Brooklyn Law Review

Volume 66
Issue 4
The Jury in the Twenty-First Century: An Article 2
Interdisciplinary Conference

6-1-2001

Emotions in Juror's Decisions

Reid Hastie

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Reid Hastie, Emotions in Juror's Decisions, 66 Brook. L. Rev. 991 (2001).
Available at: https://brooklynworks.brooklaw.edu/blr/vol66/iss4/2

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 ARTICLES

EMOTIONS IN JURORS' DECISIONS*

Reid Hastie"

I. THE JUROR'S DECISION-MAKING PROCESS

Most conceptions of the juror's decision assume that

the process is primarily cognitive, even rational in character.
Descriptive psychological theories all focus on cognitive
information processing functions and none of the currently
popular models include an explicit account of the role of
sentiments, moods, emotions, and passions in the process.
Normative theories also assert that legal decisions
should be predominantly rational. For example, the Advisory
Committee's note on Federal Rule of Evidence 403 comments
that one consideration in deciding whether to exclude evidence
should be to avoid "unfair prejudice," defined as "an undue
tendency to suggest decision on an improper basis, commonly,
though not necessarily, an emotional one."'
There is an apparent contradiction between the
conception of the ideal juror as a logical reasoning machine and
also as a source of community attitudes, sentiments, and moral
precepts. Robert Solomon noted this discrepancy when he
commented that "[tihe idea that justice requires emotional
detachment, a kind of purity suited ultimately to angels, ideal

@2001 Reid Hastie. All Rights Reserved.

t Professor of Psychology and Director of the Center for Research on
Judgment and Policy, University of Colorado. Funding for the empirical studies
described in this paper was provided by the National Science Foundation (most
recently from Grant No. SBR 9816458). The author would like to thank Nancy
Pennington, Peter Tillers, Phoebe Ellsworth, and the participants in the Brooklyn Law
School Interdisciplinary Conference on The Jury in the Twenty-First Century for much
useful advice on the subject of this paper. Of course, the contents of the paper should
be attributed only to the author.
FED. R. EVID., 403, Advisory Note.
 BROOKLYN LAWREVIEW [Vol. 66: 4

observers, and the original founders of society, has blinded us

to the fact that justice arises from and requires such feelings as
resentment." This apparent contradiction may be resolved by
distinguishing between the several functions required of the
jury, some of which (for example, fact finding) demand cold
rational assessments, while others (for example, determining
the moral egregiousness of a defendant's conduct) require a
more passionate evaluation. Nonetheless, psychologists know
of no satisfactory normative analysis of the relationship
between cognitive and emotional functions in the decision-
making process.
Theoretical analyses provide extremely cognitive
versions of the jurors' decision-making processes, but any
realistic assessment concludes that jurors experience varied
emotions and that these emotions sometimes influence their
decisions. First person reports of jury service invariably
mention emotional experiences: anxiety or irritation produced
by jury service, reactions of anger, fear, and sympathy evoked
by the events that led to the trial or by participants in those
events or the trial, and sometimes dramatic evidence exhibits
that evoke strong emotions.3 It is also likely that emotions
caused by events outside the trial may be carried into the jury
box and that even these irrelevant events may influence a
juror's decision.
Harry Kalven, Jr. and Hans Zeisel, in their classic
survey study The American Jury, cited sentiment as a major
factor to explain jury-judge disagreements Because jurors and
judges probably have different attitudes about certain laws,
defendants, and victims, these attitudes and the associated
sentiments were believed to explain some of the cases where
judges and juries disagreed on the proper verdict.'

2 ROBERT C. SOLOMON, A PASSION FOR JUSTICE 34 (1990).

3 See generally AMANDA COOLEY ET AL., MADAM FOREMAN: A RUSH TO
JUDGMENT? (1995); Otto Friedrich, We, the Jury, 118 TIME 44 (1981); see also Carole L.
Hinchciff, Portraitof a Juror: Selected Bibliography, 69 MARQ. L. REV. 495 (1986);
Nancy S. Marder, Deliberationsand Disclosures:A Study of Post-Verdict Interviews of
Jurors,82 IOWA L. REV. 465 (1997).
4 HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN JURY 106-08 (1966).
Id.
20011 EMOTIONS IN JUROR DECISIONS

The failure to consider emotional factors in descriptive

theories of the decision-making process reflects a long tradition
of cognitive psychological research that focuses on information
processing and ignores motivational and emotional factors.6
However, there is a sea change under way in the field of
psychology, with recent research and theory emphasizing the
interdependence of cognition and emotion, and even asserting
that rational, adaptive behavior depends equally on cognitive
and emotional systems. For example, Antonio Damasio, a
prominent neuroscientist, cites the dysfunctional decisions of
patients with prefrontal cerebral cortex injuries as evidence
that an integration of cognitive and emotional systems is
essential for adaptive behavior." Patients with orbitofrontal
cerebral cortex injuries exhibit an abnormal dissociation of
cognitive and emotional responses.8
The primary goal of this Essay is to review what is
known factually about the role of emotions in jury decisions.
This Essay will attempt to sketch an account of those findings
within the framework of one of the currently popular cognitive
models of the juror's decision-making process. This Essay
starts with an overview of the three major cognitive theories of
juror decision making.
Many scholars claim that jurors' judgments are best
described by algebraic models of mental processes like those
proposed by philosophers and mathematicians as rational
belief revision principles.9 A popular choice is Bayes Theorem,
which describes the judgment process as starting from a prior
probability of guilt and then adjusting from that initial point
by multiplicatively integrating the implications of new
evidence according to the laws of mathematical probability

