Affective forecasting and capital sentencing: reducing the effect of victim impact statements

American Criminal Law Review

Volumn 46, Issue 1, 2009, Pages 107-125

  Blumenthal, Jeremy A ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 67449167494     PISSN: 01640364     EISSN: None     Source Type: Journal    
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References (167)

1. See generally THE PASSIONS OF LAW (Susan A. Bandes ed., 1999);
2. Jeremy A. Blumenthal, A Moody View of the Law: Looking Back and Looking Ahead at Law and the Emotions, 56TH ANNUAL NEBRASKA SYMPOSIUM ON MOTIVATION, EMOTION AND THE LAW: PSYCHOLOGICAL PERSPECTIVES (forthcoming 2009);
3. Jeremy A. Blumenthal, Law and the Emotions: The Problems of Affective Forecasting, 80 IND. L.J. 155 (2005) [hereinafter Blumenthal, Affective Forecasting];
4. Neal R. Feigenson, Sympathy and Legal Judgment: A Psychological Analysis, 65 TENN. L. REV. 1 (1997);
5. Owen D. Jones, Law, Emotions, and Behavioral Biology, 39 JUWMETRICS J. 283 (1999);
6. Peter H. Huang, Reasons Within Passions: Emotions and Intentions in Property Rights Bargaining, 79 OR. L. REV. 435 (2000);
7. Laura E. Little, Negotiating the Tangle of Law and Emotion, 86 CORNELL L. REV. 974 (2001) (reviewing SUSAN A. BANDES, THE PASSIONS OF THE LAW (1999));
8. Terry A. Maroney, Law and Emotion: A Proposed Taxonomy of an Emerging Field, 30 LAW & HUM. BEHAV. 119 (2006).
9. See generally Ward Famsworth, Do Parties to Nuisance Cases Bargain After Judgment? A Glimpse Inside the Cathedral, 66 U. CM. L. REV. 373 (1999);
10. Peter H. Huang & Ho-Mou Wu, Emotional Responses in Litigation, 12 INT'L REV. L. & ECON. 31 (1992).
11. See generally Feigenson, supra note 1;
12. see also Neal R. Feigenson, Emotional Influences on Legal Judgment: How It Happens, Should It Happen, and What To Do About It, 56TH ANNUAL NEBRASKA SYMPOSIUM ON MOTIVATION, EMOTION AND THE LAW: P SYCHOLOGICAL PERSPECTIVES (forthcoming 2009).
13. Kg., Eric A. Posner, Law and the Emotions, 89 GEO. L J. 1977 (2001).
14. E.g., Jeremy A. Blumenthal, Emotional Paternalism, 35 FLA. ST. U. L. REV. 1 (2007).
15. Such a view stems back to ancient philosophy.
16. See John D. Mayer, Foreword to THE WISDOM IN FEELING: PSYCHOLOGICAL PROCESSES IN EMOTIONAL INTELLIGENCE (Lisa Feldman Barrett & Peter Salovey eds., 2002) (discussing Stoic philosophical approach to emotion);
17. Dan M. Kahan & Martha C. Nussbaum, Two Conceptions of Emotion in Criminal Law, 96 COLUM. L. REV. 269, 278-79 (1996) (reviewing sources). In modern times, the perspective appears in both case law and commentary. E.g., Gardner v. Florida, 430 U.S. 349, 358 (1977) ("It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.");
18. see also Jeremy A. Blumenthal, The Admissibility of Victim Impact Statements at Capital Sentencing: Traditional and Non-Traditional Perspectives, 50 DRAKE L. REV. 67, 76 (2001) (noting "long-held belief that emotion interferes with reasoning [such mat] any overly emotional or inflammatory evidence should be excluded from the jury's decision-making process");
19. Steven P. Croley, Vicarious Liability In Tort: On the Sources and Limits of Employee Reasonableness, 69 S. CAL. L. REV. 1705, 1732 (1996) ("Biases, framing effects, and emotions constrain rational decisionmaking.");
20. Feigenson, supra note 1, at 13 (noting law's "general ban" on sympathy and that ordinarily, "the appropriate role for sympathy, and emotion generally, in legal judgment is no role at all");
