How EMOTION Affects the Trial Process

By Miller, Monica K.; Greene, Edie et al. | Judicature, September/October 2008 | Go to article overview

How EMOTION Affects the Trial Process


Miller, Monica K., Greene, Edie, Dietrich, Hannah, Chamberlain, Jared, Singer, Julie A., Judicature


Our big eyed, beautiful Tracy is no longer with us. ... Oh God we miss her. I keep on reliving the last minutes of her beautiful life. We could not help her... How much did our Tracy suffer? Our lives are destroyed by the loss... our hearts went with her. .

- Ligia Fein, Mother of Tracy Fein

Tracy Fein was a 22-year-old woman killed in a car accident. Her boyfriend, Trevor Clark, was driving under the influence of controlled substances at the time. Before Clark's sentencing hearing, the Fein family submitted a Victim Impact Statement that included this excerpt and that described other losses they suffered as a result of the accident. The Feins brought to the sentencing hearing the Teddy Bear that now holds Tracy's ashes, locks of baby hair, baby teeth, and pictures of various milestones in her life.

In a trial, victims and surviving family members are allowed to present such evidence to indicate how they suffered, and to urge that the defendant be punished. Such evidence is inherently emotional and exemplifies how emotions can play a part in the trial process. The intent of this article is to alert judges and other court personnel to the role of emotions in criminal and civil trials. Strong emotions can affect both the decision-making processes and the well-being of judges and jurors.

Emotion can be broadly defined as "a state of arousal involving facial and bodily changes, brain activation, cognitive appraisals, subjective feelings, and tendencies toward action."1 Primary emotions are believed to be biologically based, and include happiness, sad- ness, anger, fear, surprise, disgust, and contempt. Other emotions, such as jealousy, are specific to cer- tain cultures, and thus have a strong social basis. Emotions are also physiological phenomena that affect one's mental and physical well-being and influence social functioning.

Emotions may influence one's actions, or conversely, one's actions may bring about particular emotions. Emotions are often publicly expressed and experienced vicariously by others. Additionally, observers interpret others' emotions within a social situation, which may affect the social interaction. As such, stimuli in the environment, whether experienced directly or indirectly, can evoke emotions.

Three trial-related factors that can affect emotions are the focus of this article: 1) during trial, the prosecutor may show emotion-evoking evidence such as gruesome photographs of the crime scene or victims' injuries; 2) during sentencing hearings, victims and their families may give victim impact statements, and in capital cases the defendant's family might give execution impact statements, and 3) a defendant's behavior (e.g., expressing remorse or apologizing) may also evoke emotion in jurors and judges. Although other factors can also arouse emotion in a trial (e.g., being victimized by a courtroom gunman), this article focuses on the much more common sources of emotion and those that can be regulated and addressed by judges.

For each of these emotion-evoking factors, the article will present the relevant legal aspects (e.g., some states allow victim impact statements) and social science findings. Psychologists have tried to clarify the role of emotions in the courtroom and explain how various emotions and attributions (e.g., of responsibility) can affect an individual's per- ception of what should happen to an offender. We contend that legal systems should also pay close attention to emotion and its accompanying effects on jurors, judges, and other court personnel.

Evidence as an emotion-evoking factor

During trial, witnesses might describe being abused, injured, or victimized, and attorneys might show photographs of injured or dead victims and reenactments of crime scenes. In a recent Missouri trial, jurors cried as they heard the recording of a 911 call from a woman who had just discovered that her daughter had been murdered and her daughter's fetus cut from her body. …

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