DECISION MAKING FROM A COGNITiVE PERSPECTIVE (Jerome Busemeyer et

al. eds., 1995); REASONING AND DECISION MAKING (Philip N. Johnson-Laird & Eldar
Shafir eds., 1993).
ANTONIO R. DAMASIO, DESCARTES' ERROR: EMOTION, REASON, AND THE
HUMAN BRAIN (1994); see also RICHARD S. LAZARUS & BERNICE N. LAZARUS, PASSION
AND REASON: MAING SENSE OF OUR EMOTIONS (1994).
6 DAMASIO, supra note 5, at 53-54.

Reid Hastie, Algebraic Models of JurorDecision Processes, in INSIDE THE

JUROR: THE PSYCHOLOGY OF JUROR DECISION MAKING 84 (Reid Hastie ed., 1993)
[hereinafter INSIDE THE JUROR]; Lola Lopes, Two Conceptions of the Juror,in INSIDE
THE JUROR, supra at 255.
 BROOKLYN LAW REVIEW [Vol. 66: 4

theory." The other popular algebraic process model supposes

that jurors form their initial beliefs about guilt (analogous to
the Bayesian prior probability) and then adjust using an
averaging, rather than multiplying, information integration
process." Empirical studies favor the statistically robust linear,
averaging model over the Bayesian model as a description of
jurors' decision-making processes.12
A second, more complicated theoretical description
comes from research on cognitive judgment heuristics. 3 The
reigning metaphor is that the juror carries a "cognitive toolbox"
of useful inference heuristics in long-term memory, and selects
relevant judgment tools, algorithms, or strategies to solve the
problem of making a legal decision. 14 The cognitive tools that
might be selected, according to the specifics of the case being
judged, include memory retrieval and judgment based on
association strength or fluency, similarity, and inferences, to
create and "simulate" mental models. 5 Many of the tools can be
described as miniature algebraic models in their own right. So,
the image of the decision maker is one of an ingenious, multi-
talented polymath.
The third theoretical description is of the juror as a
"naive reporter" who constructs a narrative summary to
explain the evidence, concluding with the verdict that is most
consistent with that story.16 The primary cognitive activities in
the decision-making process are inferences made to serve the
goal of creating a coherent, comprehensive story to summarize
the situation implied by credible evidence.17 The final stage of

'0 David A. Schum & Anne W. Martin, Formal and Empirical Research on
CascadedInference in Jurisprudence,17 LAW & SOC'Y REV. 105 (1982).
11 Id.
12Id.
" See generally GERD GIGERENZER ET AL., SIMPLE HEURISTICS THAT MAKE

US SMART (1999); Michael J. Saks & Robert F. Kidd, Human Information Processing
and Adjudication: Trial by Heuristics, 15 LAW & Soc'y REV. 123 (1980); Amos Tversky
& Daniel Kahneman, Judgment Under Uncertainty: Heuristics and Biases, 185 SCI.
1124 (1974).
14 Supra sources cited note 13.
15 Id.
12 Reid Hastie & Nancy Pennington, Explanation-basedDecision Making, in
JUDGMENT AND DECISION MAKING: AN INTERDISCIPLINARY READER 212 (Terry
Connolly et al. eds., 2000); Nancy Pennington & Reid Hastie, A Cognitive Theory of
JurorDecision Making: The Story Model, 13 CARDOZO L. REV. 519 (1991).
17 Nancy Pennington & Reid Hastie, Reasoning in Explanation-Based
2001] EMOTIONS IN JUROR DECISIONS

the decision-making process involves classifying the

constructed story into one of the legal criminal verdict concepts
or relying on the story for premises to infer causation and
responsibility to decide many civil cases.
None of these approaches is a unique winner in the
competition for "best theory" status, although the Story Model
provides the most valid description of a typical juror's decision-
making process. It includes many of the heuristic judgment
strategies as sub-components, and it is intended to describe
cognitive processes that could, at a general level, be captured
by the parameters of an algebraic equation. 8 This Essay will
review what is known about the influence of emotions on juror
decisions and conclude with an interpretation of those effects,
in terms of the Story Model, as it provides the most systematic,
detailed, and empirically-supported account of the juror
decision-making process. First, this Essay will further describe
the Story Model.

