The emotional juror

Fordham Law Review

Volumn 76, Issue 3, 2007, Pages 1609-1640

  Pettys, Todd E ^a,b  

^a Department of Law ^*

^b UNIVERSITY OF IOWA COLLEGE OF LAW   (United States)

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EID: 39349100644     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (262)

1. Aristotle, On Rhetoric: A Theory of Civic Discourse 112 (George A. Kennedy trans., Oxford Univ. Press 2d ed. 2007).
2. See,- e.g., id. at 113 ("The emotions . . . are those things through which, by undergoing change, people come to differ in their judgments. . . .");
3. id. at 249 (advising speakers who wish to be persuasive to "lead the hearer into emotional reactions").
4. See Michael Frost, Ethos, Pathos and Legal Audience, 99 Dick. L. Rev. 85, 90 (1994) ("Aristotle and the other [Greek and Roman] rhetoricians decry the effect emotions may have on judges, but grudgingly concede that, since they often have a profound effect, advocates must exploit them whenever possible.").
5. See W. George Turski, Toward a Rationality of Emotions: An Essay in the Philosophy of Mind 2 (1994) (stating that, in Plato's view, "the emotions are what is bestial and animal-like in us, to be ruled and controlled by the rational soul");
6. R.T. Allen, Passivity and the Rationality of Emotion, 68 Mod. Schoolman 321, 321 (1991) (stating that European philosophers have persistently distinguished "between a lower and passive [and emotional] self which is affected, and a higher and active [and rational] self. . . which governs itself and the lower");
7. Dylan Evans, The Search Hypothesis of Emotion, 53 Brit. J. Phil. Sci. 497, 497 (2002) (stating that Plato believed that the more we could free ourselves from emotional influences, the more rational we would be);
8. Nancy Sherman, The Role of Emotions in Aristotelian Virtue, in 9 Proceedings of the Boston Area Colloquium in Ancient Philosophy 1, 3 (John J. Cleary & William Wians eds., 1993) (stating that, in the eyes of Immanuel Kant and others, "emotions are viewed as the enemy of both reason and morality").
9. See Turski, supra note 4, at 2 ("The extent to which so many of us find this view natural and uncontroversial only confirms the power and longevity of the Platonic paradigm in our tradition.");
10. Nico H. Frijda et al., The Influence of Emotions on Beliefs, in Emotions and Beliefs: How Feelings Influence Thoughts 1, 2 (Nico H. Frijda et al. eds., 2000) ("The notion that emotions determine beliefs was a common assumption during much of human history, and probably still is. . . . In most discussions of the relations between emotion and cognition, the emphasis has been on the assumption that the former distorts the latter.");
11. Nancy Sherman, Is the Ghost of Aristotle Haunting Freud's House?, in 16 Proceedings of the Boston Area Colloquium in Ancient Philosophy 63, 66 (John J. Cleary & Gary M. Gurtler eds., 2000) ("[Aristotle's] explicit claim. . . is that we can change belief[s] by changing emotions. In so far as the rhetorician is in the business of influencing belief, this is important advice. Emotions and emotional mood affect judgment. . . .");
12. D. Don Welch, Ruling with the Heart: Emotion-Based Public Policy, 6 S. Cal. Interdise. L.J. 55, 60 (1997) ("Affective argumentation may be effective, but for many commentators that is an unfortunate feature of our public discourse that should be resisted.").
13. See, e.g., Peter B. Bayer, Not Interaction but Melding - The "Russian Dressing" Theory of Emotions: An Explanation of the Phenomenology of Emotions and Rationality with Suggested Related Maxims for Judges and Other Legal Decision Makers, 52 Mercer L. Rev. 1033, 1038 (2001) ("[W]hile not without the occasional notable exception, judicial opinions habitually profess a Platonic-Kantian credo that emotions have no legitimate place in legal decision making.");
14. Yoav Hammer, Expressions Which Preclude Rational Processing: The Case for Regulating Non-informational Advertisements, 27 Whittier L. Rev. 435, 459-60 (2005) (stating that advertisements can preclude rational processing when they "generate emotions");
15. Graham C. Lilly, The Decline of the American Jury, 72 U. Colo. L. Rev. 53, 57 (2001) ("Too often, to capture the jury's emotion is to win the case.");
16. Eric A. Posner & Cass R. Sunstein, Dollars and Death, 72 U. Chi. L. Rev. 537, 593 (2005) (listing "react[ing] emotionally to the case" as one of the ways in which juries may go astray when awarding tort damages). Of course, the condemnation of emotions is not universal within the legal world.
17. See, e.g., Peter W. Murphy, "There's No Business Like . . . ?": Some Thoughts on Acting in the Courtroom, 44 S. Tex. L. Rev. 111, 123 (2002) (arguing that appealing to jurors' emotions "in some manner" is an ethically appropriate and practically required component of trial practice).
18. Fed. R. Evid. 403.
19. Fed. R. Evid. 403 advisory committee's note; see also Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir. 1980) (explaining that evidence is "unfairly prejudicial if it appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on something other than the established propositions in the case" (internal quotation marks omitted));
20. Paul C. Giannelli, Understanding Evidence 120 (2d ed. 2006) ("Rule 403 comes into play only if the evidence is prejudicial in the sense that the jury cannot rationally evaluate it.");
21. Paul R. Rice, Best-Kept Secrets of Evidence Law: 101 Principles, Practices, and Pitfalls 24 (2001) ("The only prejudice that will warrant the exclusion of probative evidence is prejudice that unfairly biases the jury against the opposing side, by appealing to their emotions rather than their minds. . . .");
22. Andrew E. Taslitz, Abuse Excuses and the Logic and Politics of Expert Relevance, 49 Hastings L.J. 1039, 1046 (1998) (stating that most discussions of rational uses of evidence "are either devoid of discussions of emotion, or emotion is viewed as something to fear, a source of juror 'prejudice'").
