This is a post about emotion, so — fair warning — I’m going to begin with an emotional story.
On April 9, 1994, in the middle of the night, 19-year-old Jennifer Collins went into labor. She was in her bedroom in an apartment shared with several roommates. She moved into her bathroom and stayed there until morning. At some point she sat down on the toilet, and at some point, she delivered. Around 9 a.m. she started screaming in pain, waking up her roommates. She asked them for a pair of scissors, which they passed her through a crack in the door. Some minutes later, Collins opened the door and collapsed. The roommates—who had no idea Collins had been pregnant, let alone what happened in that bloody bathroom—called 911. Paramedics came, and after some questioning, Collins told them about the pregnancy. They lifted the toilet lid, expecting to see the tiny remains of a miscarried fetus. Instead they saw a 7-pound baby girl, floating face down.
The State of Tennessee charged Collins with second-degree murder (which means that death was intentional but not premeditated). At trial, the defense claimed that Collins had passed out on the toilet during labor and not realized that the baby had drowned.
The prosecutors wanted to show the jury photos of the victim — bruised and bloody, with part of her umbilical cord still attached — that had been taken at the morgue. With the jury out of the courtroom, the judge heard arguments from both sides about the admissibility of the photos. At issue was number 403 of the Federal Rules of Evidence, which says that evidence may be excluded if it is unfairly prejudicial. Unfair prejudice, the rule states, means “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” In other words, evidence is not supposed to turn up the jury’s emotional thermostat. The rule takes as a given that emotions interfere with rational decision-making.
This neat-and-tidy distinction between reason and emotion comes up all the time. (I even used it on this blog last week, it in my post about juries and stress.) But it’s a false dichotomy. A large body of research in neuroscience and psychology has shown that emotions are not the enemy of reason, but rather are a crucial part of it. This more nuanced understanding of reason and emotion is underscored in a riveting (no, really) legal study that was published earlier this year in the Arizona State Law Journal.
In the paper, legal scholars Susan Bandes and Jessica Salerno acknowledge that certain emotions — such as anger — can lead to prejudiced decisions and a feeling of certainty about them. But that’s not the case for all emotions. Sadness, for example, has been linked to more careful decision-making and less confidence about them. “The current broad-brush attitude toward emotion ought to shift to a more nuanced set of questions designed to determine which emotions, under which circumstances, enhance legal decision-making,” Bandes and Salerno write.
The idea that emotion impedes logic is pervasive and wrong. (Actually, it’s not even wrong.) Consider neuroscientist Antonio Damasio’s famous patient “Elliot,” a businessman who lost part of his brain’s frontal lobe while having surgery to remove a tumor. After the surgery Elliot still had a very high IQ, but he was incapable of making decisions and was totally disengaged with the world. “I never saw a tinge of emotion in my many hours of conversation with him: no sadness, no impatience, no frustration,” Damasio wrote in Descartes’ Error. Elliot’s brain could no longer connect reason and emotion, leaving his marriage and professional life in ruin.
Damasio met Elliot in the 1980s. Since then many brain-imaging studies have revealed neural links between emotion and reason. It’s true, as I wrote about last week, that emotions can bias our thinking. What’s not true is that the best thinking comes from a lack of emotion. “Emotion helps us screen, organize and prioritize the information that bombards us,” Bandes and Salerno write. “It influences what information we find salient, relevant, convincing or memorable.”
So does it really make sense, then, to minimize all emotion in the courtroom? The question doesn’t have easy answers.
Consider those gruesome baby photos from the Collins case. Several years ago psychology researchers in Australia set up a mock trial experiment in which study volunteers were jury members. The fictional case was a man on trial for murdering his wife. Some mock jurors heard gruesome verbal descriptions of the murder, while others saw gruesome photographs. Jurors who heard the gruesome descriptions generally came to the same decision about the man’s guilt as those who heard non-greusome descriptions. Not so for the photos. Jurors who saw gruesome pictures were more likely to feel angry toward the accused, more likely to rate the prosecution’s evidence as strong, and more likely to find the man guilty than were jurors who saw neutral photos or no photos.
In that study, photos were emotionally powerful and seemed to bias the jurors’ decisions in a certain direction. But is that necessarily a bad thing?
In a similar experiment, another research group tried to make some mock jurors feel sadness by telling them about trauma experienced by both the victim and the defendant. The jurors who felt sad were more likely than others to accurately spot inconsistencies in witness testimony, suggesting more careful decision-making.
These are just two studies, poking at just a couple of the many, many open questions regarding “emotional” evidence in court, Bandes and Salerno point out. For example, is a color photo more influential than black and white? What’s the difference between seeing one or two gory photos verses a series of many? What about the framing of the image’s content? And what about videos? Do three-dimensional animations of the crime scene (now somewhat common in trials) lead to bias by allowing jurors to picture themselves as the victim? “The legal system too often approaches these questions armed only with instinct and folk knowledge,” Bandes and Salerno write. What we need is more data.
In the meantime, though, let’s all ditch that vague notion that “emotion” is the enemy of reason. And let’s also remember that the level of emotion needed in a courtroom often depends on the legal question at hand. In death penalty cases, for example, juries often must decide whether a crime was “heinous” enough to warrant punishment by death. Heinous is a somewhat subjective term, and one that arguably could be — must be? — informed by feeling emotions.
Returning to the Collins case, at first the trial judge didn’t think the gruesome baby photos would add much to what the jury had heard in verbal testimony. There was no question that Collins had had a baby, that she knew it, and that the baby had died of drowning. The judge asked the medical examiner whether he thought the photos would add anything to his testimony. He replied that the only extra thing the pictures would depict was what the baby looked like, including her size. The judge decided that was an important addition: “I don’t have any concept what seven pounds and six ounces is as opposed to eight pounds and three ounces, I can’t picture that in my mind,” he said, “but when I look at these photographs and I see this is a seven pound, six ounce baby, I can tell more what a seven pound, six ounce baby … is.”
So the jury saw two of the autopsy photos, and ultimately found Collins guilty of murder. Several years later, however, an appeals court reversed her conviction because of the prejudicial autopsy photos.
“Murder is an absolutely reprehensible crime,” reads the opinion of the appeals court. “Yet our criminal justice system is designed to establish a forum for unimpaired reason, not emotional reaction. Evidence which only appeals to sympathies, conveys a sense of horror, or engenders an instinct to punish should be excluded.”