II. THE STORY MODEL OF THE JUROR'S DECISION PROCESS

The Story Model proposes that the central cognitive

process in juror decision making is story construction-the
creation of a narrative summary of the events under dispute.19
Applications of the Story Model to criminal jury judgments
have identified three component processes: (1) evidence
evaluation through story construction, (2) representation of the
decision alternatives (verdicts) by learning their attributes or
elements, and (3) reaching a decision through the classification
of the story into the best-fitting verdict category.2 0 The latter
processes are likely to vary with the demands of different
decision tasks. Some tasks involve a classification response,
some an estimate or judgment of a magnitude, and some a
projection of future events. For example, the shift from
criminal judgments, where categorical verdicts play a
prominent role, to civil judgments, where degrees of

Decision Making, 49 COGNITION 123 (1993).

18 Lola Lopes, Algebra and Process in the Modeling of Risky Choice, 32

PSYCHOL.LEARN. MoT. 177(1995).

"' Pennington & Hastie, supra note 17.
20 Id.
 BROOKLYN LAW REVIEW [Vol. 66: 4

responsibility play the analogous role, changes these last

stages from a category classification sub-task to a magnitude
estimation sub-task.2
The distinctive claim is that the story the juror
constructs determines the juror's verdict. More generally, the
approach proposes that causal "situation models" play a central
role in many explanation-based decisions in legal, medical,
engineering, financial, and everyday circumstances.'
An illustration of the hypothesized role of narrative
evidence summaries is provided by an interpretation of the
dramatic differences between European-American and African-
American citizens' reactions to the verdict in the 0. J. Simpson
murder trial (where there even appeared to be racial
differences on the jury and within the defense team). The
Story Model interpretation is that race made a difference in the
ease of construction and acceptance of the "defense story" in
which racist police detectives planted incriminating evidence
and bumbling criminalists conducted an incompetent and
biased investigation.2 4
African-Americans have many beliefs and experiences
that support the construction of stories of police misconduct
and police bigotry. 25 Most African-Americans or members of
their immediate families have had negative and sometimes
racist encounters with justice system authorities. African-
Americans know of many more stories (some apocryphal, some
veridical) of police racism and police brutality directed against
members of their race than do European-Americans. This
background of experience, beliefs, and relevant stories made it
likely that African-Americans would construct a story in which

21 Reid Hastie et al., A Study of Juror and Jury Judgments in Civil Cases:

Deciding Liability for PunitiveDamages, 22 LAW HUM. BEH. 287 (1998); Reid Hastie,
The Role of "Stories"in Civil Jury Judgments, 32 MICH. J. REF. 227 (1999).
Nancy Pennington & Reid Hastie, A Theory of Explanation-BasedDecision
Making, in DECISION MAKING IN ACTION: MODELS AND METHODS 188 (Gary A. Klein et
al. eds., 1993).
Katrina D. Mixon et al., The Influence of Racial Similarity on the O.J.
Simpson Trial, 10 J. SOC. BEH. PERS. 481 (1995); Jeffrey Toobin, A Horrible Human
Event, NEW YORKER 40 (Oct. 23, 1995).
24 Reid Hastie & Nancy Pennington, The 0. J. Simpson Stories: Behavioral
Scientists' Reflections on The People of the State of California v. Orenthal James
Simpson, 67 U. OF COLO. L. REV. 957 (1996).
2' See Henry L. Gates, Thirteen Ways of Looking at a Black Man, NEW
YORKER 56 (Oct. 23, 1995).
20011 EMOTIONS IN JUROR DECISIONS

a police officer manufactured and planted key incriminating

evidence. Thus, the Story Model interprets the difference
between African-American and European-American verdict
judgments as a product of differences in their pre-trial
preparedness to comprehend the evidence differently.

HI. EMPIRICAL STUDIES OF STORY-BASED JUDGMENTS

Research on the Story Model has studied mock jurors'

decisions in simulated criminal and civil cases. The first
experiments established that evidence summaries
spontaneously constructed by jurors had a narrative story
structure and that jurors who rendered different verdicts had
constructed different stories. 8 Mock jurors were more likely to
falsely "recognize" sentences from the story associated with
their verdict as having been presented as trial evidence than
they were sentences from stories associated with other
(rejected) verdicts, although many of the test sentences had
never been presented as evidence.2 7
Other experiments were designed to determine
whether mock jurors actually relied on the stories they
constructed to render verdicts.2 These studies demonstrated
that stories played a central role in the decision-making
processes and that they were not merely constructed "on the
side," while the actual decision process relied on other cognitive
processes and conclusions. 29 For example, an experiment was
conducted to study the effects of variations in the order of
evidence presentation on judgments. 0 Stories should be easiest
to construct when the evidence is presented in a chronological
sequence that represents the occurrence of the original events
(Story Order)." Thus, stories should be more difficult to
2GNancy Pennington & Reid Hastie, Evidence Evaluation in Complex
Decision Making, 51 J. PERS. SOC. PSYCHOL. 242 (1988) [hereinafter Evidence
Evaluation]; Nancy Pennington & Reid Hastie, Explanation-Based Decision Making:
Effects of Memory Structure on Judgment, 14 J. Exp. PSYCHOL.: LEARN MEM. COG. 521
(1986).
Evidence Evaluation, supranote 26, at 526.
Nancy Pennington & Reid Hastie, Explaining the Evidence: Tests of the
Story Model for JurorDecision Making, 62 J. PERS. SOC. PSYCHOL. 189 (1992).
9 Id.
30 Id.
31 Linda Baker, Processing Temporal Relationships in Simple Stories: Effects
 BROOKLYN LAWREVIEW [Vol. 66: 4