21. Kimberty A. Moore, Are District Court Judges Equipped To Resolve Patent Cases?, 15 HARV. J.L. & TBCH. 1,3 n.5 (2001) (noting "concerns that jury decision-making in patent cases may be based on bias of emotion rather man rationality or merit" (citation omitted));
22. Tamara R. Piety, "Merchants of Discontent": An Expioration of the Psychology of Advertising, Addiction, and the Implications far Commercial Speech, 25 SEATTLE U. L. REV. 377,401 n.134 (2001) (noting 'long tradition" of viewing emotions as inipediments to reasonable, rational thinking);
23. Note, Disqualification of Judges for Bias in me Federal Courts, 79 HARV. L. REV. 1435, 1446 (1966) (noting assumption that "emotions, desires, and opinions⋯ [may] interfere with the rational process");
24. Peter H. Huang, Emotional Investing and Regulating Anxious or Exuberant Securities Markets 4 (2003) (unpublished manuscript on file wMi author) ("Some researchers argue that certain emotions are examples of visceral factors that short circuit or trump normal logical reasoning."). But see, e.g., Susan A. Bandes, Empathy, Narrative, and Victim Impact Statements, 63 U. CHI. L. REV. 361, 393-94, 399 (1999) (discussing "appropriate" emotions);
25. Douglas A. Berman & Stephanos Bibas, Engaging Capital Emotions, 102 NW. U. L. REV. 355 (2008) (arguing that emotion is "central" to understanding and addressing capital punishment doctrine and practice).
26. Brian Myers & Edith Greene, The Prejudicial Nature of Victim Impact Statements: Implications for Capital Sentencing Policy, 10PSYCHOL. PUB. POL'Y & L. 492, 492 (2004)
27. Booth v. Maryland, 482 U.S. 496, 498 (1987) (quoting MD. ANN. CODE Art. 41 §4-609(c) (1986));
28. see also Myers & Greene, supra note 7, at 492 (stating that such testimony might also identify requests for psychological services initiated by the victim or the victim's survivors, or provide other information related to the impact of the offense on the victim or the victim's family).
29. 482 U.S. 496 (1987).
30. 490 U.S. 805 (1989).
31. Payne v. Tennessee, 501 U.S. 808, 823 (1991). See Blumenthal, supra note 6, for further discussion of the Booth-Gathers-Payne "trilogy."
32. See Booth, 482 U.S. at 508 (noting danger that VIS would "inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant");
33. Bandes, supra note 6, at 365 ("[V]ictim impact statements⋯ should be suppressed because they evoke emotions inappropriate in the context of criminal sentencing.");
34. Vivian Berger, Payne and Suffering: A Personal Reflection and a Victim-Centered Critique, 20 FLA. ST. U. L. REV. 21 (1992);
35. Wayne A. Logan, Through the Past Darkly: A Survey of the Uses and Abuses of Victim Impact Evidence in Capital Trials, 41 ARE. L. REV. 143, 177 (1999). Other criticism argues that VIS is simply irrelevant per se to the determination of a sentence.
36. See Blumenthal, supra note 6, at 73-75 (reviewing relevance criticism).
37. Booth, 482 U.S. at 508-09 ("The admission of these emotionally charged opinions as to what conclusions the jury should draw from the evidence clearly is inconsistent with the reasoned decisionmaking we require in capital cases.");
38. Gardner v. Florida, 430 U.S. 349, 358 (1977) ("It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.");
39. see also Kelly v. California, 129 S. Ct. 564, 567 (2008) (Stevens, J., statement respecting the denial of certiorari) (emphasizing emotional impact on jurors' decision-making);
40. Id. at 568 (Breyer, J., dissenting from denial of certiorari) (emphasizing danger of "purely emotional" features of VIS raising due process concerns).