23. Christopher B. Mueller & Laird C. Kirkpatrick, Evidence Under the Rules: Text, Cases, and Problems 61 (4th ed. 2000).
24. Julian L. Bush, Argument and Logic, 67 Mo. L. Rev. 463, 470 (2002);
25. accord Rosemary Nidiry, Note, Restraining Adversarial Excess in Closing Argument, 96 Colum. L. Rev. 1299, 1318 (1996) ("If the jury is supposed to decide solely on the evidence, a closing argument that appeals to other issues or emotions asks the jury to decide a case based on impermissible considerations.").
26. Albert L. Alschuler, Courtroom Misconduct by Prosecutors and Trial Judges, 50 Tex. L. Rev. 629, 636 (1972).
27. ABA Project on Standards for Crim. Justice, Standards Relating to the Administration of Criminal Justice 98 (1974).
28. Andrew Jay McClurg, The Rhetoric of Gun Control, 42 Am. U. L. Rev. 53, 66 (1992).
29. Cf. Christopher B. Mueller & Laird C. Kirkpatrick, Evidence 176 (3d ed. 2003) (stating that "no attempt is made to exclude . . . all evidence likely to evoke an emotional response").
30. For an interesting discussion of how attorneys might try to appeal to jurors' emotions in both rape and murder trials, see Joseph A. Colquitt, Evidence and Ethics: Litigating in the Shadows of the Rules, 76 Fordham L. Rev. 1641 (2007).
31. Even absent an ethical obligation, trial attorneys might find it tactically advisable to be sure that their emotional appeals are neither blatant nor disproportionate to the circumstances of the case at hand. See Raymond J. Brassard, What Jurors Say About Lawyers, 47 Boston B.J., Jan.-Feb. 2003, at 8, 9 ("Jurors resent appeals to emotion, passion or prejudice. Those appeals insult their intelligence and their ability to discharge their duty.");
32. Valerie P. Hans & Krista Sweigart, Jurors ' Views of Civil Lawyers: Implications for Courtroom Communication, 68 Ind. L.J. 1297, 1318 (1993) ("[J]urors expressed ambivalence about emotionality in the arguments. They liked a small amount, but resented extreme appeals to their sympathy.");
33. Donald M. Peters, Basics of Oral Argument, 32 Ariz. Att'y, Nov. 1995, at 18, 29-30 ("[A]void heavy-handed appeals to passion or emotion [in bench trials]. . . . By all means, however, make subtle appeals to emotion. Judges are human.").
34. Berger v. United States, 295 U.S. 78, 88 (1935) ("[W]hile [a prosecutor] may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.");
35. Model Rules of Prof 1 Conduct R. 3.8 cmt. 1 (2007) ("A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.");
36. Model Code of Prof 1 Responsibility EC 7-13 (1980) ("The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict").
37. Welsh White, Curbing Prosecutorial Misconduct in Capital Cases: Imposing Prohibitions on Improper Penalty Trial Arguments, 39 Am. Crim. L. Rev. 1147, 1152 (2002) (internal quotation marks omitted).
38. Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?, 44 Vand. L. Rev. 45, 46-47 (1991).
39. Id. at 97.
40. One point on which probably all can agree, however, is that it is improper for an attorney to appeal to emotions that are unrelated to the evidence that the court deems admissible. See, e.g., Martha C. Nussbaum, Poetic Justice: The Literary Imagination and Public Life 78 (1995) (arguing that jurors should disregard emotions that do not arise from the evidence presented by the parties);
41. Zacharias, supra note 18, at 98 (arguing that prosecutors can appeal to jurors' sympathies so long as those sympathies derive from the evidence admitted at trial);
42. cf. Welch, supra note 5, at 78 ("Inappropriate uses of affective argumentation [in public-policy debates] would be those that are not related to judgments based on available evidence . . . .").
43. A handful of legal commentators have already noted the shift taking place in other disciplines. See, e.g., Lynne N. Henderson, Legality and Empathy, 85 Mich. L. Rev. 1574, 1575 (1987) ("The avoidance of emotion, affect, and experiential understanding reflects an impoverished view of reason and understanding-one that focuses on cognition in its most reductionist sense.");
44. Louis A. Jacobs, Evidence Rule 403 After United States v. Old Chief, 20 Am. J. Trial Advoc. 563, 581 (1997) (noting that some in the legal community have begun to reject "[a] facile dichotomy between cognitive and emotional qualities");
45. Samuel H. Pillsbury, Emotional Justice: Moralizing the Passions of Criminal Punishment, 74 Cornell L. Rev. 655, 673 (1989) ("We need to discard the traditional opposition of Reason and Emotion and instead distinguish between emotions. In short, we need to distinguish those emotions which are morally appropriate from those which are not.");
46. Taslitz, supra note 8, at 1054 ("The emotionless person is an irrational person.").
47. Patricia Greenspan, Practical Reasoning and Emotion, in The Oxford Handbook of Rationality 206, 206 (Alfred R. Mele & Piers Rawling eds., 2004).
48. Ronald de Sousa, The Rationality of Emotion, at xv (1987).
49. Allen, supra note 4, at 322.
50. Yaniv Hanoch, "Neither an Angel nor an Ant": Emotion as an Aid to Bounded Rationality, 23 J. Econ. Psychol. 1, 18 (2002).
51. Antonio R. Damasio, Descartes' Error: Emotion, Reason, and the Human Brain 250 (1994).
52. See supra note 7 and accompanying text (quoting the relevant portion of Rule 403).
53. Cf. D. Craig Lewis, Proof and Prejudice: A Constitutional Challenge to the Treatment of Prejudicial Evidence in Federal Criminal Cases, 64 Wash. L. Rev. 289, 321 (1989) ("The mechanisms by which prejudicial evidence influences decision-making processes are only imperfectly understood. . . .").
