What restrictions exist an emotional appeals in a court of law?
April 12, 2006 6:12 PM   Subscribe

How far can attorneys go in appealing to a jury's emotions? Is there any restriction, formal or informal, on the use of such tactics? What precedent is there for their excessive use?

Watching coverage of the Moussaoui trial, it's been shocking to see how far the government prosecutors have been willing to go in appealing to the jury's emotions. According to the BBC, prosecutors have presented to the jury a cockpit tape from United 93, photographs of burned bodies from the wreckage of the pentagon, a recording of a man's final phone call made in his WTC office
(complete with "synchronized video" of the towers collapsing")
, and testimony of former NYC Mayor Rudy Giuliani about what he witnessed during the day of the attacks. (Did I miss anything?) None of these things are directly related to actions that he took, even by his bizarre confessions.

Is this just the government giving in and joining Moussaoui in making a mockery of this insane spectacle, or are they just going death penalty For The Win? But more importantly, can this really happen? I haven't seen any commentary on this at all, either. It just seems ridiculous to me that this kind of manipulation could be allowed to occur in a trial that would then continue to a verdict and its enforcement. But, maybe it's commonplace. Drop some science.
posted by Embryo to Law & Government (25 answers total)

Judge Warns Prosecutors To Limit Emotional Testimony In Moussaoui
"On a day that jurors heard unedited recordings of phone calls made by doomed 9/11 victims, the judge in Zacarias Moussaoui's sentencing trial warned prosecutors Monday to limit the amount of emotional testimony.

The warning came as victims' family members continued to detail their painful experiences in the days and months after the attacks. The testimony is part of prosecutors' attempts to show that Moussaoui deserves the death penalty for his role in the September 11 attacks.

The judge is concerned that too many of the victims' accounts may be overly prejudicial to the jury, and could serve as grounds for an appeal should they decide to sentence the confessed al-Qaeda conspirator to death."

[NY1 News | April 12, 2006]
posted by ericb at 6:28 PM on April 12, 2006

Response by poster: err, the title should read "...exist on emotional appeals..."
posted by Embryo at 6:35 PM on April 12, 2006

Response by poster: Oh yes, I meant to include that in my question. Thanks for pointing that out. The judge did say that, but his statement was very vague, and the list of evidence I posted above is of things that he did allow to be shown to the jury.. And it still seems incredible. So the question is the same; is it fully up to the discretion of the judge, or is there some other rule or procedural limit (maybe even one that the judge would look to in determining how much emotional appeal would constitute "overdoing it"?
posted by Embryo at 6:39 PM on April 12, 2006

Response by poster: Ahh, sorry, I missed the fact that he was referring to an appeals court judge rather than his own ruling regarding an appropriate limit. But still, on what grounds could "overdoing it" legitimate an appeal? What would any judge, appeals or trial, look to as a limit?
posted by Embryo at 6:41 PM on April 12, 2006

These Federal Rules of Evidence are the key.

Rule 401. Definition of "Relevant Evidence"

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

posted by jayder at 7:05 PM on April 12, 2006

Response by poster: So the limitations on relevant evidence are pretty vague, then, unless there are some legal code words in there I'm not familiar with.

Seems a stretch to even call that stuff "relevant", though. Seems like any one of those things cited above would have been sufficient to prove that 9/11 happened. What does the relative atrocity of the details have to do with whether or not Moussaoui should bear responsibility?
posted by Embryo at 7:09 PM on April 12, 2006

jayder, the Federal Rules of Evidence don't apply at the sentencing phase.

When a defendant does something horrible, there is absolutely nothing wrong with showing the jury just how horrible a thing they did. If that manipulates the jury's emotions, well, that's part of the point--especially in the sentencing phase, the jury's job is to be a moral voice. In fact, victims of crime have a statutory right to testify at sentencing.
posted by profwhat at 7:23 PM on April 12, 2006

the jury's job is to be a moral voice.


No. No. No. No. No. No. No. No. No.


If you didn't understand any of those, try one of these.

The job has absolutely nothing to do with morality. Nothing.

