Emotional Fact-Finding

Abstract

This article advocates several reforms to improve how the rules of evidence and procedure handle emotionally arousing evidence during trial. At present, the law exhibits a dysfunctional approach in its handling of emotions, in which it is pulled simultaneously towards two polar extremes. Classically, the law has viewed emotional influences as generally harmful, while a more recent approach stresses the importance of emotions as a part of the trial process. Here, I seek to develop a synthesis between these extremes using a dual-process model of fact-finding, which draws its support from modern psychological research into the roles of emotion rather than often unfounded judicial and critical intuitions. The dual-process framework recognizes two alternative pathways by which individuals make judgments — fast, intuitive assessments and slow, deliberative appraisals — and explains how these frameworks interact to provide a highly functional system of human decision-making. Using this model, I argue that in many common trial scenarios, emotional arousal attaches to an inappropriate object and thus corrupts the fact-finding process. On the other hand, according to the model, emotion will often aid accurate fact-finding by focusing jurors’ attention on key items of evidence, helping them remember important information, and guiding them towards a normatively and factually appropriate decision. To help analyze when emotions will facilitate jury fact-finding, I develop a taxonomy of emotional influences at trial. Using this taxonomy, I identify reforms to existing rules of evidence and procedure that will prevent or mitigate inappropriate emotional influences on a jury’s reasoning, while encouraging fact-finders to harness their emotions when they are situationally relevant to issues raised and disputed by the parties. In particular, I advocate three reforms: revising Federal Rule of Evidence 403 and its state counterparts to encourage judges to use a broader array of trial management techniques to mitigate emotional prejudice; mandating that newly elected or appointed judges receive instruction about the psychology of emotion before taking the bench; and implementing a procedure by which parties can object to emotionally prejudicial evidence during bench trials, without having to describe such evidence to the fact-finding judge. Such reforms will help judges to facilitate those emotions that help jurors do their jobs, while preventing or mitigating the kind of emotional influences that undermine decisional accuracy.