54. Webster's Encyclopedic Unabridged Dictionary of the English Language 637 (1996).
55. See Greenspan, supra note 21, at 207;
56. accord C. Behan McCullagh, The Rationality of Emotions and of Emotional Behaviour, 68 Australasian J. Phil. 44, 46 (1990) ("Almost all philosophers have agreed that emotions have an object of some sort.");
57. Sherman, supra note 4, at 10 ("[For Aristotle], emotions are about something that we represent in thought. Emotions are intentional states.")
58. See Robert C. Roberts, Emotions: An Essay in Aid of Moral Psychology 112 (2003) ("A person can be depressed or melancholy, cheerful or elated, or fidgety or agitated without having any reasons for his state of mind, without being elated or depressed or agitated about anything . . . .");
59. Allen, supra note 4, at 324-25 (stating that, in contrast to emotions, moods such as happiness and depression do not have an "intentional structure");
60. McCullagh, supra note 29, at 46 ("Those [feelings] which appear to lack an object, such as general feelings of depression or cheerfulness, can be designated as 'moods.'").
61. Nussbaum, supra note 19, at 60.
62. See Patricia S. Greenspan, Emotions and Reasons: An Inquiry into Emotional Justification 4 (1988) (stating that one component of emotions consists of "evaluative propositions spelling out [the emotions'] intentional content");
63. Greenspan, supra note 21, at 207 ("The dominant approach in contemporary philosophy rests on assigning emotions an evaluative content.").
64. See Antonio Damasio, Looking for Spinoza: Joy, Sorrow, and the Feeling Brain 54 (2003) ("Emotions provide a natural means for the brain and mind to evaluate the environment within and around the organism, and respond accordingly and adaptively.");
65. Keith Oatley, Emotions: A Brief History 3 (2004) ("[E]motions are most typically caused by evaluations-psychologists call them appraisals-of events in relation to what is important to us: our goals, our concerns, our aspirations.");
66. Sherman, supra note 4, at 11 (tracing this view to Aristotle).
67. Allen, supra note 4, at 324.
68. Nussbaum, supra note 19, at 61;
69. cf. Roberts, supra note 30, at 76-80 (arguing that emotions are "construais" relating to our "concerns").
70. See Damasio, supra note 33, at 28 (stating that emotions involve physical changes that are either visibly apparent or "'visible' with current scientific probes such as hormonal assays and electrophysiological wave patterns");
71. Oatley, supra note 33, at 3 ("Emotions may include bodily changes such as a glow and smile of happiness, the pounding heart of anxiety, the clenched fist oranger.");
72. Frijda et al., supra note 5, at 5 (stating that emotions involve "physiological changes");
73. Pillsbury, supra note 20, at 675 (stating that, under the prevailing view of emotions in the philosophical and psychological literature, an "emotion is a cognitive assessment of a person or situation, which assessment is associated with a physiological sensation").
74. Damasio, supra note 25, at 131-34.
75. Antonio Damasio argues that the primary emotions are "fear, anger, disgust, surprise, sadness, and happiness." Damasio, supra note 33, at 44.
76. Damasio, supra note 25, at 131.
77. Id. at 134 (emphasis omitted);
78. see id. at 134-39 (discussing secondary emotions);
79. cf. Oatley, supra note 33, at 34 ("All humans start with much the same emotional repertoire, derived from genes. But effects of the genes are not fixed. They provide us with a start-up program that writes more of itself during interaction with the world."). These secondary emotions include such emotions as "sympathy, embarrassment, shame, guilt, pride, jealousy, envy, gratitude, admiration, indignation, and contempt."
80. Damasio, supra note 33, at 45.
81. See Nico H. Frijda & Batja Mesquita, Beliefs Through Emotions, in Emotions and Beliefs: How Feelings Influence Thoughts, supra note 5, at 45, 46 ("Although an influence of emotions upon beliefs is widely accepted and ancient wisdom, there is little research proving this.");
82. see also Frijda et al., supra note 5, at 5 ("There is . . . hardly any empirical research on these issues. . . . [T]here is much discussion of the effects of cognitions upon emotions, but very little discussion of the effects of emotions upon cognitions. We know little about the scope of such effects . . . .").
83. See Gordon H. Bower & Paul R. Cohen, Emotional Influences in Memory and Thinking: Data and Theory, in Affect and Cognition: The Seventeenth Annual Carnegie Symposium on Cognition 291, 292-304 (Margaret Sydnor Clark & Susan T. Fiske eds., 1982) (reviewing these findings);
84. see also Frijda & Mesquita, supra note 40, at 46 (noting that some research has been done concerning moods' influence on beliefs).
85. Scholars have, however, done provocative research on such matters. See, e.g., Neal Feigenson & Jaihyun Park, Emotions and Attributions of Legal Responsibility and Blame: A Research Review, 30 Law & Hum. Behav. 143, 147 (2006) ("Many studies. . . have shown that people in moderately positive moods tend to think more creatively and to be better at drawing associations and at inductive reasoning than people in a neutral mood, whereas people in moderately negative moods tend to be better at analytic and deductive reasoning." (citations omitted));
86. id. at 148 ("People in positive moods tend to make more positive evaluations of ambiguous information; people in negative moods tend to interpret the same information more negatively." (citations omitted)).
87. See supra notes 32-35 and accompanying text (discussing emotions' evaluative dimension).
88. Israel Scheffler, In Praise of the Cognitive Emotions and Other Essays in the Philosophy of Education 7 (1991);
89. see also id. at 6 ("Acquiring human significance through biographical linkage with critical features of the environment, our feelings come indeed to signify-to serve as available cues for interpreting the situation.").
90. Sherman, supra note 4, at 5;
91. accord Pillsbury, supra note 20, at 677 ("We use emotion to synthesize chaotic reality and give it personal meaning. Emotion provides the basic means for relating the inner subjective self to the outer objective world.").
92. See Bayer, supra note 6, at 1042 ("The quintessence of emotions is that they provide the cues that we must stop what we are doing, pay attention, consider what is happening around us, and adopt a course of response.");
93. Pillsbury, supra note 20, at 677 ("Emotions direct our attention to certain aspects of a situation, suggest certain approaches.").
