• Expect Filtered Emotions in Deliberations: A Capital Case Study
  • March 3, 2015 | Author: Kenneth T. Broda-Bahm
  • Law Firm: Holland & Hart LLP - Denver Office
  • Everyone who has ever served on a jury or watched a mock jury deliberate knows that emotions play a role. What you might not know, however, is that emotions also carry a bias. They're filtered and used selectively, owing to the fact that, in a particular legal context, some emotional responses are validated and some are discouraged. In the ongoing Boston Marathon bombing trial, for example, don't expect much in the way of sympathy for Dzhokar Tsarnaev. He's admittedly photogenic, but particularly once the panel has been vetted and "death qualified," the resulting jury is unlikely to be in the mood to apply emotional value to the young man, to give weight to his motivations or circumstances, or to believe the he was under the sway of a radicalized older brother. Instead, the jury's emotional consideration will likely be reserved for the victims. It is in our nature to infuse emotions into our evaluations, but in a legal context, some emotions are filtered out while other emotions are magnified.

    Of course, some would say that this is exactly how it should be in the Tsarnaev case and others: Sympathy should be limited to those who deserve it. But the broader point is what I hope to emphasize in this post. The common perception of jurors sometimes simplifies the role of emotions: Of course they're emotional, they're only human. That broad perception misses the point that emotions will be filtered to the point that some emotions matter much more than others. A recent study explored this kind of selective relevance for emotions in deliberations. The article is published in Law and Social Inquiry (Lynch & Haney, 2014), is freely available online, and is also summarized in an article on AL.com. Focusing on a large number of video-recorded mock juries deliberating in a death penalty sentencing-phase trial, the researchers found that "Jurors strategically and explicitly employ emotion in the course of deliberation." More specifically, they showed that the filtering of emotional appeals creates a bias when jurors are choosing between life and death. "Pro-life jurors, in particular," they write, "appeared to have more difficulty expressing and using emotions than their pro-death counterparts."

    The Research

    University of California-Santa Cruz psychology professor Craig Haney and University of California-Irvine criminology professor Mona Lynch recruited 539 nonstudent research participants and randomly assigned each to one of 90 deliberation groups composed of 4 to 7 participants each. The mock jurors were shown a video of a summarized and simulated trial based on a real California murder/robbery case, asked their individual verdict, and then given 90 minutes to deliberate to a verdict of death or life without parole. The researchers also varied the race (white or black) of both the defendant and the victim. The deliberations were recorded and then content analyzed. The article quotes liberally from the deliberations, and makes for an interesting read for that reason alone.

    Their finding is that emotion played an important role. As they illustrate in a number of examples, it is used strategically by both sides, but it has a punitive bias. Of the 134 jurors who switched sides in deliberations, 3 out of 4 switched from a pro-life to a pro-death decision. The reason for that is the emotional themes that argue for greater punitiveness (e.g., victim impact) are validated, while those that argue for lesser punitiveness (e.g., mitigating factors like the defendant's upbringing and prior abuse) are viewed as inappropriate appeals for sympathy and are therefore dismissed.

    In other findings. they also found that black defendants were more likely to be sentenced to death, and that deliberation tended to intensify this effect rather than mitigate it. White men were also found to dominate deliberations, often asserting emotional authority in order to sway other jurors toward death, particularly when it involved a black defendant.

    Some Implications


    The racial effect deserves a post in its own right, but for this post, I want to focus on the role of emotional appeals. That point has implications that extend beyond capital cases. Anytime a case brings emotions to mind, those emotions might or might not explicitly find their way into deliberations. The question of whether, which ones, and how the emotions come in is an important one in most cases. Here are a couple of rules of thumb litigators should apply when assessing the emotional impact of their case or in reviewing mock trial deliberations.

    Look Not Only at Which Emotions Will Be Elicited, but Also at Which Emotions Will Be Validated

    Beyond just seeing emotion as an effect of the presentations, treat it as a strategic tool that is used selectively in deliberations. That is, emotions might simply be expressed, or they might be used as a tactic to respond to particular arguments. In particular, mock deliberations observers should watch for regulatory moves regarding emotions: claims by the mock jurors that specific emotional responses are or aren't permitted, and should or shouldn't matter to the outcome.

    As the authors found, "Not all emotional reactions had equal standing or legitimacy." In the particular capital case scenario they used, the mock jurors found it valid to express indignation and anger toward the defendant and to identify emotionally with the victim and his family. But they saw it as much less okay to attach emotional evaluation to the defendant himself. The reason for that filter is that jurors tended to see sympathy for the defendant based on childhood abuse as being used as an excuse. Sympathy for the victims, on the other hand, is just part of the impact of the crime that jurors are supposed to consider. As one noted, "All this abuse crap is no excuse," missing the point that mitigation is not offered as an excuse but as part of the balancing test for sentencing. If mitigating facts don't justify the crime, they reasoned, then they are irrelevant. As another noted, "there are other kids who get mistreated who don't go around murdering people." Jurors in favor of life without parole were likely to be criticized by other jurors for being too emotional, whereas those in favor of an "eye for an eye" rarely were. More often, the discussions of mitigation were simply set aside. As one juror said, "Let's kill the sympathy vote for right now." The particular arguments might be unique to a capital sentencing deliberation, but the broader filtering process (some emotions matter, other emotions don't) should be expected in other cases.

    Validate the Emotions You Want

    If the jury room door is only going to admit some emotions and not others, then it helps for trial attorneys to have an awareness of which emotions they want to encourage and discourage. It isn't enough to simply prime jurors with facts or testimony likely to evoke feelings. Instead, the resulting emotions need to feel appropriate in context.

    In the authors' capital case study, for example, the emotional appeals for the victim and his family are validated through the prosecutor's presentation, as well as the instructions to consider the "heinousness" and effects of the crime. For the defense attorney, however, there is an even greater need to validate the role of emotional mitigating testimony. For example, it might help to explicitly emphasize that the purpose of this information is not to arouse sympathy for the defendant, and jurors should actively set aside those feelings. Instead, defense counsel should emphasize that this information should only serve the role of allowing jurors to balance aggravating and mitigating factors as the law requires. That kind of frame could make jurors more comfortable in considering that kind of information, seeing it not as an excuse, but as a legally relevant test of the appropriateness of the penalty.

    The alternative perspective would be to say that no emotions are relevant in a legal setting. The study authors begin by quoting Terry Maroney (2006) who claims, "A core presumption underlying modern legality is that reason and emotion are different beasts entirely: They belong to separate spheres of human existence; the sphere of law admits only of reason; and vigilant policing is required to keep emotion from creeping in where it does not belong." But there are both legal and cognitive problems with that hard-line distinction. The law does allow some consideration of emotion, and human judgment is inevitably bound up with emotional reactions. Perhaps the best compromise is found in a much older idea: Plato's chariot analogy, which posits human reason as the driver of a chariot pulled by two winged horses -- the well-behaved horse being our rational impulse, and the other unruly horse being our irrational passions. The trick for the driver is to get both pulling in the same direction.