By Dr. Ken Broda-Bahm:
“You are not to cry,” the judge sternly warns the witness on the stand, a mother looking at postmortem photographs of her son. It seems like a pretty harsh and heartless instruction from the judge, especially to those less acquainted with the legal system. But this scene that played out last week in the trial of Aaron Hernandez, the former New England Patriots football player, reflects the court’s familiar suspicion over the role of emotions in trial. The murder victim’s mother, Ursala Ward, had already walked out of the courtroom sobbing on a couple of occasions. The Defense had objected to showing the photos, arguing that they were designed solely to elicit an emotional reaction. The judge allowed it, but was determined to not allow it to turn into an emotional display, and that is what set up the odd scene of a grieving mother, unsuccessfully trying to keep her emotions in check as she identified pictures of her dead son.
In a way, that scenario can be viewed as an analogy for the trial court’s relationship to emotional expression in general: It tries to bracket it out in the name of relevance, but that attempt is doomed to failure. The law is based on a Socratic dualism between reason and emotion: There are the cold and concrete facts that we should focus on, and there is the sympathy, the passions, and the drama that we should not focus on. That distinction is easy to build into a jury instruction, but the more we know of the theory, the practice, and the social science, the more quickly that distinction falls apart. As long as we remain perceptive, subjective, and human, emotions cannot be eliminated from our judgment. But that does not mean that they can be given complete free rein on the witness stand either. While I have written about the social science connections between reason and emotion in past posts, in this post, I’d like to draw on a much older perspective – that of the ancient Roman rhetor and lawyer, Quintilian — to provide some practical rules on appropriately controlling, but not eliminating, emotion during testimony.
Emotion and the Courts: Learning from Quintilian
Northeastern University communication professor Richard A. Katula published an analysis of Quintilian’s views on emotion in legal persuasion. The first century scholar and lawyer emphasized six rules that were more fitting for the ancient courts where emotional appeals were expected to play a more obvious and pronounced role, as Katula notes, so “it may persuade when the facts alone do not.” Quintilian for example, in his first rule, emphasizes that the advocate must purposefully express in tone and gesture the emotional state he wishes to arouse in his judges. In today’s courts, that is a recipe for acting, insincerity, and a loss of credibility.
Dr. Katula reports on a survey of American judges on their view of emotions in court, and the short answer: Keep a lid on it. “Ninety five percent of the judges we surveyed reported that they seek to block out, or ‘down-regulate,’ their own emotions during a trial. They expressed a near unanimous belief that their emotions are neither useful nor appropriate guides during a trial.” These beliefs reflect the fact that, as a result of selection, experience, and law-school emphasis, lawyers are prone to being more comfortable with logic than with emotion generally.
At the same time, we know there is no tidy distinction between logic and emotions in practice. In conversation, we naturally tune in and match the emotional tone of our partner, and in advocacy we are motivated by emotion to seek out and attend to the facts and logic that matter most to our objectives.
What’s more, suppressing or constraining emotion, as the Aaron Hernandez judge attempted to do, may be counterproductive. “By driving emotional display underground,” Katula argues, “today’s magistrates may have unwittingly made emotional appeal an even more powerful force than in Quintilian’s time, operating as an enthymeme or suppressed premise.” The nuance of a subtly conveyed or constrained emotion – when sincere and fitting – is apt to be even more effective. As Katula concludes, “Great attorneys understand that they may not see a tear in the judge’s eye, but that one may still have fallen quietly onto his or her heart.”
Six Rules for Emotional Expression During Testimony
Quintilian had his six rules for his time. Here are my six rules for our time:
1. Content is King
Jurors and judges want to assess credibility, they want to evaluate your demeanor, and they want to know how you felt. But they want to feel like they’re an embodiment of Joe Friday’s oft-repeated “Just the facts, Ma’am.” The last thing jurors want is to feel like they are succumbing to emotion and sympathy. So, even as you communicate naturally, keep your focus on the facts that your audience is looking for.
2. Don’t Act
No witness should ever plan, prepare, or premeditate any emotional display, whether that is full-on tears or merely a hangdog expression. Jurors and judges are outstanding B.S. detectors, and even when the underlying emotion is legitimate, the purposeful execution of it will scream insincerity. Instead, be in the moment and think about what you are saying. If the emotions subtly creep in, then let them.
3. Don’t Desensitize
Witness preparation, if it is repeated or if it dwells on the most emotionally involving parts of the testimony, can end up being the enemy of honest emotional expression. The experience of going over and over it can end up deadening the genuine emotions, and that is a mistake. So don’t neglect the necessary practice, but don’t overdo it. As the kids say, “Keep it real.”
4. Don’t Be Flat
At the same time, what is “real” for many people is not all that expressive. Some people have a naturally flat affect. Those who know them well can read their emotions, but jurors exposed to them for just a couple of hours on the stand may not be able to. In that case, the solution is not to solicit an unrealistic affect from the witness — it will never be believable. Instead, the next best thing is to identify the witness’s realistic range and to get as much as will be natural and comfortable.
5. Explain Atypical Reactions
Outside a situation, it is easy for evaluators — jurors and the rest of us — to think there is a “right” way to react emotionally. When a witness, even after preparation, still comes across as flat or just odd, it will help the juror or judge to have an explanation for that reaction. Others who know the witness, for example, can share descriptions or stories that will help jurors put these reactions in context.
6. Keep it Out of the Gallery
Emotional displays can extend beyond the witness box and into the gallery. In some criminal trials, for example, spectators engage in symbolic displays of emotion by wearing shirts or buttons with pictures and statements like “Justice for Jennifer” (Lind, 2008). Where it has come up, courts have frowned on that practice, reasoning that the right to a fair trial trumps free speech given that there are other avenues for speech, but no other avenues for a fair trial. Jurors are likely to frown on it as well, seeing any emotional display from the gallery — whether shirts, sobs, or facial expressions — as improper attempts at influence.
So, bottom line, emotions are tricky in court. That, I guess, puts them on par with emotions everywhere else. So Happy Valentine’s Day.
Other Posts on Emotion:
- Switch Between Analysis and Empathy (Because You Won’t Get Both at the Same Time)
- Treat Fairness as a Reason, Not a Feeling
- A Mixture of Justice and Revenge: Target Juror Psychology in Awarding Damages
Katula, R. A. (2003). Quintilian on the art of emotional appeal. Rhetoric Review, 22(1), 5-15.
Lind, M. E. (2008). Hearts on Their Sleeves: Symbolic Displays of Emotion by Spectators in Criminal Trials. The Journal of Criminal Law and Criminology, 1147-1170.
Image Credit: 123rf.com, used under license.