Originally published by Douglas Keene.
Reviewing gruesome photographs and listening to emotional testimony about terrible injuries is something we do routinely. When we need to test their impact in our pretrial research, sometimes mock jurors (and occasionally trial jurors as well) are given the option of not looking at the photographs. They are put in an envelope, the envelope is passed around, and whoever wants to open it can do so. Gruesome photographs can be powerful. So can emotional testimony when seen as sincere and resulting from love and loss. So sometimes it’s hard to understand how research like this can lead to tenure since the answer is obviously “yes” for at least some jurors. But on this sort of work, careers are made, curriculum vitae are built, and academic research programs expand. So it goes.
These Japanese researchers wanted to see how strongly emotional testimony or gruesome photographs would affect eventual verdict decisions. So they gathered 127 participants (38 males and 89 females; aged 18 to 48 years with an average age of 20.83 years; 70 of the participants were over 20 years old and 57 were less than 20 years old) who attended a local university. Participants were asked to complete the Juror Negative Affect Scale (JUNAS) which they describe as an adjective list categorized into four subclass (fear/anxiety, anger, sadness and disgust—and for this study all the adjectives were translated into Japanese and listed in random order). The JUNAS was used to measure participant emotional states prior to the experiment and they rated each adjective on a 5 point scale from ‘not at all’ to ‘extremely’.
Then, jurors were assigned to a condition (photographs either gruesome or not gruesome and evidence either emotional or not) and listened to a trial transcript designed to be a weak case for a guilty verdict. The transcript was of a murder case where a homeless man randomly chose a young female victim and killed her so he would go to prison and have a place to live. Initially the homeless defendant confessed, but later he withdrew his confession and said he was innocent. The transcript (ranging from 20 – 23 minutes to review) contained opening statements, evidence presentations, cross-examination, eyewitness testimony and two kinds of circumstantial evidence. In those participants who were included in the emotional evidence presentation—they were read testimony by the victim’s father about the impact of his child’s death. In those participants who were in the gruesome photos condition, participants saw “six gruesome photographs taken from different angles” while they listened to the transcript being read with a description of the scene for about two minutes. At the end of the transcript, the Prosecutor asked for the death penalty while the Defense attorney asked for acquittal.
Finally, after listening to the transcript, participants again rated their emotional state using the JUNAS (with the adjectives presented in a different order than during the initial completion). They they made an individual verdict decision (guilty or not guilty) and if they chose guilty, they offered a sentencing decision and rated their confidence in their verdict decision (1=absolutely not guilty and 10=absolutely guilty). They were also asked to respond to how convincing the evidence was and how shocking the photos were to them. (Some of the participants did not complete the JUNAS completely and had to be removed from the study. The results are thus based on 112 participants.) Here is some of what the researchers found:
74 participants said the Defendant was guilty [despite the fact the transcript was designed to create uncertainty about guilt] and 38 participants said he was not guilty.
Participants who both heard testimony from the victim’s father and saw gruesome photographs were more likely (79%) to find the defendant guilty than those participants who either heard testimony from the victim’s father or saw gruesome photographs but not both (70%) and those who heard no emotional testimony from the victim’s father and also did not see gruesome photographs were even less likely to find the defendant guilty (46%). In other words, while all the participants heard the same trial transcript—the difference was whether they heard emotional evidence (e.g., the father’s testimony or the gruesome photos).
Emotional testimony was most powerful on guilty verdicts while gruesome photographs alone was a much weaker finding (although still significant) and the researchers think their professionally prepared but still fake photographs may have not been “gruesome enough”. However, when the photographs were combined with the father’s testimony, the power of the effect was startling according to the researchers.
Additionally, the participants who heard the emotional father’s testimony and saw gruesome photos also had more negative emotions on the JUNAS at the end of the experiment. The researchers think this reflects the use of “affect-as-information” whereby since the participants felt badly, they tended to punish the defendant with a guilty verdict.
From a litigation advocacy perspective, this study tells us that if there are both gruesome photographs and emotional testimony in the form of a victim impact statement, it would be good to use both of them during trial. This is likely not a newsflash for you. But the simple explanation the researchers offer may be new to you.
The reason this works is because emotional evidence elicits negative feelings in listeners/jurors and they then want to punish the defendant.
Oh wait. That isn’t news either! What this is though, is recent research that tells us what we believe to be true about the role of anger (what the researchers describe as “negative emotions”) in jurors appears to still be true. When jurors are angry, they look for someone to punish. Sometimes, that person may be your client.
Matsuo, K., & Itoh, Y. (2015). Effects of Emotional Testimony and Gruesome Photographs on Mock Jurors’ Decisions and Negative Emotions Psychiatry, Psychology and Law, 1-17 DOI: 10.1080/13218719.2015.1032954
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