94. Welch, supra note 5, at 73.
95. See generally John T. Cacioppo et al., The Affect System Has Parallel and Integrative Processing Components: Form Follows Function, 76 J. Personality & Soc. Psychol. 839, 839 (1999) ("The affect system has been sculpted by the hammer and chisel of adaptation and natural selection to differentiate hostile from hospitable stimuli and to respond accordingly.");
96. Matthew C. Keller & Randolph M. Neese, The Evolutionary Significance of Depressive Symptoms: Different Adverse Situations Lead to Different Depressive Symptom Patterns, 91 J. Personality & Soc. Psychol. 316, 317 (2006) ("Affect states . . . were shaped by [natural] selection to deal with the challenges posed by certain situations.").
97. Damasio, supra note 25, at 193.
98. See de Sousa, supra note 22, at 193 ("The philosophers' frame problem, roughly, is how to make use of just what we need from this vast store [of potentially relevant] information, and how not to retrieve what we don't need.").
99. Ronald de Sousa elaborates, What gives rise to the philosophers' frame problem is that we need to know whether a consequence will tum out to be relevant before drawing it. If it is relevant and we have not retrieved it, we may act irrationally. But if it is irrelevant and we have already drawn it, we have already wasted time. This is the problem at its most virulent: How do we know without finding out what not to find out if we know?
100. Id. at 194;
101. accord Scott Hendricks, The Frame Problem and Theories of Belief, 129 Phil. Stud. 317, 317 (2006) ("The frame problem is a research problem. When we figure out how human beings effortlessly recover information relevant to their present conditions, we will have solved it."). Others, including specialists in artificial intelligence, sometimes use the term "frame problem" to refer to phenomena not relevant here.
102. See Evans, supra note 4, at 501 (noting that the term is used in different ways, but that de Sousa and others use it to describe the problem "of when to stop listing what the possible consequences of action will be");
103. Hendricks, supra, at 318-19 (noting that philosophers and specialists in artificial intelligence use the term in different ways).
104. See supra notes 32-35 and accompanying text (discussing appraisals).
105. See Damasio, supra note 25, at 171-72, 192-94;
106. supra note 49 and accompanying text.
107. See Damasio, supra note 25, at 170.
108. Id.
109. See id. at 173;
110. see also supra notes 36-39 and accompanying text (discussing emotions' physiological dimension).
111. Damasio, supra note 25, at 173.
112. Id. at 174.
113. Id.;
114. see also Evans, supra note 4, at 503-05 (citing Damasio's theory with approval and stating that "[e]motions prevent us from getting lost in endless explorations of potentially infinite search spaces by providing us with both the right kind of test and the right kind of search strategy for each kind of problem we must solve");
115. Melissa L. Finucane et al., The Affect Heuristic in Judgments of Risks and Benefits, 13 J. Behav. Decision Making 1, 2 (2000) (stating that Damasio's theory provides "[o]ne of the most comprehensive and dramatic theoretical accounts of the role of affect in decision making" and using it to create the authors' own theory of affect heuristics);
116. Greenspan, supra note 21, at 208 (endorsing Damasio's theory and stating that "[e]motions serve to 'mark' practically significant thoughts with bodily (and hence affective) indicators of past experience," thus aiding practical reasoning).
117. See de Sousa, supra note 22, at xv ("[E]motions are among the mechanisms that control the crucial factor of salience among what would otherwise be an unmanageable plethora of objects of attention, interpretations, and strategies of inference and conduct.");
118. Hanoch, supra note 24, at 8 ("Focusing and directing our attention is one of the fundamental roles played by our emotions.").
119. Hanoch, supra note 24, at 18.
120. Karen Jones, Emotional Rationality as Practical Rationality, in Setting the Moral Compass 333, 339 (Cheshire Calhoun ed., 2004).
121. See id. at 341 ("[S]ometimes emotions preempt deliberation by presenting a single consideration as of overwhelming importance, and we act straightaway and without reflection.").
122. Yaniv Hanoch gives an example: In cases of high emotional intensity (such as finding one's partner unfaithful), agents are incapable of contemplating a wide range of options (e.g., should I take my partner to court or settle this with my own hands?), or of assigning probabilities (what are the chances that I will be convicted?) or utilities (is it worth serving time in jail?) to each option. Instead, a single option overrides all others . . . and determines the agent's subsequent actions.
123. Yaniv Hanoch, One Theory to Fit Them All: The Search Hypothesis of Emotion Revisited, 56 Brit. J. Phil. Sci. 135, 137 (2005).
124. See supra note 48 (noting the role of natural selection in shaping our affective systems).
125. See de Sousa, supra note 22, at 195 ("For a variable but always limited time, an emotion limits the range of information that the organism will take into account, the inferences actually drawn from a potential infinity, and the set of live options among which it will choose.");
126. id. at 200 (stating that emotions' "essential role lies in establishing specific patterns of salience relevant to inferences").
127. See Jones, supra note 61, at 341 ("Considerations that emotions lead us to experience as reason giving claim a place among the starting points of deliberation. That claim can be rejected. . . .");
128. see also supra text following note 47 (noting that we may consciously reject the appraisal on which an emotion is based).
129. See supra notes 32-35 and accompanying text (discussing appraisals).
130. Gerald L. Clore & Karen Gasper, Feeling Is Believing: Some Affective Influences on Belief, in Emotions and Beliefs: How Feelings Influence Thoughts, supra note 5, at 10, 28.
131. Id. at 33;
132. see also id. at 25 ("We are suggesting that beliefs are adjusted to be compatible with internal evidence in the form of feelings, just as they are adjusted to be compatible with external evidence from perceptual experience. . . . In this sense, we assert that feeling is believing.");
133. Frijda & Mesquita, supra note 40, at 53 (stating that some beliefs "are formed to justify or explain one's emotional appraisal").