41. See generally Myers & Greene, supra note 7;
42. * Pearce, Psychology Weighs in on the Debate Surrounding Victim Impact Statements and Capital Sentencing: Are Emotional Jurors Really Irrational?, 19 FED. SENT'G REP. 13 (2006). For a quantitative review of the entire literature, see Amy Wevodau & Jeremy A. Blumenthal, The Impact of Victim Impact Statements: A Meta-Analytic Review (March 2009) (paper presented at the American Psychology/Law Society Conference, San Antonio, TX, on file with author).
43. James Luginbuhl & Michael Burkhead, Victim Impact Evidence in a Capital Trial: Encouraging Votes for Death, 20 AM. J. CRIM. JUST. 1 (1995).
44. Id. at 9.
45. Bryan Myers & Jack Arbuthnot, The Effects of Victim Impact Evidence on the Verdicts and Sentencing Judgments of Mock Jurors, 29 J. OFFENDER REHABILITATION 95, 106 (1999).
46. See Edith Greene, The Many Guises of Victim Impact Evidence and Effects on Jurors' Judgments, 5 PSYCHOL. CRIM. & L. 331 (1999);
47. Edith Greene, Heather Koehring & Melinda Quiat, Victim Impact Evidence in Capital Cases: Does the victim's Character Matter?, 28 J. APPLIED SOC. PSYCHOL. 145 (1998). These studies, however, did not ask respondents to render sentencing judgments.
48. Adalberto Aguirre, Jr., et al., Sentencing Outcomes, Race, and Victim Impact Evidence in California: A Pre- and Post- Payne Comparison, 11 JUST. PROF. 297 (1999).
49. Exceptions exist E.g., Brooke Butler, The Role of Death Qualification in Venirepersons' Susceptibility to Victim Impact Statements, 14 PSYCHOL. CRIME & L. 133 (2008) (finding no effect of VIS);
50. Theodore Eisenberg et al., Victim Characteristics and Victim Impact Evidence in South Carolina Capital Cases, 88 CORNELL L. REV. 306 (2003) (suggesting no effect of VIS);
51. Mila Green McGowan & Brian Myers, Who is the Victim Anyway? The Effects of Bystander Victim Impacts Statements on Mock Juror Sentencing Decisions, 19 VIOLENCE & VICTIMS 357 (2004) (reporting no effect). For a more detailed discussion, demonstrating the overall small but robust effect, see Wevodau & Blumenthal, supra note 14.
52. Cf. Berger, supra note 12;
53. Logan, supra note 12.
54. Jose Felipe Anderson, Will the Punishment Fit the Victims? The Case for Pre-Trial Disclosure, and the Uncharted Future of Victim Impact Information in Capital Jury Sentencing, 28 RUTGERS L J. 367, 430 (1997);
55. see also Logan, supra note 12, at 145;
56. Myers & Greene, supra note 7, at 506.
57. See Blumenthal, supra note 6, at 89-91 (advocating for a focus, in the VIS context, on the evidence itself);
58. Niru Shanker, Getting a Grip on Payne and Restricting the Influence of Victim Impact Statements in Capital Sentencing: The Timothy McVeigh Case and Various State Approaches Compared, 26 HASTINGS CONST. L.Q. 711, 720-26 (1999).
59. Kg., Cargle v. State, 909 P.2d 806, 828 (Okla. Crim. App. 1995).
60. See, e.g., Stephen F. Smith, The Supreme Court and the Politics of Death, 94 VA. L. REV. 283, 298 (2008).
61. See State v. Muhammad, 678 A.2d 164, 180 (N.J. 1996) (holding that certain additional procedural requirements must be followed before victim impact statements can be entered into evidence).
62. See Muhammad, 678 A.2d at 178 (directing Trial Judges Committee to develop instructions regarding use of VIS);
63. Cargle, 909 P.2d at 828-29 (providing an instruction on victim impact evidence for use in capital murder cases);
64. State v. Nesbit, 978 S.W.2d 872, 892 (Tenn. 1998) (elaborating on a suggested instruction to be used in future capital murder cases concerning victim impact evidence);
65. Shanker, supra note 23, at 725 n.89 (identifying other states).
66. Darcy F. Katzin, The Relevance of "Execution Impact" Testimony as Evidence of Capital Defendants' Character, 67 FORDHAM L. REV. 1193, 1194 (1998);
67. Rachel King & Katherine Norgard, What About Our Families? Using the Impact on Death Row Defendants' Family Members as a Mitigating Factor in Death Penalty Sentencing Hearings, 26 FLA. ST. U. L. REV. 1119, 1124 (1999);
68. Wayne A. Logan, When Balance and Fairness Collide: An Argument for Execution Impact Evidence in Capital Trials, 33 U. MICH. J.L. REFORM 1, 5 (1999-2000).
