Fordham Law Review Volume 76 Issue 3 Article 12 2007 The Emotional Juror. Todd E. Pettys Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Todd E. Pettys, The Emotional Juror., 76 Fordham L. Rev. 1609 (2007). Available at: https://ir.lawnet.fordham.edu/flr/vol76/iss3/12 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. The Emotional Juror. Cover Page Footnote Professor of Law and Bouma Fellow in Trial Law, University of Iowa College of Law. This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol76/iss3/12 THE EMOTIONAL JUROR Todd E. Pettys* [Tihings do not seem the same to those who are friendly and those who are hostile, nor ... to the angry and the calm ... INTRODUCTION More than two thousand years ago, Aristotle observed that the most persuasive arguments are often those that appeal, at least in part, to the audience's emotions.2 In the eyes of Aristotle, his teacher Plato, and countless numbers of their successors, however, emotions' persuasive power was hardly cause for celebration.3 The Western philosophical tradition long insisted that emotions and reason were antithetical to one another: the more one could free oneself from emotional influences, the more rational one would be.4 In other words, although an advocate might take advantage of other people's susceptibility to emotional appeals, those wishing to make the most reasonable decisions were strongly advised to try to push their emotions far to the side. The belief that emotions undercut rational decision making is widely shared today,5 particularly within the American legal community. 6 Rule * Professor of Law and Bouma Fellow in Trial Law, University of Iowa College of Law. 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 .... ); id. at 249 (advising speakers who wish to be persuasive to "lead the hearer into emotional reactions"). 3. 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."). 4. 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"); 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"); 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); 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"). 5. 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."); Nico H. Frijda et al., The Influence of Emotions on Beliefs, in Emotions 1609 1610 FORDHAM LAW REVIEW [Vol. 76 403 of the Federal Rules of Evidence, for example, authorizes a trial court to exclude relevant evidence if its "probative value is substantially outweighed by the danger of unfair prejudice," 7 and the rule's advisory committee note explains that unfairly prejudicial evidence is evidence that has "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." 8 Two of the country's leading evidence scholars advise their readers that "[i]ntuition and emotion in the trier of fact are matters to be controlled and minimized." 9 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."); Nancy Sherman, Is the Ghost of Aristotle Haunting Freud'sHouse?, 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 ...");D. Don Welch, Ruling with the Heart: Emotion-BasedPublic Policy, 6 S. Cal. Interdisc. 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."). 6. 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."); 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"); 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."); 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. 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). 7. Fed. R. Evid. 403. 8. 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)); 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."); 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 ....); 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'). 9. Christopher B. Mueller & Laird C. Kirkpatrick, Evidence Under the Rules: Text, Cases, and Problems 61 (4th ed. 2000). 2007] THE EMOTIONAL JUROR 1611 Some authors similarly insist that closing arguments aimed at stirring the jury's emotions are "out of bounds."10 A leading specialist in criminal procedure argues that prosecutors should "forego not only appeals to prejudice, but any deliberate appeal to emotion,"' I while the American Bar Association declares that "[t]he prosecutor should not use arguments calculated to inflame the passions . of the jury." 12 The premises underlying such pronouncements are articulated in a passage arguing for the exclusion of all emotional appeals in debates about public policy: Appeals to emotion are fallacious because emotions are irrelevant as a basis for deciding an issue. While emotions have psychological relevance in that they have a persuasive impact on the human mind, they have no logical relevance because they are incapable of establishing the truth of conclusions. Proving truth requires the mustering of convincing evidence and not simply the exploitation of emotional sensitivities. Emotions may move us to act, but reason should control the course of that action. 13 If emotional appeals are normatively problematic but nevertheless hold great persuasive potential, then trial attorneys face an ethical problem: when selecting the evidence and arguments that they will present to the jury in their effort to prevail on their clients' behalf, to what extent, if any, are they obliged to try to minimize the emotional impact? Of course, even if attorneys were determined to minimize the emotionalism of their presentations, they could not exclude emotions from the courtroom entirely.