Newswise — As the Senate confirmation hearings for Supreme Court justice designate Sonia Sotomayor approach, the role of empathy and emotions in the courtroom will become a much-explored issue. President Obama identified empathy as one of the qualities he looked for in a nominee, and Republicans have signaled they will make it an issue during the hearings.
Todd Pettys, a professor of law at the University of Iowa, believes the country's legal system should accept that emotion does, indeed, have a place in the courtroom.
"The legal community needs to move beyond the notion that all emotional influences automatically mean unfair prejudice," Pettys said. "Legal professionals need to understand the ways in which emotions aid rational decision making, while also better understanding the ways in which emotions can undesirably skew jurors' judgments."
Pettys points to recent advances in psychology and neurology that suggest emotion plays a much larger role in formulating our logical thinking than was previously known.
He cites research that demonstrates, for instance, that when we feel a powerful emotion, our brain looks for evidence that supports that emotion while discounting evidence that is in opposition. In this way, our emotional response over time becomes a belief borne of what we think is a logical assessment of the evidence.
Unfortunately, Pettys said the Anglo-American legal system continues to operate in a way that assumes emotion and reason are in direct opposition to one another, instead of intertwined. During a trial, judges often reject evidence that could be seen as creating an emotional response in a juror, and attorneys are ethically bound to refrain from making emotional appeals on behalf of their clients.
But he said the legal system's insistence on keeping a wall between emotion and reason only makes it more difficult for a juror to determine what is the truth. For instance, Pettys points to research showing emotions help jurors sort through the vast amounts of information they receive in a trial, helping them determine what facts are most important and building a plausible narrative of the crime. Emotions help jurors focus their attention on that evidence they do consider most important. Jurors also have emotional "gut feelings" that help them determine the credibility of a witness.
And when it comes time to rendering a verdict, jurors use their emotions to determine what's the right thing, and summon the strength to do it.
"Feeling compelled to express the emotions that jurors experience as a result of viewing gruesome photographs of a murder victim's body, for example can usefully counteract the emotions that jurors feel when they contemplate separating a nice-looking, well-dressed criminal defendant from his family for the rest of this life," Pettys said. "Jurors can use their emotions to boost their resolve to render a verdict that is faithful to the facts established by the evidence, despite the stress that rendering such a verdict might cause."
Pettys urges the legal system to adopt rules that accommodate the place emotions have in our decision making process. For instance, he said judges could issue instructions to jurors to consider their emotional responses and determine the role they play in their thinking during deliberations.
"Despite the fact that a range of emotional phenomena can usefully push jurors in rational, truth-discovering directions, the law has a strong interest in prodding jurors to examine the appraisals on which their emotions are based," Pettys said. "Rather than naievely tell jurors to ignore their emotions, we need to encourage jurors to engage in emotional self-examination and rule out that examination only in those cases when it would be ineffectual."
Pettys wrote about the issue in his paper, The Emotional Juror, published in the Fordham Law Review. The paper is available online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1038641.
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