69. Katzin, supra note 28, at 1210.
70. Id. at 1210-11.
71. King & Norgard, supra note 28, at 1160-61.
72. King & Norgard, supra note 28, at 1138-42;
73. Logan, supra note 28, at 5. Note the turnabout of this argument in challenging one of the arguments in Payne. There, the Court justified its ruling in part by stating that where the defendant's character is addressed during the sentencing phase, fundamental fairness dictates that the victim's character be as well.
74. See Payne v. Tennessee, 501 U.S. 808, 826 (1991). The Court cited the Tennessee State Supreme Court and Justice Cardozo approvingly for this point. See id. ("It is an affront to the civilized members of the human race to say that at sentencing in a capital case, a parade of witnesses may praise the background, character and good deeds of Defendant (as was done in this case), without limitation as to relevancy, but nothing may be said mat bears upon the character of, or the harm imposed, upon the victims." (quoting Tennessee v. Payne, 791 S.W.2d 10, 19 (1990)));
75. Id. at 827 ("[j]ustice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament We are to keep the balance true." (quoting Snyder v. Massachusetts, 297 U.S. 97, 122 (1934))).
76. Blumenthal, supra note 6, at 81-83;
77. Myers & Greene, supra note 7, at 510-11. As Myers and Greene point out, it would be helpful to have the same sort of empirical research on execution impact statements as exists on victim impact statements.
78. Id. at 511. No such research exists, however.
79. Blumenthal, supra note 6, at 83-88;
80. Blumenthal, Affective Forecasting, supra note 1, at 191-92. In the initial discussion of potential empirical study, I suggested multiple ways of conveying such information - defense counsel argument, cross-examination of family members giving VIS, judicial instruction, or expert testimony. Blumenthal, Affective Forecasting, supra note 1, at 192. Of these, expert testimony seems the most feasible. See id. (suggesting that "most attorneys (and most readers) [would] cringe at the thought of standing before a capital jury and cross-examining a murder victim's family member with the words, 'You'll get over this, won't you?'").
81. George Loewenstein & David Schkade, Wouldn't It Be Nice? Predicting Future Feelings, in WELL-BEING: THE FOUNDATIONS OF HEDONIC PSYCHOLOGY 85 (Daniel Kahneman et al., eds., 1999);
82. Leaf Van Boven & Joanne Kane, Predicting Feelings Versus Choices, in JUDGMENTS OVER TIME: THE INTERPLAY OF THOUGHTS, FEELINGS, AND BEHAVIORS 67 (Lawrence J. Sanna & Edward C. Chang eds., 2006) (reviewing such research);
83. Blumenthal, Affective Forecasting, supra note1;
84. Chris Guthrie, Better Settle Than Sorry: The Regret Aversion Theory of Litigation Behavior, 1999 U. ILL. L. REV. 43, 85-86 (noting individuals' inability to predict how they will feel in the future);
85. Chris Guthrie & David Sally, The Impact of the Impact Bias on Negotiation, 87 MARQ. L. REV. 817, 818-19 (2004) (recognizing social science literature on affective forecasting);
86. Mark Kelman, Law and Behavioral Science: Conceptual Overviews, 97NW. U. L. REV. 1347 (2003). Kelman explains: Consider also the important point made by behavioral social scientists who investigate hedonics: individuals invariably make concrete choices and establish short-term behavioral plans in expectation that the choices they make will make them happier man the ones they forego, but they may for a variety of reasons know very little about what has made mem happy or will make mem happy. Kelman, supra, at 1356.