construct when the presentation order does not match the

sequence of the original events. The non-story order of the
evidence was based on the order of witnesses testifying in the
original trial that was the basis of simulated case materials
(Witness Order). As predicted, mock jurors were most likely to
convict the defendant when the prosecution evidence was
presented in Story Order and the defense evidence was
presented in Witness Order, and they were least likely to
convict when the prosecution evidence was in Witness Order
and defense evidence was in Story Order."
The research program also included studies of
judgments in civil cases-specifically, an application of the
explanation-based model to jurors' reasoning about liability for
compensatory and punitive damages." In one study, mock
jurors (composed of citizens from the Denver area) were
presented with simulated civil cases, based on an actual case in
which the plaintiff sought punitive damages. As in criminal
cases, story construction plays an extensive and central role in
the decision-making process. The final stage of judgment-
deciding on liability-involves many inferences about
causation and egregiousness. It was interesting that these
inferences usually focused on causal necessity, even though the
mock jurors were not instructed to use the common "but for"
test for legal causation.34 That is, mock jurors spontaneously
attempted to infer legal causation by considering
counterfactual conditions to test for the necessity of a
candidate causal event (for example, if additional security
guards had been provided, would the assault still have
occurred?).

ofInput Sequences, 17 J. VERB. LEARN & VERB. BEH. 559 (1978).

32 Evidence Evaluation in Complex DecisionMaking, supra note 26, at 529.

' See sources cited supra note 21.

H.L.A. HART & A.M. HONORt, CAUSATION IN THE LAW 103-22 (1959);
Barbara A. Spellman, Crediting Causality, 126 J. EXP. PSYCHOL.: GEN. 323, 323-24
(1997) (providing a succinct discussion of the psychology of legal causation).
20011 EMOTIONS IN JUROR DECISIONS

IV. EMOTIONS IN JURORS' DECISIONS

The roles of emotions in decision-making processes

have been neglected throughout the history of scientific
research on judgment and decision making." Emotions have
always been a puzzling phenomenon to scientists. There is still
no clear scientific consensus on definitions of basic terms, and
emotional reactions are one of the most mysterious aspects of
everyday life." For present purposes, emotions can be defined
as reactions to motivationally significant stimuli and
situations. These reactions are composed of three components:
a cognitive appraisal, a "signature" physiological response, and
a phenomenal experience. Emotions usually occur in reaction
to perceptions of changes in the immediate situation that have
hedonic (pleasure-pain, good-bad) consequences for the person
who experiences them. This Essay will concentrate on the
emotions commonly labeled anger, sympathy, and fear,
although any human emotion might be evoked by events that
occur in jury trials.
An early, primitive reaction to almost any personally-
relevant object or event is a good-bad evaluative assessment.
Many behavioral scientists have concluded that this reaction
occurs very quickly and includes both emotional feelings and
distinctive physiological events. The primary function
attributed to these fast good-bad reactions is to guide adaptive
approach-avoidance actions and to "winnow down" large,
unwieldy choice sets into smaller sets of options that can then

On the role of emotions in decision of all kinds, see GEORGE F.

LOEWENSTEIN & JENNIFER S. LERNER, THE ROLE OF AFFECT IN DECISION MAKING 177
(Richard Davidson, et al., eds., 2001); see also NEAL FEIGENSON, LEGAL BLAME: HOW
JURORS THINK AND TALK ABOUT ACCIDENTS (2000) (providing an insightful discussion
of the role of emotions injury decisions).
"' Randy J. Larsen & Barbara L. Fredrickson, Measurement Issues in
Emotion Research, in WELL-BEING: THE FOUNDATIONS OF HEDONIC PSYCHOLOGY 40
(Daniel Kahneman et al. eds., 1999); James A. Russell & Lisa F. Barrett, Core Affect,
Prototypical Emotional Episodes, and Other Things Called Emotion: Dissecting the
Elephant, 76 J. PERS. SOC. PSYCHOL. 805 (1999).
3 Antoine Bechara et al., Emotion, Decision Making, and the Orbitofrontal
Cortex, 10 CEREBRAL CORTEX 295 (2000); George F. Loewenstein, Out of Control:
Visceral Influences on Behavior, 65 ORG. BEH. & HuM. DEC. PROC. 272 (1996); Robert
B. Zajonc, Feeling and Thinking: Preferences Need No Inferences, 35 AII. PSYCHOL. 151
(1980).
1000 BROOKLYN LAWREVIEW [Vol. 66: 4

be subjected to a more thoughtful evaluation." Another popular

functional interpretation is that emotions serve a crucial
override function which operates when it is necessary to
interrupt the course of an ongoing plan or behavior sequence to
respond quickly to a sudden, unexpected emergency or
opportunity.39
With reference to the role of emotions in decision-
making processes, an important distinction must be made
between emotions experienced incidentally at the time the
decision is being made and emotions that are truly relevant to
the decision.40

