From cell phone footage and body cameras to new forms of digital media and AI technologies, courts are confronting an expanding range of emotionally evocative evidence—a trend that shows no signs of slowing. How courts might handle such evidence, and the emotions it stirs, is something American Bar Foundation Research Professor and Nathaniel L. Nathanson Professor of Law at Northwestern Pritzker School of Law, Janice Nadler hopes to explore.
In a recent interview with the ABF, Nadler breaks down effects of emotionally evocative evidence in court, and how an evolving technological landscape presents unique challenges to both jurors and judges. Outlining the differences between the probative and prejudicial effects that emotionally evocative evidence might pose to a jury, Nadler offers several approaches to mitigating emotional effects. These include carefully constructed jury instructions as well as interventions that reduce the emotional impact of evidence itself.
“Emotion is unavoidable, but it’s not unmanageable.”
While the instinct might be to instruct jurors to set emotions aside, Nadler finds such instructions often fall short. Telling jurors to disregard their emotions as jurors may instead make them more conscious of their emotional response. However, instructing jurors of the effects of discrete emotions and their biasing effects might negate the greater effects.
Courts can also mitigate the emotional impact of evidence itself, rather than relying on jurors to regulate their responses. Nadler points to the use of gruesome photographs as an example. Such photographs can inflame jurors’ emotions and increase the likelihood of conviction, but changing how they are presented may reduce emotional impact. One solution is swapping the use of color photographs for black-and-white ones. Through this exchange, the “disgust response” as Nadler puts, is drastically decreased, while the probative information that allows jurors to comprehend relevant facts is retained
These interventions are likely to become increasingly important as the ways evidence is captured and presented continue to evolve. Eyewitness and body camera recordings can bring events into the courtroom with new immediacy, while AI is introducing increasingly immersive forms of evidence, including recreations of statements from deceased victims. For Nadler, these developments present both a challenge for existing doctrine and an opportunity for further research. Her ABF research project, The Probative Versus Prejudicial Effect of Gruesome Photographs in Court, examines how emotion shapes jurors’ responses—and how courts can manage those effects to ensure fairer procedures.
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The American Bar Foundation (ABF) is the world’s leading research institute for the empirical and interdisciplinary study of law. The ABF seeks to expand knowledge and advance justice through innovative, interdisciplinary, and rigorous empirical research on law, legal processes, and legal institutions. To further this mission the ABF will produce timely, cutting-edge research of the highest quality to inform and guide the legal profession, the academy, and society in the United States and internationally. The ABF’s primary funding is provided by the American Bar Endowment and the Fellows of The American Bar Foundation