87. Blumenthal, Affective Forecasting, supra note 1.
88. For a thorough review of the primary affective forecasting research, see generally Timothy D. Wilson & Daniel T. Gilbert, Affective Forecasting, in 35 ADVANCES IN EXPERIMENTAL SOC. PSYCHOL. 345 (Mark P. Zanna ed., 2003). For a review of the literature as applied to legal issues, see Blumenthal, Affective Forecasting, supra note 1.
89. Wilson & Gilbert, supra note 37, at 353.
90. Blumenthal, Affective Forecasting, supra note 1, at 173-76.
91. See generally id.
92. Id. at 182-88. Recently, a related discussion has suggested, approvingly, that the delay, in civil cases, between injury/filing suit and the initiation of trial allows injury victims to adapt to a new set of circumstances, likely leading to a lower "asking price" for a potential settlement. See generally John Bronsteen et al., Hedonic Adaptation and the Settlement of Civil Lawsuits, 108 COLUM. L. REV. 1516 (2008). For a response to Bronsteen et al., see Rick Swedloff, Accounting for Happiness in Civil Settlements, 108 COLUM. L. REV. SIDEBAR 39 (2008), http://www.columbialawreview.org/assets/sidebar/volume/108/39-Swedloff.pdf.
93. Bryan Myers et al., Victim Impact Testimony and Juror Judgments: The Effects of Harm Information and Witness Demeanor, 32 J. APP SOC. PSYCHOL. 2393 (2002).
94. Id. at 2401.
95. Id. at 2402-03.
96. Janice Nadler & Mary R. Rose, Victim Impact Testimony and the Psychology of Punishment, 88 CORNELL L. REV. 419, 435 (2003).
97. Myers et al., supra note 42, at 2406. Although Nadler and Rose, supra note 47, measured respondents' emotional reactions, they did not analyze whether those emotions in particular affected sentences.
98. Myers et al., supra note 42, at 2406 ("[J]urors can become emotional in the face of victim impact evidence and continue to make judgments based on harm evidence rather than their emotional state.").
99. Id. at 2407.
100. The fact that sentencing decisions take place long after the actual crime, giving survivors time to begin to cope and adapt, may suggest that jurors will more often see survivors as coping well and thus evaluate the amount of harm as lower (thus eliciting fewer death sentences, contrary to usual assumptions).
101. See Blumenthal, Affective Forecasting, supra note 1, at 191. Given existing empirical research, however, this is unlikely; it appears that the act of asking an individual to recall an emotional experience raises its prominence such that the emotion - or, more accurately, the remembered experience of that emotion - is re-experienced. See Id. at 191 n.231. This relates, too, to the claims by Bronsteen et al., supra note 41, regarding the effect of long periods of time between an accident and injury and the trial or settlement regarding it.
102. Note, of course, that these departures from some "appropriate" level are in the minds of the jurors. That is, the question is whether being exposed to VIS alters the jurors' assessment of the amount of harm by means of a comparison between the observed level of grief (pain, suffering, negative emotion) and that which a juror might intuit is appropriate given the circumstances.
103. Blumenthal, Affective Forecasting, supra note 1, at 191-92.
104. E.g., Timothy D. Wilson et al., Focalism: A Source of Durability Bias in Affective Forecasting, 78 J. PERSONALITY & SOC. PSYCHOL. 821, 834 (2000).
105. Blumenthal, Affective Forecasting, supra note 1, at 191.
106. Id. at 191-92. Again, for present purposes I chose expert testimony as the most plausible vehicle for such education.
107. See supra note 34.
108. The data were collected as part of a larger questionnaire study. Only those measures and data relevant to the present research questions are reported here. Additional findings are presented in Jeremy A. Blumenthal, Implicit Theories and Capital Sentencing: An Experimental Study, 59 SYR. L. REV. 1 (2008).