A. IncidentalEmotions

"Incidental emotions" would include the ambient mood

or emotional state of the decision maker at the time of the
decision. Perhaps the juror is in an angry state of mind while
thinking about the case solely because she has heard her
favorite baseball team lost an important game, or the juror is
in a happy mood because he had a positive interaction with his
children over breakfast. Although irrelevant to the
requirements of the jury decision task, such extraneous
emotions can affect judgments and influence verdicts.
One of the earliest studies of an incidental emotion
effects was a demonstration of their arbitrary biasing effects on
personal risk judgments. In one study, college student
participants rated their personal concern and the frequencies
of occurrence for various fatal risks (for example, death by
homicide, death due to stomach cancer).41 Just prior to rating
the risks, participants rated their emotional reactions to a
collection of newspaper articles. Some participants read news
stories about a death due to homicide, leukemia, or fire; others

38 See DAMASIO, supra note 7, at 173.

3' Herbert A. Simon, Motivational and Emotional Controls of Cognition,
74
PSYCHOL. REV. 29 (1967); see also JOSEPH LEDOUX, THE EMOTIONAL BRAIN: THE
MYSTERIOUS UNDERPINNINGS OF EMOTIONAL LIFE (1996) (looking at "learned
triggers").
40 The present distinctions extend an earlier analysis by George F.
Loewenstein et al., Risk as Feelings, 127 PSYCHOL. BULL. 267 (2001).
41 Eric Johnson & Amos Tversky, Affect, Generalization, and the Perception

ofRisk, 45 J. PERS. SOC. PSYCHOL. 20 (1983).

2001] EMOTIONS IN JUROR DECISIONS

read a filler story that did not involve death.42 Over several
experiments, the negative stories (including a non-death,
depressing story) increased ratings of worry and estimates of
frequency of occurrence of the fatal risks.4 3
This basic result-that incidental emotional states
can contaminate judgments of personal and societal risks and
other events-has been replicated many times." Jennifer S.
Lerner, Julie H. Goldberg, and Philip E. Tetlock have
demonstrated an emotional spill-over effect in a legal
judgment." They manipulated their research participants'
incidental mood by showing them a short film depicting the
cruel assault of a young boy by two bullies.4 6 Then, in a
separate experiment, the participants were asked to make
judgments like those required of a civil juror deciding a
personal injury suit.47 The participants were told that the film
was irrelevant to the legal judgment task and that the contents
of the film did not overlap with the situations depicted in the
personal injury cases."' Nonetheless, the participants'
emotional states had an effect on their liability judgments.49
Participants who were exposed to the anger-inducing film
judged the defendants to be more responsible and more liable,
and levied higher damages against them."
Two theoretical interpretations of these effects of
emotions on judgments have been proposed. One model
assumes that an associative network of ideas, perhaps resident
in a durable, very long-term semantic memory, connects

42 Id.
43 Id.
44 Timothy D. Wilson & Nancy Brekke, Mental Contaminationand Mental
Correction: Unwanted Influences on Judgments and Evaluations, 116 PSYCHOL. BULL.
117 (1994); William R. Wright & Gordon H. Bower, Mood Effects on Subjective
ProbabilityAssessment, 52 ORG. BEH. & HUmAN DEC. PROc. 276 (1992).
45 Jennifer S. Lerner et al., Sober Second Thought: The Effects of
Accountability,Anger, andAuthoritarianismon Attributions ofResponsibility, 24 PERs.
SOC. PSYCHOL. BULL. 563 (1998); see also Julie H. Goldberg et al., Rage and Reason:
The Psychology of the Intuitive Prosecutor, 29 EUR. J. SOC. PSYCHOL. 781 (1999)
(replicating and extending the basic results).
Jennifer S. Lerner et al., supra note 45, at 566.
47 Id. at 567.
41 Id. at 565.
" Id. at 568.
GOId.
1002 BROOKLYN LAW REVIEW [Vol. 66: 4

concepts and feelings.51 When a person is in an emotional state,

related ideas and feelings are activated by the automatic
spread of "associative strength" from the source node (for
example, "anger") to connected nodes. Thus, an emotion will
activate many related ideas, some of which may affect
judgments (and behaviors) by making certain information
salient or even by directly activating an action tendency or
goal.52 An alternate model proposes that each emotion includes
a cognitive appraisal component and that one consequence of
appraisal is to promote emotion-specific judgments and
actions. 3 A person in an angry emotional state would have an
increased "action tendency" to behave aggressively, sympathy
would evoke protective and restitutive tendencies, fear would
instigate escape or self-protective behaviors, and so forth."
Either account would imply that inducing an emotional state
would result in a systematic behavioral tendency, and that
such a tendency could influence legally relevant judgments.
The influence of incidental emotions on decisions and
judgments seems maladaptive. Why should an irrelevant,
incidental mood or emotion have an effect that likely interferes
with an important cognitive process? This Essay concurs with
the view that the effects of incidental emotions on jurors'
judgments are almost certainly detrimental to the proper
performance of any of the jurors' tasks.