134. Clore & Gasper, supra note 67, at 32-33;
135. see also id. at 33 ("Emotions of love, jealousy, anger, and fear represent commitments to particular beliefs, which the person 'tests' through selective attention to data.").
136. Jones, supra note 61, at 336;
137. see also Sherman, supra note 4, at 3 (noting that emotions are sometimes criticized for seemingly "fastening on evidence that is too restrictive, relying on standards of evidence that are too lax").
138. Frijda & Mesquita, supra note 40, at 54.
139. Id. at 67.
140. Id. at 67-68.
141. See Eddie Harmon-Jones, A Cognitive Dissonance Theory Perspective on the Role of Emotion in the Maintenance and Change of Beliefs and Attitudes, in Emotions and Beliefs: How Feelings Influence Thoughts, supra note 5, at 185, 185-90 (advancing this theory).
142. Cf. Greenspan, supra note 32, at 162 (noting that we sometimes take action in order to quell the unpleasant physical dimensions of an emotion).
143. See id. at 162-65 (making this observation);
144. id. at 174 ("Emotion makes a requirement of action harder to resist, in short, by making it an object of discomfort.").
145. Greenspan, supra note 21, at 216.
146. Id. at 215.
147. See id. at 216-17 (offering this example).
148. In addition to the research I cite in the following discussion, the reader can find a small number of additional studies concerning the effects of emotions on jurors' judgments. See, e.g., Carolyn Semmler & Neil Brewer, Effects of Mood and Emotion on Juror Processing and Judgments, 20 Behav. Sci. & Law 423, 433 (2002) (finding that jurors who are saddened by the testimony they hear in mock trials are better able to detect and recall inconsistencies in the testimony).
149. See James P. Timony, Demeanor Credibility, 49 Cath. U. L. Rev. 903, 904-05 (2000) ("For hundreds of years, judges or juries have decided the credibility of testimony on the demeanor of [witnesses], including the witness's appearance, attitude, and manner.");
150. Olin Guy Wellborn III, Demeanor, 76 Cornell L. Rev. 1075, 1077 (1991) ("The importance of demeanor as an indicator of credibility is commonly cited as a premise of the general requirement of live testimony, the hearsay rule, and the right of confrontation.").
151. Anderson v. Bessemer City, 470 U.S. 564, 575 (1985);
152. see also California v. Green, 399 U.S. 149, 158 (1970) (stating that viewing a witness's demeanor helps the jury assess that witness's credibility);
153. Lin v. Gonzalez, 446 F.3d 395, 400 (2d Cir. 2006) (stating that "[d]emeanor is virtually always evaluated subjectively and intuitively," and thus factfinders' credibility determinations are "accorded great deference").
154. See, e.g., 3 Kevin F. O'Malley et al., Federal Jury Practice and Instructions: Civil § 101.43, at 56 (5th ed. 2000) [hereinafter O'Malley, Civil] ("You may believe everything a witness says, part of it, or none of it. In considering the testimony of any witness, you may take into account many factors, including . . . the witness' appearance and manner while testifying. . . .");
155. id. § 105.01, at 161 ("You are the sole judges of the credibility of the witnesses and the weight their testimony deserves. You may be guided by the appearance and conduct of the witness, or by the manner in which the witness testifies . . . . Consider each witness'... demeanor or manner while testifying.");
156. 1A Kevin F. O'Malley et al., Federal Jury Practice and Instructions: Criminal § 15.01, at 350 (5th ed. 2000) [hereinafter O'Malley, Criminal] ("You, as jurors, are the sole and exclusive judges of the credibility of each of the witnesses called to testify in this case . . . . In making your assessment . . . you should. . . [c]onsider each witness' . . . appearance and manner while on the witness stand.").
157. See supra notes 37-39 and accompanying text (discussing primary and secondary emotions).
158. See supra notes 59-73 and accompanying text (discussing salience).
159. See Bella M. DePaulo et al., Deceiving and Detecting Deceit, in The Self and Social Life 323, 350-60 (Barry R. Schlenker ed., 1985) (discussing the development of children's ability both to detect lies and to minimize the risk that their own lies will be detected).
160. See supra notes 59-73 and accompanying text (discussing salience).
161. See supra notes 32-35 and accompanying text (discussing appraisals).
162. Miron Zuckerman et al., Verbal and Nonverbal Communication of Deception, 14 Advances in Experimental Soc. Psychol. 1, 39 (1981);
163. accord id. at 27 (discussing this research);
164. see also Michael J. Saks, Enhancing and Restraining Accuracy in Adjudication, Law & Contemp. Probs., Autumn 1988, at 243, 264 (citing this research and stating that "the law... might improve the ability of jurors to assess credibility by covering the faces of witnesses with masks"). Bella DePaulo and her coauthors elaborate, [S]ome of our favorite cultural stereotypes about liars do not withstand the test provided by the existing empirical data. For example, the studies that have been conducted so far do not support the notion that liars have shifty eyes - nor even shifty bodies; neither glances nor shifts in posture occur significantly more often when people are lying compared to when they are telling the truth.
165. DePaulo et al., supra note 86, at 339.
166. See DePaulo et al., supra note 86, at 330 (stating that "senders generally are successful at controlling their facial expressions so as to fool perceivers");
167. Zuckerman et al., supra note 89, at 39 (stating that "facial cues seem to be faking cues").
168. See Zuckerman et al, supra note 89, at 38-39 (summarizing these findings). DePaulo and her coauthors write, [L]iars blink their eyes more often, they have pupils that are more dilated, and they exhibit more adaptors (self-manipulating gestures, such as rubbing or scratching). They also give shorter, higher-pitched, and more hesitant answers that are cluttered with grammatical errors, repetitions, slips of the tongue, and other disfluencies. . . . Senders who are about to tell a lie take more time to plan their performance than do those who are about to tell the truth.