109. See infra notes 85-86.
110. For replication and consistency purposes, the case narrative was borrowed from Butler's work. See generally Brooke M. Butler & Gary Moran, The Role of Death Qualification in Venirepersons' Evaluations of Aggravating and Mitigating Circumstances in Capital Trials, 26 LAW & HUM. BEHAV. 175 (2002);
111. Brooke M. Butler, The Role of Death Qualification in Venirepersons' Evaluations of Aggravating and Mitigating Circumstances in Capital Trials (2000) (unpublished doctoral dissertation, Florida International University) (on file with author). Butler used statutory aggravators and statutory and non-statutory mitigators from Florida, where her research was conducted. Minor wording changes, including names, were made here.
112. The different versions of the questionnaires are available from the author.
113. Data collection for this and each subsequent study was conducted with the approval of the relevant Institutional Review Board, and consistent with the ethical guidelines of the American Psychological Association.
114. See Witherspoon v. Illinois, 391 U.S. 510, 522 n.21 (1968) ("The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings."). As with Butler and Moran's analysis, although the Witherspoon standard has been largely supplanted by Witt, analyses using that standard are reported here for comparison with previous research. Cf. Butler & Moran, supra note 57, at 180 n.3.
115. See Wainwright v. Witt, 469 U.S. 412, 424 (1985) ("[T]he proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment⋯ is whether the juror's views would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" (footnote omitted)).
116. Butler & Moran, supra note 57, at 179-80.
117. The narrative is available from the author. In Butler's research, the scenario elicited approximately even numbers of death sentences; 40% voting for death and 60% voting for life in prison without the possibility of parole.
118. Id. at 180.
119. 2 = 8.63, p =.003, Φ =.127.
120. Id. One participant did not respond to the Witt question. Here and infra, where differences do not approach traditional statistical significance levels (i.e., p <.05), I typically do not report the significance levels. All statistics, however, are available from the author.
121. Previous research has found men more likely to be excluded under Witherspoon. E.g., Robert Fitzgerald & Phoebe C. Ellsworth, Due Process vs. Crime Control: Death Qualification and Jury Attitudes; 8 LAW & HUM. BEHAV. 31 (1984).
122. For political orientation, M = 4.91 vs. 4.09, t(87) = 2.11, p =.038, r =.221. For innocent vs. guilty, M = 3.69 vs. 3.14, t(87) = 2.22, p =.029, r =.232.
123. Butler & Moran, supra note 57, at 180.
124. 2= 3.70, p =.054, Φ =.227. This sex difference is consistent with past research. E.g., Phoebe C. Ellsworth & Samuel R. Gross, Hardening of the Attitudes: Americans' Views on the Death Penalty, 50 J. SOC. ISSUES 19, 21 (1994) (noting consistent preference for death penalty among men relative to women).
125. 2 = 2.45, p =.118, Φ =.191.
126. 2 = 5.89, p =.015, Φ=.259;
127. 2= 13.41, p <.001, Φ =.388.
128. ROBERT ROSENTHAL & RALPH L. ROSNOW, CONTRAST ANALYSIS: FOCUSED COMPARISONS IN THE ANALYSIS OF VARIANCE (1985);
129. R. Michael Furr & Robert Rosenthal, Evaluating Theories Efficiently: The Nuts and Bolts of Contrast Analysis, in 2 UNDERSTANDING STATISTICS 45 (2003).
130. Specifically, the contrast was statistically significant for the full sample, Z = 1.68, p <.05, r =.178;
131. for those death-qualified under Witherspoon, Z = 1.45, p <.08, r =.171;
132. and for those death-qualified under Witt, Z = 1.55, p =. 06, r= 189.
133. See sources cited supra notes 15-21.
134. See supra Part I.A-B.
135. See sources cited supra note 13.
136. See supra note 49.
137. King & Norgard, supra note 28, at 1160-61.
138. Brian H. Bomstein, The Impact of Different Types of Expert Scientific Testimony on Mock Jurors'Liability Verdicts, 10 PSYCHOL. CRIME & L. 429 (2004).
139. Judy A. Le Page et al., The Impact of Judges' Perceptions of Credibility in Fibromyalgia Claims, 31 INT'L J.L. & PSYCHIATRY 30 (2008).
140. Joel Cooper & Isaac M. Neuhaus, The "Hired Gun" Effect: Assessing the Effect of Pay, Frequency of Testifying, and Credentials on the Perception of Expert Testimony, 24 LAW & HUM. BEHAV. 149 (2000).