B. Decision-RelevantEmotions

Decision-relevant emotions can be separated into two

distinct categories: the first category includes "decision process
emotions," or emotions that occur at the time of the decision as
byproducts of making the decision. Although there are many

5' Gordon H. Bower & Paul R. Cohen, Emotional Influences in Memory and
Thinking: Data and Theory, in AFFECT AND COGNITION 291 (Margaret S. Clark &
Susan T. Fiske eds., 1982); Leonard Berkowitz, On the Formation and Regulation of
Anger and Aggression: A Cognitive-NeoassociationisticAnalysis, 45 AMER. PSYCHOL.
494 (1990).
U Id. at 296-99.
53Jennifer S. Lerner & Dacher Keltner, Beyond Valence: Toward a Model of
Emotion-Specific Influences on Judgment and Choice, 14 COGN. EMOT. 473 (2000);
Craig A. Smith & Phoebe C. Ellsworth, Patternsof Cognitive Appraisal in Emotion, 48
J. PERS. SOC. PSYCHOL. 813 (1985).
'4 Lerner & Keltner, supra note 53, at 477-80.
20011 EMOTIONS IN JUROR DECISIONS 1003

personal reports of process emotions in actual jury decisions,

there has been no systematic research on these phenomena in
legal contexts. Many of these reports mention that emotions
associated with stress are common in jury decision situations. 5
The body of behavioral research on stress and decision making
is unsystematic and inconclusive. 6 Paul Slovic provided a
succinct summary in testimony at a federal hearing following a
military accident (time pressure is the most common
manipulation of stress in experimental research):

Under time pressure, the decision maker adopts a simpler mode of

information processing. Rather than evaluate alternative actions
completely, weighing and making tradeoffs among all the relevant
attributes of each option, attention is focused on the one or two most
salient cues and those tend to determine the decision ... Negative
information gains importance under time pressure. If the situation
involves risk, time pressure leads to more cautious, risk-avoiding
behavior, with greater importance given to avoiding losses.

A common assumption is that there is a non-

monotonic, "inverted U" relationship between stress and
performance, such that intermediate levels of stress promote
the most effective, adaptive levels of performance.5 8 However,
there is little empirical evidence for the complete functional
relationship in any situation; certainly no results that would
support conclusions about the effects of stress on jurors'
decisions. Furthermore, although a narrower, more myopic
evaluation of decision alternatives may sound inferior, there is

rs See, e.g., AMANDA COOLEY ET AL., MADAM FOREMAN: A RUSH TO

JUDGMENT? 65, 167 (1995); MICHAEL KNOX & MIKE WALKER, THE PRIVATE DIARY OF
AN O.J. JUROR 132-203 (1995); Nancy S. Marder, Deliberations and Disclosures: A
Study of Post-VerdictInterviews of Jurors,82 IOWA L. REV. 465, 484-85 (1997).
KENNETH R. HAMMOND, JUDGMENTS UNDER STRESS 27 (2000) (concluding
"that it is impossible to draw any general conclusions from the research that directly
addresses the topic of the effects of stress on judgment"); Mary F. Luce et al.,
Emotional Trade-offDifficulty and Choice, 36 J. MARKETING RES. 143 (1999) (providing
a discussion of sources of stress in choice tasks).
V COMMITTEE ON ARMED SERVICES, IRAN AIR FLIGHT 655 COMPENSATION
210 (Comm. Print 1989).
The frequently cited Yerkes-Dodson Law relating stress to performance is
usually stated and applied at a level of trivial and impractical generality;, its original
formulation was in the conclusion of a report of research on shock intensity, visual
discrimination difficulty, and learning speed in mice. Robert M. Yerkes & James D.
Dodson, The Relation of Strength of Stimulus to Rapidity of Habit-Formation, 18 J.
CoMP. NEUROL. PSYCHOL. 459 (1908).
1004 BROOKLYN LAWREVIEW [Vol. 66: 4

no experimental evidence that shows decision-making is

diminished in quality under stress. The research literature
tells us nothing about whether a more stressful or less stressful
jury experience results in a better or worse decision.
The second category of decision-relevant emotions
comprises feelings experienced as a consequence of the
decision. "Consequence emotions" could include feelings of
relief and satisfaction at having rendered a verdict to
exonerate a wrongly accused defendant or to punish a guilty or
liable defendant, as well as feelings of regret or sadness at
having rendered a verdict against a sympathetic person or
party. Because these "consequence emotions" are only
experienced after the decision has been made, it is the
anticipation of those emotions that is important, not the
"consequence emotions" themselves.59