169. DePaulo et al., supra note 86, at 339.
170. See Jeremy A. Blumenthal, A Wipe of the Hands, a Lick of the Lips: The Validity of Demeanor Evidence in Assessing Witness Credibility, 72 Neb. L. Rev. 1157, 1195 (1993) ("Most of the behaviors received through the auditory channel that were associated with perceptions of deception were also observed during actual deception: increases in speech hesitations, speech errors, and in the pitch of a speaker's voice.");
171. Zuckerman et al, supra note 89, at 26-27 (presenting some of the relevant statistical data);
172. see also Blumenthal, supra (stating that tone of voice is a better indicator of deception than facial expressions);
173. DePaulo et al., supra note 86, at 327 ("Across dozens of studies, deception accuracy usually exceeds chance, although rarely by an impressive margin.");
174. id. at 329 (stating that "the voice can send a variety of different messages, [and]. . . is highly salient" and that "tone of voice cues are much more difficult for senders to control than either words or facial expressions"). Some writers overstate the extent to which empirical studies cast doubt on people's ability to make demeanor-based credibility determinations.
175. See, e.g., Consolidation Servs. v. KeyBank Nat'l Ass'n, 185 F.3d 817, 821 (7th Cir. 1999) ("Much pious lore to the contrary notwithstanding, 'demeanor' is an unreliable guide to truthfulness.");
176. Blumenthal, supra, at 1159 ("The studies establish that typical subjects are unable to use the 'manner and conduct' of a speaker to successfully detect deceptive information on any reliable basis.");
177. Saks, supra note 89, at 263 (noting the analysis performed by Zuckerman and his colleagues and stating that "[d]ecisions about whether a statement is the truth or a lie are made about as well as if one were tossing a coin");
178. Wellborn, supra note 81, at 1075 ("According to the empirical evidence, ordinary people cannot make effective use of demeanor in deciding whether to believe a witness.").
179. See generally Michael L. Seigal, A Pragmatic Critique of Modern Evidence Scholarship, 88 Nw. U. L. Rev. 995, 1012 (1994) (criticizing Wellborn for flirting with the "absurd outcome" that juries simply be given "a packet of written materials" instead of live testimony).
180. See, e.g., Chris F. Denove & Edward J. Imwinkelried, Jury Selection: An Empirical Investigation of Demographic Bias, 19 Am. J. Trial Advoc. 285, 285 (1995) ("Pick the right jury, and the battle is half won. But select the wrong jury, and the case is lost before evidence is even heard.");
181. Herald Price Fahringer, "Mirror, Mirror on the Wall . . .": Body Language, Intuition, and the Art of Jury Selection, 17 Am. J. Trial Advoc. 197, 197 (1993) (stating that "[j]ury selection is the most significant part of any trial" and that "experts in the field believe that eighty-five percent of the cases litigated are won or lost when the jury is selected");
182. William C. Slusser et al., Batson, J.E.B., and Purkett: A Step-by-Step Guide to Making and Challenging Peremptory Challenges in Federal Court, 37 S. Tex. L. Rev. 127, 129 (1996) ("Picking a jury is perhaps the most important part of any jury trial.").
183. Cf. Albert J. Moore, Inferential Streams: The Articulation and Illustration of the Trial Advocate's Evidentiary Intuitions, 34 UCLA L. Rev. 611, 616 (1987) ("[T]he same item of circumstantial evidence may often reasonably be seen as either proving or disproving one's case, depending upon the particular inferences the jurors draw.").
184. See Reid Hastie, Emotions in Jurors' Decisions, 66 Brook. L. Rev. 991, 994 (2001) (stating that jurors make decisions by trying to create "a coherent, comprehensive story to summarize the situation implied by credible evidence");
185. Nancy Pennington & Reid Hastie, Reasoning in Explanation-Based Decision Making, 49 Cognition 123, 123-26 (1993) (describing the story-driven, "explanation-based decision making" method that jurors typically use when confronting large bodies of evidence);
186. id. at 127 ("The story that is accepted is the one that provides the greatest coverage of the evidence and is the most coherent, as determined by the particular juror.");
187. cf. Kevin Jon Heller, The Cognitive Psychology of Circumstantial Evidence, 105 Mich. L. Rev. 241, 245-46 (2006) (positing that "jurors decide whether to acquit not through mechanical probability calculations, but on the basis of their ability to imagine a scenario in which the defendant is factually innocent").
188. See Pennington & Hastie, supra note 95, at 126 (stating that, when building their stories, jurors draw from three sources-the evidence presented during the trial, their prior experiences in comparable situations, and their general "expectations about what makes a complete story").
189. See O'Malley, Civil, supra note 83, § 101.40, at 49 (proposing similar instructions in civil cases);
190. O'Malley, Criminal, supra note 83, § 12.02, at 130 ("[G]ive the evidence a reasonable and fair construction in the light of your common knowledge of the natural tendencies and inclinations of human beings.");
191. id. § 12.03, at 132 ("You are permitted to draw from the facts which you find have been proved such reasonable inferences as you feel are justified in the light of your experience and common sense.");
192. see also Edward J. Imwinkelried, An Evidentiary Paradox: Defending the Character Evidence Prohibition by Upholding a Non-character Theory of Logical Relevance, the Doctrine of Chances, 40 U. Rich. L. Rev. 419, 438 & n.116 (2006) (citing numerous cases endorsing jurors' reliance upon everyday experiences and their common sense);
193. Kay L. Levine, Negotiating the Boundaries of Crime and Culture: A Sociolegal Perspective on Cultural Defense Strategies, 29 Law & Soc. Inquiry 39, 47 (2003) (stating that "[t]he legal doctrine of circumstantial evidence . . . allows a jury to draw reasonable inferences from the evidence, inferences that stem from common sense and everyday experiences").