141. E.g., Irwin A. Horowitz et al., The Effects of Complexity on Jurors' Verdicts and Construction of Evidence, 86 J. APPLIED PSYCHOL. 641 (2001);
142. cf. Steven D. Hurwitz et al., Source Credibility and the Language of Expert Testimony, 22 J. APPLIED SOC. PSYCHOL. 1909 (1992) (noting impact of language in actual cases on perceptions of experts' credibility).
143. I thank Bobbie Spellman for suggesting this avenue of investigation.
144. Planned contrasts testing a quadratic pattern yielded the following results: In Study 2(a) (undergraduate sample), Z= -1.47, p =.07, r = -.126 (full sample); Z= -1.30, p < 10, r= -.119 (Witherspoon-qualified); Z = -1.53, p =.06, r = -.142 (Witt-qualified). In Study 2(b) (law student sample), Z = -.202, p =.42, r = -.024 (full sample); Z =.106, p =.46, r =.013 (Witherspoon-qualified); Z = -.401, p =.34, r = -.049 (Witt-qualified). In Study 2(c) (community sample), Z =.401, p =.34, r =.051 (full sample); Z =.345, p =.37, r =.052 (Witherspoon - qualified); Z = -.132, p =.45, r = -.019 (Witt-qualified).
145. In Study 2(a), the correlation was r (45) =.348, p =.019;
146. in Study 2(b), r(23) =.108, p =.624;
147. in Study 2(c), r (24) =.426, p =.038.
148. 2 = 4.55, p =.033, Φ =.366;
149. 2 = 2.57, p =.109, Φ =.378;
150. 2 = 3,16, p =.076, Φ=.397.
151. See sources cited supra notes 79-82.
152. See sources cited supra notes 80-81.
153. See Horowitz et al., supra note 82.
154. In a sense, then, this may be an encouraging finding, to the extent there was something about the substance of the expert's testimony that affected decision-making, rather than peripheral cues.
155. For instance, an expert's sex may affect credibility perceptions, though this may depend on the complexity of the evidence and the subject of the case. See, e.g., Blake M. McKimmie et al., Jurors' Responses to Expert Witness Testimony: The Effects of Gender Stereotypes, 7 GROUP PROCESSES & INTBRGROUP RELATIONS 131 (2004);
156. Regina A. Schuller et al., The Impact of Expert Testimony on Jurors' Decisions: Gender of the Expert and Testimony Complexity, 35 J. APPLIED SOC. PSYCHOL. 1266 (2005);
157. Regina A. Schuller et al., The Impact of an Expert's Gender on Jurors' Decisions, 25 LAW & PSYCHOL. REV. 59 (2001). An expert's race may also have an effect. See, e.g., Amina Memon & Daniel Shuman, Juror Perception of Experts in Civil Disputes: The Role of Race and Gender, 22 LAW & PSYCHOL. REV. 179 (1998).
158. See Myers et al., supra note 42;
159. Nadler & Rose, supra note 42.
160. Kelly v. California, 129 S. Ct. 564, 567 (2008) (Stevens, J., statement respecting the denial of certiorari) (emphasizing emotional impact on jurors' decision-making);
161. Id. at 568 (Breyer, J., dissenting from denial of certiorari) (emphasizing danger of "purely emotionar features of VIS raising due process concerns).
162. Allan Raitz et al., Determining Damages: The Influence of Expert Testimony on Jurors' Decision Making, 14 LAW & HUM. BEHAV. 385, 394 (1990).
163. See supra note 41. A pilot study mirroring the capital sentencing studies, but using a civil damages context, yielded no meaningful significant results.
164. See Jeremy A. Blumenthal, Affective Forecasting and Jury Decision-Making (Mar. 2005) (paper presented at American Psychology/Law Society Conference, La Jolla, CA, on file with author).
165. See Myers & Greene, supra note 7;
166. Wevodau & Blumenthal, supra note 14.
167. See Wevodau & Blumenthal, supra note 14.