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.