Anybody who doesn't understand this has failed to understand the most basic underpinnings of American society.
posted by I Love Tacos at 7:31 PM on April 12, 2006

In the interest of answering the question rather than arguing, let me provide some data to back up my answer.

"This Court has emphasized that a sentence of death must reflect an ethical judgment about the 'moral guilt' of the defendant. ... . 'Moral guilt' is a determination that a jury, as representative of the community, is peculiarly well suited to render." Schiro v. Indiana (Thurgood Marshall dissenting)

"The objectives of fairness and accuracy are more likely to be threatened than promoted by a rule allowing the sentence to turn not on whether the defendant, in the eyes of the community, is morally deserving of the death sentence, but on whether the defendant can strike an emotional chord in a juror." -- Saffle v. Parks.
posted by profwhat at 8:54 PM on April 12, 2006

The job has absolutely nothing to do with morality. Nothing.

Anybody who doesn't understand this has failed to understand the most basic underpinnings of American society

Oh, please.

Sorry for the derail.
posted by Kwantsar at 10:25 PM on April 12, 2006

I think you're using the quotes that refer to "moral guilt" in an unfair way. Moussaoui might not be "morally guilty" if found insane, for instance -- physically, empirically, technically guilty, but not morally.
posted by AmbroseChapel at 10:27 PM on April 12, 2006

The sentencing phase is not the same as the first part of the trial where guilt is assessed. Many penal codes, including the Model Penal Code, have aggravating or mitigating factors to look to in determining the severity of the sentence. Some of those factors have a sort of gut level moral component to them. Juries are not robots or computers determining the precise level of guilt and punishment and they rely on their humanity.

profwhat is correct when he intimates that during the sentencing phase many soft factors come into play. Whether or not the jury can be characterized as the moral voice of the State is debatable (it is not as clear cut as some are making out), but what can't be denied is that morality places a significant role in juries deciding on whether to allow the death penalty (along with other factors of course).

Also, it is highly unlikely that an appeals court judge would overturn the death penalty decision on the basis of the evidence presented being too prejudicial. Rule 403 is the balancing test mentioned above (probative vs. prejudicial) and a high degree of discretion is placed with the trial judge. On the other hand, death penalty cases have always enjoyed a higher level of scrutiny by appeals courts because of their extreme nature.

I hope dios or monju_bosatsu weigh in, they are more knowledgable about law than myself and most people on this board.
posted by Falconetti at 10:43 PM on April 12, 2006

A "moral voice" implies the power not only to offer forgiveness from a law, but also to impose new sanctions without any basis in evidence or law.

Example: I think it's immoral to _______.

I get on a jury, and a known ______er is charged with something minor, but the evidence doesn't hold up at all.

I can't be a "moral voice", and sentence him to life in prison because I disagree with his _______ing ways.

I find it deeply disturbing that any American citizen could convince themselves that it's appropriate to use Jury Duty as a time to express a "moral voice".

Would the militant-vegans among you convict us all of murder, if our alibi involved eating steak?

Well, this one might not get deleted. Oh, and I already flagged the earlier ones, so just move on.
posted by I Love Tacos at 11:50 PM on April 12, 2006

profwhat --- whoops, that shows how much attention I was paying. I didn't realize the FPP was referring to the sentencing phase, although I knew the case was in the sentencing phase.
posted by jayder at 1:58 AM on April 13, 2006

profwhat -- And I meant to link to your comment. Damn, I need to just take a break.
posted by jayder at 1:59 AM on April 13, 2006

Embryo-- just wanted to make note that the judge, Judge Brinkema, is a woman. One could argue as to the relevance of this detail, but I wanted to mention it since your above post referred to "his statement," etc.
posted by Harvey Birdman at 2:36 AM on April 13, 2006

First I love Tacos: The job has absolutely nothing to do with morality. Nothing. (emphasis his)

Second I Love Tacos: There are no examples of it being used as a "moral voice" against the defendant.

