 (2006); Jennifer Lerner & Larissa Tiedens, Portrait of the angry decision maker: How appraisal tendencies shape anger’s influence on cognition, 19 J. Behav. Decision Making 115, 120 (2006). 4 Feigenson, supra note 2 at 27; Feigenson, supra note 3 at 149; Lerner & Tiedens, supra note 4 at 120; Jessica Salerno & L, Peter-Hagene, The Interactive Effect of Anger and Disgust on Moral Outrage and Judgments, 24 Psychol. Sci. 2069, 2072 (2013). 5 Carolyn Semmler & Neil Brewer, Effects of Mood and Emotion on Juror Processing and Judgments, 20 Behav. Sci. & L. 423, 430 (2002). 6 Id. 7 Johnnie L. Cochran and Tim Rutten, Journey to Justice 187 (1996).
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