C. Anticipated Emotions

There is a final category of emotionally relevant

reactions that play a central role in decision making, even
though they may not be felt directly as emotions. These are
predictions, at the time of the decision, of future consequence
emotions. Paradoxically, even though these "anticipated
emotions" are predictions of emotions and may not be
experienced directly as emotional states, they are the most
important aspect of emotional experience in the decision-
making process.
The effects of anticipated emotions on decisions admit
a straightforward interpretation within traditional,
consequentialist theories of decision making." According to
these theories, and to many commonsense interpretations,
people are assumed to make decisions by evaluating the

r9 Although, obviously the "consequence emotions" will play an important

role in subsequent decisions, indeed they will be the primary basis for later
"anticipated emotion" judgments.
Go Most normative and descriptive decision theories are consequentialist,
following the usage of Peter J. Hammond, ConsequentialistFoundationsfor Expected
Utility, 25 THEORY & DECISION 25 (1988), including some formulations that are explicit
about the role of anticipated emotions in the evaluation of consequences. See, e.g.,
Barbara A. Mellers, Choice and the Relative Pleasure of Consequences, 126 PSYCHOL.
BULL. 910 (2000).
2001] EMOTIONS IN JUROR DECISIONS 1005

consequences expected to occur if they choose one or another

course of action. Anticipated emotions are simply one of several
kinds of input into the evaluation of the utility or value of
those consequences.
Many of the emotional phenomena that are frequently
cited as playing a role in civil jury decisions are best described
as anticipated emotion effects. Harry Kalven, Jr. and Hans
Zeisel argue that about one-fifth of the judge-jury
disagreements reported by the trial judges they surveyed were
due to jurors' sympathy or anger towards a party or person
involved in the law suits.6 Daniel Kahneman, David A.
Schkade, and Cass R. Sunstein conclude that outrage is the
primary mediator of jurors' decisions concerning punitive
damages.62 Brian H. Bornstein hypothesizes that the impact of
the severity of an injury on mock jurors' judgments of liability
and compensatory awards is mediated by jurors' feelings
towards the parties involved in the cases. 3 In Bornstein's
studies, injury severity had no effects beyond those predicted
via the mock jurors' emotional reactions.' Similarly, Neal
Feigenson, Jaihyun Park, and Peter Salovey interpreted the
complex findings they obtained in a study of personal injury
judgments as the result of jurors' resolution of feelings of
sympathy and blame for the plaintiffs and feelings of anger or
fear evoked by the defendants' actions.' In a more definitive
study, these same authors demonstrated that feelings of anger
towards both parties influenced comparative negligence
decisions in another sample of personal injury situations.6 An
intricate statistical analysis supported their interpretation
that anger towards the plaintiff and towards the defendant

G, KALVEN & ZEISEL, supra note 4, at 111, tbl. 26. These authors also
concluded that sentiments about the law (which we would interpret, at least partly, as
anticipated emotion effects) explained additional judge-jury disagreements.
2 Daniel Kahneman et al., Shared Outrage
and Erratic Awards: The
Psychology ofPunitive Damages, 16 J. RISK UNCERT. 47 (1998).
Brian H. Bornstein, From Compassion to Compensation: The Effect of
Injury Severity on Mock Jurors'Liability Judgments, 28 J. APPL. SOC. PSYCHOL. 1477
(1998).
A Id. at 1487.

Neal Feigenson et al., Effect of Victim Blameworthiness and Outcome

Severity on Attributions of Responsibility and Damage Awards in Comparative
Negligence Cases, 21 LAW & HUMAN BEH. 597 (1997).
Neal Feigenson et al., The Role of Emotions in Comparative Negligence
Judgments, 31 J. APPL. SOC. PSYCHOL. 576.
1006 BROOKLYN LAWREVIEW [Vol. 66: 4

mediated judgments of the responsibility of each party, but

anger did not directly predict award size."
None of these studies provides a precise empirical
measure of "anticipated emotions." However, it is likely that
many of these sympathy, anger, and outrage effects are
expressions of jurors' expectations about how they will feel as a
consequence of rendering one verdict or another.
Note that the implications are not direct. A person
would not expect to feel more sympathy or more anger when
the consequence of the decision is experienced. Rather, the
expectation would be that an appropriate decision (for
example, to give compensation to the sympathetic victim or to
punish the anger-provoking defendant) would result in relief
from the current somewhat negative emotional state. Applying
the cognitive appraisal-action tendencies model, we would
expect anger to promote aggressive, punitive inclinations;
sympathy to promote a compensatory 68 habit; and fear to
promote a defensive, punitive tendency.
Furthermore, some emotional reactions are a normal
part of the decision act, but emotional feelings are not a
necessary condition for the influence of anticipated emotion
judgments. Someone could be in a neutral emotional state at
the time of the decision, but still be influenced by anticipations
of future, decision consequence emotions.