Your restatement is far weaker than your original. Probably because your original statement (with its bold type, and all) didn't leave room for a jury to acquit a guilty defendant of an unjust law-- which is an act of morality, and an essential underpinning of American jurisprudence.
posted by Kwantsar at 6:36 AM on April 13, 2006

Mod note: a few comments removed, take any and all insults to email or metatalk
posted by jessamyn (staff) at 7:30 AM on April 13, 2006

I'm opposed to victim impact testimony, and the Moussaoui trial is an especially egregious example. He's a nut intent on committing suicide by jury, and all the 9/11 evidence, which he probably had nothing to do with, will almost certainly get him the death penalty. I don't believe jurys should make decisions on emotions, but on logic.
posted by kirkaracha at 8:04 AM on April 13, 2006

Kwantsar: If you or I were normal people, and not Internet Assholes, we'd probably agree that "moral voice" is a strong overstatement and "NO!" missed an exception.

Too bad neither of us is capable of that sort of admission that our previous statements weren't correct.

I know I'm not.
posted by I Love Tacos at 8:07 AM on April 13, 2006

Response by poster: Harvey Birdman: thank you very much for pointing that out. Totally my bad for assuming that the judge was male in the absence of specific knowledge of her gender.
posted by Embryo at 9:27 AM on April 13, 2006

My old torts prof said, "Advocates don't search for the truth. The trial searches for the truth by having the advocates clash. Truth 'outs' from the conflict. It's the sparks struck off from the clash of opposites."

This is of course bulls**t, or at best only half the story. A trial is about solving problems too difficult for the parties to agree on.

A civil suit is incredibly expensive, and no reasonable litigants would pay the cost. It's only when both sides dig in, or when the plaintiff is salivating at the chance to get a lot of money, that civil suits go to trial. A civil trial is society's way of taking two people who are at one anothers throats and saying "You win, and you lose. Now go away and stop fighting."

A criminal prosecution is just as expensive for the defendant, who has his (or, occasionally, her) freedom at stake (not to mention being the subject of homosexual rape in prison). A criminal trial is society's way of taking people who can't be controlled and putting them out of the way, where they can't do harm for a while.

A trial must be fair, but it's even more important that the result be final.

Lawyers are hired guns. (Note that IAAL.) We're trained to be "zealous advocates." Even in the most polite trial, the object is always to make the other side look bad and destroy the credibility of opposing witnesses.

The only thing the Moussaoui prosecutors might be doing wrong is pouring on too many horror stories and sating the jury's capacity for outrage.

Finally, a lawyer can't let him/herself believe too much in the client's case. It clouds your judgment of what strategy and tactics will work best. You think of it as a game. If you were personally involved, you couldn't bear losing a case. It would be like having an arm torn off.

Coming at it from another angle, the great baritone Dietrich Fischer-Dieskau, in his book on singing, wrote that the singer must be careful in the last few songs of Schubert's great, tragic cycle Die Schöne Mullerin. If you let yourself be affected by the poetry or the music, which express overpowering pain, you may start to cry yourself, making it impossible to sing well. You must keep your emotions out of it (although you should give the impression that you are deeply involved). Your job is not to show the audience you are experiencing emotion. Rather, it is to evoke those emotions in the audience.

You have to play it as a game. That doesn't mean you can't jump up and down. It just means you decide calmly that that's what is needed.
posted by KRS at 1:12 PM on April 13, 2006

Here is a good link to annotations of cases where the Supreme Court found that a trial court had committed error in the sentencing phase of trial. Not all of these deal with purely emotional appeals, but several do. They give you a good illustration of how far a court can, and cannot, go in allowing in testimony that would be considered prejudicial at the earlier phases of the trial.
posted by fearless_yakov at 2:22 PM on April 13, 2006

As fearless_yakov's link shows, laws are modified and fleshed out by precedent. Although the Federal Rules of Evidence may sound broad, cases that have been decided by higher courts will determine the boundaries of what lower courts can and cannot allow.

I once worked for a judge who was hearing a case about a plane crash. The plaintiffs wanted to show the jury an animated video reconstruction of the crash with an accompanying audio recording of the pilots speaking to the passengers and saying good-bye to their families as the engines failed. We had to watch the video ahead of time to help the judge determine whether or not to allow it into evidence.

To my mind, the tape was needlessly inflammatory without providing any real additional information. But I believe the case settled on the eve of trial before the judge make a decision about it.
posted by equipoise at 5:29 PM on April 13, 2006

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