Emotional Fact-Finding

61 Pages Posted: 13 Jun 2014 Last revised: 20 Dec 2014

See all articles by Mark Spottswood

Mark Spottswood

Florida State University College of Law

Date Written: June 11, 2014


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.

Suggested Citation

Spottswood, Mark, Emotional Fact-Finding (June 11, 2014). 63 Kansas Law Review 41 (2014); FSU College of Law, Public Law Research Paper No. 685. Available at SSRN: https://ssrn.com/abstract=2448735

Mark Spottswood (Contact Author)

Florida State University College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL Florida 32306
United States
8506444248 (Phone)

HOME PAGE: http://www.law.fsu.edu/our-faculty/profiles/spottswood

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