194. See infra notes 105-18 and accompanying text (discussing this hypothetical in greater detail).
195. Compare Mullen v. Princess Anne Volunteer Fire Co., 853 F.2d 1130, 1132-35 (4th Cir. 1988) (holding that the trial court erred when it excluded evidence of an employer's use of racial slurs, in a case involving a claim of racial discrimination in hiring),
196. Caudill v. Commonwealth, 120 S.W.3d 635, 663 (Ky. 2003) (holding that the trial court did not err when it admitted evidence of the defendant's use of a racial slur, in a case involving charges that the defendant killed an African-American woman),
197. cert, denied, 542 U.S. 922 (2004),
198. and De La Beckwith v. State, 707 So. 2d 547, 578-80 (Miss. 1997) (holding that the trial court did not err when it admitted evidence of the defendant's use of racial slurs, in a case involving charges that the defendant killed an African-American civil rights leader),
199. cert. denied, 525 U.S. 880 (1998),
200. with MCI Express, Inc. v. Ford Motor Co., 832 So. 2d 795, 800-01 (Fla. Dist. Ct. App. 2002) (holding that the trial court erred when it admitted evidence that an automobile lessee's chief executive officer used a racial slur when referring to the poor driving abilities of his own employees, in a case involving the lessor's defense that the lessee's employees had caused the disputed defects in the cars),
201. and Tate v. State, 784 So. 2d 208, 213-15 (Miss. 2001) (holding that the trial court erred when it admitted evidence that the defendant used a racial slur when pulled over by an African-American police officer, in a case involving charges that the defendant assaulted an African-American man who had trespassed onto his property).
202. See supra note 49 and accompanying text (recounting this anecdote).
203. See supra notes 51-58 and accompanying text (describing Damasio's theory of somatic markers).
204. See supra note 74 and accompanying text (discussing cognitive dissonance).
205. Jurors also will experience cognitive dissonance if there are conflicts between what they believe the applicable substantive law demands and what they believe broader principles of justice require. This dissonance might prompt the juror to exercise her power of nullification and vote in the defendant's favor, even though she believes that the plaintiff or the prosecution has carried its burden of proof. See generally Todd E. Pettys, Evidentiary Relevance, Morally Reasonable Verdicts, and Jury Nullification, 86 Iowa L. Rev. 467, 497-505 (2001) (providing an overview of jurors' power of nullification). Here, the juror may have constructed a subnarrative in which the plaintiff or prosecution has satisfied its burden of proof, but that subnarrative is placed within a larger narrative in which the juror believes that the substantive law is imposing unwarranted demands and that it is appropriate for the juror to prevent what she regards as an injustice.
206. The juror will not necessarily vote against the burden-bearing party, however. A juror might vote in favor of the burden-bearing party for reasons having nothing to do with the persuasiveness of the evidence presented at trial. The juror might believe, for example, that the burden-bearing party's opponent is generally a bad person who deserves to suffer.
207. See supra notes 98-99 and accompanying text (introducing this hypothetical).
208. See supra notes 32-35, 43-48 and accompanying text (discussing appraisals).
209. See supra notes 32-39 and accompanying text (discussing appraisals and physiology).
210. See supra notes 59-73 and accompanying text (discussing salience).
211. Cf Harry Kalven, Jr. & Hans Zeisel, The American Jury 498 (1966) (positing that "the group nature of the jury decision will moderate and brake eccentric views");
212. Paul D. Carrington, The Seventh Amendment: Some Bicentennial Reflections, 1990 U. Chi. Legal F. 33, 54 ("There is . . . an empirical basis for the beliefs that larger groups such as full juries . . . provide more competition among views and thus more stimulation and better testing of ideas and reactions . . . .").
213. With respect to criminal trials, see Apodaca v. Oregon, 406 U.S. 404, 411-12 (1972) (plurality opinion) (holding that the Sixth Amendment does not require a unanimous verdict in state criminal jury trials);
214. Johnson v. Louisiana, 406 U.S. 356, 369-71 (1972) (Powell, J., concurring) (providing the swing vote and concluding that the Sixth Amendment requires unanimity in federal criminal jury trials);
215. Williams v. Florida, 399 U.S. 78, 86 (1970) (holding that the Sixth Amendment does not guarantee a twelve-person jury in criminal trials and that Florida did not violate the Sixth Amendment when it seated a six-person jury in a criminal case);
216. and Kenneth Katkin, "Incorporation " of the Criminal Procedure Amendments: The View from the States, 84 Neb. L. Rev. 397, 454 (2005) ("Today, only four states permit nonunanimous verdicts in criminal cases.").
217. With respect to civil trials, see Colgrove v. Battin, 413 U.S. 149, 152-60 (1973) (holding that the Seventh Amendment does not guarantee a twelve-person jury in civil cases, and that the District of Montana did not violate the Seventh Amendment when it seated a six-person jury in a civil case);
218. Am. Publ'g Co. v. Fisher, 166 U.S. 464, 467-68 (1897) (holding that the Seventh Amendment requires unanimity in federal civil jury trials);
219. and Charles Alan Wright & Mary Kay Kane, Law of Federal Courts 675 n.5 (6th ed. 2002) (predicting that, if the issue were to arise today, the Court would reverse American Publishing and hold that the Seventh Amendment does not require unanimity in civil jury trials).
220. See supra notes 66-67 and accompanying text (discussing the experience of an emotion as itself evidence of the accuracy of the appraisal on which the emotion is based).
221. See supra notes 68-73 and accompanying text (discussing the selective search for evidence that supports an appraisal).
222. See supra notes 70-73 and accompanying text (discussing this mutually reinforcing relationship).
223. Cf. John Lawrence Hill, Exploitation, 79 Cornell L. Rev. 631, 676 (1994) ("[T]he desire to believe in something may affect one's evaluation of the evidence for its truth.");
224. Sherman, supra note 4, at 12 ("Aspects of reality may be disregarded or under- or overvalued, and attention focused on slender probabilities. There may be a selective gaze which long outlasts its 'objective' warrant . . . .").
225. Pillsbury, supra note 20, at 703;
226. accord Leslie Paul Thiele, The Heart of Judgment 197 (2006) ("[B]eing under the influence of a particular mood or emotion is not in itself an impediment to good judgment. Being unaware of our moods and emotions, their causes and effects, is the real problem.").
