By Dr. Ken Broda-Bahm:
Opening statements began this week in the trial of James Holmes, the acknowledged gunman in the 2012 shooting during a midnight screening of The Dark Knight Rises in Aurora, Colorado. The tragedy sent ripples throughout the nation, and on the heels of a jury selection that was unprecedented in its scope, District Attorney George Brauchler stepped to the lectern on Monday to open the case against Holmes. As I watched via live streaming video, I felt that he was doing a masterful job of telling the story in an organized and factual way, while using — but not overusing — the inherent emotionality of the story. With twelve dead and an additional 70 wounded in the attack, there was a great deal of emotion for Brauchler to draw from. And with the nation watching and the courtroom packed with victims, much of that needed to be covered in his opening statement.
Telling the victims’ stories all at once would have had a numbing effect. So Brauchler made the interesting strategic choice to alternate back and forth between a narrative of the events leading up to the shooting on the one hand — Holmes’ romantic and educational disappointments and his intense planning and preparation — and brief portraits of some of Holmes’ victims on the other hand. At regular intervals in the story, the victims would appear as brief vignettes: just a few human details on one or two of the individuals. He would just give a few sentences on who they were and what brought them to the theater that night, and then, without revealing their fate, he would return to the story of Holmes’ planning. As quickly as Brauchler would present these concise emotional portraits of the victims, he would just as quickly veer away, never risking too much emotionality at any one moment. It had the effect of covering two trains moving towards each other on the same track: We know a collision is coming. Another example of Brauchler’s restraint had to do with the gruesome post-shooting photographs. He didn’t use them. He would let jurors know that they existed for some of the victims, and then add, “But that is a photo you should only have to look at once,” and save it for the case in chief. The principle at work is one that applies to all cases with an emotional component: Be measured in your use. Emotions can help, but they help the most when you’re able to keep a light touch on the gas pedal.
The Enemy of Pathos: Desensitization
I have written about ethos, pathos, and logos, the three forms of influence (or ‘artistic proof’) popularized by Aristotle. Of the three, pathos, or the appeal to the emotions, is the one least welcome in a legal context. Appeals to logic (logos) or to source credibility (ethos) will always seem more relevant. But no one fully puts emotions in the corner, not even in court. It is a simple fact of human motivation that we are going to be moved, either consciously or subconsciously, by the emotional component of an argument. But in modern courts at least, a “less is more” rule is definitely worth following.
Imagine if, as a persuader, you had a button that you could push in order to reliably get a positive response from your audience. All things being equal, you would push that button as often as possible. But now, imagine you have the same button, only its effectiveness decreases with each push. Now, you are going to be sparing with that button and you are going to choose your moments. You are going to save it for those times when it can have the greatest effect. When drawing on the emotions of a case, legal persuaders should act like they have the second button, not the first. Desensitization — a lessening of impact over time — is a well-known psychological effect, and what is shocking at first becomes merely disturbing before moving toward common or neutral.
And there is another reason for being light on the button: Each push risks sending a message about what we think of the audience. If we seem to be treating a jury as a group who would be moved by sympathy, then that “second persona” could prompt a backlash as jurors bend over backwards to prove that they can follow the instructions and they can set aside emotions. Wanting to avoid that reaction, we would want to be even more judicious in our use of emotional appeals.
Measuring Your Emotional Appeals
The Aurora theater shooting case is obviously emotional. In addition to the victims, there are also the potential death sentence and the defense of insanity, which carry their own emotional connotations. While Holmes might be an extreme case, I believe that most cases, perhaps all cases, have their own emotional components. In boring commercial cases, the emotional appeals might be muted, but the triggers — fairness, trust, reciprocity — are all going to have emotional connotations as well. How you use those emotions will vary from case to case, and that’s a good factor to assess in a mock trial. But here are a few general rules of thumb on pulling your emotional punches.
George Brauchler, the prosecutor in the Holmes case, could have begun his opening with a scene of chaos, or a graphic and tragic description of a death. Instead, he began with photo of the movie theatre’s back door, the one Holmes propped open while he retrieved his weapons and armor. Then he simply stated, “Through this door is horror.” Often what the mind fills in is stronger than what our words can describe.
Save It For Later
The end of Brauchler’s opening is well worth watching. It is at that point that he raises the volume, literally and figuratively, in laying out his case. Saving some of the fireworks for later has a great deal of merit. The ‘but wait, there’s more,‘ appeal seems to disrupt the counter-arguments in an audience’s head, making a case that is built up over time more powerful than one that is laid out all at once.
Make Sure It’s Relevant
As effective as Brauchler’s opening was, many have raised the fair point of whether all of the emotional detail is relevant. As we hear from all of the victims over the next few months, one could reasonably ask what that has to do with the only contested fact: whether Holmes, as the admitted shooter, was or wasn’t sane at the time. If you do plan to get into the emotions, spend at least a few moments drawing the connection plainly for the jurors: We need to get into this because…
I have not yet taken the time to fully review the Defense’s opening in the Holmes case, but the introduction raised the possibility that the Defense risks their own desensitization. Defense attorney Daniel King began by reading at length from Holmes’ notebook. While the writing comes across as certainly odd, it is somewhat coherent. For example, statements like “Why does the value of a person even matter if life has no value… any and all actions have no impact on anything….” seem to indicate a person who has talked himself into nihilism, not necessarily insanity. If jurors expect that insane actions are driven by out-of-control impulses, then Holmes’ long and carefully constructed meditations on human life are apt to paint a contrary picture. The more the jury hears from them, the more those writings might seem coherent — twisted and dangerous, but still coherent.
On the other hand, some might justly critique the prosecution’s opening for just how little time it spent on the only question in dispute in the case: Holmes’ sanity. This is particularly surprising given that in Colorado, the prosecution bears the burden for proving sanity. The state’s assumption seems to be that, if something is motivated by life circumstances, and if it is carefully considered and planned in advance, then it cannot be a product of mental illness. Psychiatrists will most likely disagree with that.
It will be interesting to see how this case plays out. But the broader bottom line reminder from the opening is to take care with emotional appeals.
Other Posts on Emotion:
Image Credit: 123rf.com, used under license