D. Summary

Three important categories of emotional experience

most relevant to the decision act are "incidental emotions,"
"decision process emotions," and "anticipated emotions." What
is known about the effects of these emotional phenomena on
the outcomes of decisions? There is no scientific research on
"decision process emotions" in legal contexts, but there are a
few studies demonstrating the effects of incidental emotions
and anticipated emotions on jurors' decisions.
The extant empirical research literature does not
provide us with a comprehensive list of emotional phenomena
that occur in jury decisions. The most important examples
67 Id. at 587.
C8 Lerner & Keltner, supra note 53.
2001] EMOTIONS IN JUROR DECISIONS 1007

include: reactions to jury service, primarily anxiety and

irritation; reactions to the events that led to the trial, primarily
anger; reactions to participants involved in the trial, primarily
anger, sympathy, and fear; and reactions to evidentiary
exhibits, primarily disgust and horror.
If a juror's general decision-making strategy follows
the stages described by the Story Model, we can locate the
various effects of emotions within that framework. Since,
according to the Story Model, the story is the central
determinant of the decision, this Essay suggests that most of
the effects of emotions will be manifested in characteristics of
the juror's story.
Where do jurors' stories come from? The initial stages
of story retrieval and creation can be biased by simple
associative or appraisal processes. Sometimes, while trying to
comprehend the evidence, the juror is reminded of another
story and that story is used as a template for comprehension of
the current case." The original story may come from a
television show, a movie, a novel, the news, or everyday
conversations. Or perhaps the juror knows of a generic story
schema or story skeleton such as a "script" for a kidnapping, an
oil spill, or a traffic accident." Under these conditions, the
jurors' emotional states will influence the reminding process
and bias the selection of a relevant story from memory.71
In other cases, no related story comes to mind and the
juror constructs a story from background knowledge.7 2 We liken
this process to deduction from a database of facts and inference
rules.73 Again, it is likely that associative or appraisal-based
influences of incidental and anticipated emotions will affect the
nature of the "premises" that are salient, those that come to
mind when a juror attempts to construct a story de novo.74 For
example, if a juror is in an angry emotional state, he or she is
likely to attend to, or retrieve from memory, information that

0 Reid Hastie & Nancy Pennington, The Big Picture: Is it a Story?, 8 ADV.
SOC. COGN. 133, 136-37 (1995).
71 Roger C. Schank & Robert P. Abelson, Knowledge and Memory: The
Real
Story, 8 Anv. Soc. COGN. 1 (1995).
71 Hastie & Pennington, supra note 69, at 136-37.
7 Id. at 136-37.
Pennington & Hastie, supranote 17.
74 Hastie & Pennington, supra note 69 at 136-37.
1008 BROOKLYN LAWREVIEW [Vol. 66: 4

is negative, perhaps exaggerating the egregiousness of the

defendant's alleged conduct or the severity of the injury to a
plaintiff or victim or constructing a story for the instant case
from another story that produced an angry reaction. Thus, one
route whereby a juror's emotional state can influence his or her
verdict is by producing selective, biased retrieval of
information from long-term memory during the story
construction stage of the decision-making process.
A similar effect can occur when the details of a story
are being filled in. Many inferences are required to order the
facts into the narrative format and to fill in the many gaps that
are always present in direct or indirect (for example,
testimony-based) experience. For example, when trying to infer
the intentions or goals of an actor in a crime or accident
situation, a juror's reasoning may be biased by his or her
emotions to "fill in" motivations that are associated with the
juror's current emotional state.75 If the juror has a sympathetic
attitude towards one of the parties in a case, positive, morally
respectable motives are likely to be imputed to that actor;
when the juror is angry or fearful, morally reprehensible
motives are likely to be attributed to the same actor. Thus, the
appraisals or associations elicited by an emotional state may
influence the story construction process and its outcome.
Emotional feelings may also influence later stages in
the story-based decision process. For example, sympathy
toward one party might influence the juror's subjective
criterion or threshold for the acceptance of a story or for the
decision that a story "fits" a legal verdict category "beyond a
reasonable doubt." Unfortunately, psychologists know so little
about those final stages in the juror decision-making process
that we cannot even speculate about the specific role of
emotions. But, it is well-known that decision criteria are
affected by a juror's or judge's motivational state.76
Are there any situations in which emotions
overwhelm the juror and dominate the decision process,
outside of an explanation-based judgment process? This Essay

75 Ziva Kunda, The Case for Motivated Reasoning, in MOTIVATIONAL

SCIENCE: SOCIAL AND PERSONALITY PERSPECTIVES 313 (E. Tory Higgins & Arie W.
Kruglanski eds., 2000).
7G NEIL A. MACMILLAN & C. DOUGLAS CREELEY, DETECTION
THEORY: A
USER'S GUIDE 49-50 (1991).
20011 EMOTIONS IN JUROR DECISIONS 1009

asserts that there are a few cases in which the jurors' decision
is based primarily on emotional reactions. These would be
cases in which the evidence is so sparse or so inchoate that the
juror is unable to construct a narrative summary. In such
cases, the explanation-based story construction process is
blocked, and the juror will rely on other means to make a
decision. One alternate strategy would be to rely on emotional
reactions to the evidence, to the parties, or even to witnesses or
attorneys involved in the case. Under these circumstances,
which this Essay asserts are rare, the ultimate decision might
be based almost solely on emotional factors.
The roles of emotions in jurors' decisions are best
understood by considering the potential influences of the
important kinds of emotions (incidental, decision process, and
anticipatory) within the framework of a comprehensive model
for the decision-making process (the Story Model). This Essay
concludes that most jurors, in most cases, rely on story
construction and story-based inferences to render their
verdicts. Furthermore, most of the established effects of
emotions on jurors' decisions can be accounted for in terms of
an explanation-based model of the decision-making process.
I