227. See supra note 7 and accompanying text (noting Rule 403's authorization of the exclusion of relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice");
228. cf. Welch, supra note 5, at 78 ("Inappropriate uses of affective argumentation [in public-policy debates] would be those that . . . provoke action without the mediation of choice and judgment.").
229. See, e.g., Nussbaum, supra note 19, at 62 ("[The rationality of emotions can] be assessed by inspecting the relevant beliefs or judgments. These may be either true or false, either appropriate or inappropriate to their object, and they may be either rational or irrational.");
230. see also Allen, supra note 4, at 330 (stating that emotions' rationality can be judged based upon "the rationality of the assessment of the situation");
231. id. at 327 (pointing out that it is rational to be afraid of a fierce dog);
232. id. at 326 n.13 (stating that phobias and obsessions give rise to irrational emotions);
233. Greenspan, supra note 21, at 210 (pointing out that we commonly distinguish "between reasonable and unreasonable emotional reactions, appropriate and inappropriate in what seems to be roughly a rational sense, having to do with some notion of fit to the circumstances that constitute grounds or evidence for emotion");
234. Jones, supra note 61, at 341 ("An emotion E in situation S is rational for agent A if and only if E enables A to form a rational framing of S."). Others characterize the rationality of emotions in narrower terms.
235. See, e.g., McCullagh, supra note 29, at 53 ("Particular emotions are only rational if they have been rationally cultivated.").
236. Cf. Franklin Strier, Reconstructing Justice: An Agenda for Trial Reform 122-23 (1994) (suggesting that, rather than exclude potentially prejudicial evidence, trial judges sometimes should admit the evidence and explain to jurors why the evidence should be handled with special care).
237. For a brief review of the seemingly sparse literature concerning the possible effectiveness of jury instructions on how to handle emotionally powerful evidence, see Feigenson & Park, supra note 42, at 156 (noting that recent studies have shown mixed results with respect to legal decision makers' likely ability to "follow instructions not to be improperly influenced by their emotions").
238. Old Chief v. United States, 519 U.S. 172, 187 (1997).
239. See, e.g., Thomas L. Hafemeister & W. Larry Ventis, Juror Stress: What Burden Have We Placed on Our Juries?, 56 Tex. B.J. 586, 586-90 (1993) (discussing anecdotal evidence of juror stress and resulting difficulties);
240. Stanley M. Kaplan & Carolyn Winget, The Occupational Hazards of Jury Duty, 20 Bull. Am. Acad. Psychiatry L. 325, 325-32 (1992) (reporting the results of a study of jurors from four criminal trials);
241. James E. Kelley, Addressing Juror Stress: A Trial Judge's Perspective, 43 Drake L. Rev. 97, 115 (1994) (stating, on the basis of questionnaires sent to former jurors in criminal cases, that "jurors in serious criminal cases suffer stress symptoms as a result of jury service");
242. Monica K. Miller & Brian H. Bornstein, Juror Stress: Causes and Interventions, 30 T. Marshall L. Rev. 237, 241 (2004) ("To some extent, the symptoms that jurors experience are similar to the stress experienced by actual crime victims and are often the same symptoms used to diagnose mood or anxiety disorders, though the severity of symptoms generally falls short of a diagnostic threshold.").
243. Old Chief, 519 U.S. at 187.
244. See supra note 76 and accompanying text (discussing the need to express emotions).
245. For a recent discussion of the ways in which viewing gruesome photographs might influence jurors' decisions, see David A. Bright & Jane Goodman-Delahunty, Gruesome Evidence and Emotion: Anger, Blame, and Jury Decision-Making, 30 Law & Hum. Behav. 183 (2006). David Bright and Jane Goodman-Delahunty conclude that viewing gruesome photographs in mock criminal trials increases the conviction rate, but that viewing neutral photographs exerts a comparable effect.
246. See id. at 197-200.
247. They attempt to explain the former by stating that feelings of anger cause mock jurors to want to blame the defendant, see id. at 198-99, and they attempt to explain the latter by hypothesizing that photographic evidence "may be more easily encoded and subsequently recalled at judgment,"
248. id. at 197.
249. See supra notes 77-79 and accompanying text (discussing the use of emotions as commitment devices).
250. See supra notes 68-69 and accompanying text (discussing commitments to appraisals).
251. See supra notes 115-18 and accompanying text (discussing Rule 403's availability when a judge believes jurors will not fairly scrutinize the appraisals on which their emotions are based).
252. See supra note 74 and accompanying text (discussing cognitive dissonance and its related negative emotions).
253. Cf. Kalven & Zeisel, supra note 109, at 498 (positing that one reason jurors usually render verdicts with which presiding judges agree is that the jury "has been invested with a public task, brought under the influence of a judge, and put to work in solemn surroundings").
254. Cf. Anthony T. Kronman, Paternalism and the Law of Contracts, 92 Yale L.J. 763, 795-97 (1983) (acknowledging that the law of contracts might justifiably provide a "cooling off" period - a brief period immediately following a contract's formation during which one or both parties may terminate the agreement-if there is a likelihood that one of the parties was "influenced by strong and potentially distorting passions" at the time he or she entered the agreement).
255. See supra notes 2-13, 20-25 and accompanying text (discussing the reason-emotion dichotomy and other disciplines' rejection of it).
256. See supra note 62 and accompanying text (discussing impulsive decisions).
257. See supra notes 66-69 and accompanying text (discussing commitments and appraisals).
258. See supra notes 70-73 and accompanying text (discussing the potential for a mutually reinforcing relationship between emotions and beliefs).
259. See supra notes 115-18 and accompanying text (noting the potential usefulness of such encouragement).
260. See supra notes 81-92 and accompanying text (discussing emotions' role in making demeanor-based assessments of credibility).
261. See supra notes 93-118 and accompanying text (discussing emotions' role in constructing coherent and comprehensive narratives).
262. See supra notes 119-29 and accompanying text (discussing emotions' role in emboldening jurors).