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Simple Jury Persusasion: Make them sad and they can’t be mad

Friday, November 19, 2010
posted by Douglas Keene

An accepted truism is that a sad jury awards lower damages from a disempowered sense of hopelessness, and an angry jury awards higher to ‘send a message’. It is never good for the plaintiff when a case concludes with sad and hopeless jurors heading off to deliberate. You end up with “It’s horrible but it’s just one of those things” sorts of reactions from jurors that sound a death knell to hopes of financial recovery.  Often, liability is clear, but their sense of hopelessness has undermined the damages awards.

New research examines this issue by looking at what they call “emotional blunting”. The authors look at how anger experienced first blunts the experience of sadness and how sadness experienced first blunts the experience of anger. This may, as they point out, have direct implications for the courtroom.

A defense lawyer may attempt to elicit sadness in a jury. In so doing, not only could the appraisal tendencies of sadness result in jurors experiencing less anger when considering the defendant’s actions, but also (and more importantly) the blunted anger experience likely would lead the jury to hold the defendant less responsible for his or her actions and thus to recommend a lesser penalty than it otherwise would. Alternatively, the prosecutor could elicit anger in the jury, which could subsequently prevent the jury from feeling sadness and acknowledging the situational factors associated with the case. This blunted sadness could thereby cause the jury to hold an innocent victim wrongfully accountable for a crime. (p 4)

Following several pretty complex analyses of experiments, the authors conclude this:

If you are sad and see that sadness as caused by external events, anger over the events is blunted and you are less punitive.

If you are angry and justify that anger as being caused by the actions of another, subsequent sadness is blunted.

Put another way: how much emotional blunting occurs (and therefore how punitive you are) appears to be a function of whether you attribute blame to a ‘situation’ (e.g., something that happened) or a ‘person’ (e.g., someone caused this to happen).

To achieve anger—put a face on it.

Winterich KP, Han S, & Lerner JS (2010). Now That I’m Sad, It’s Hard to Be Mad: The Role of Cognitive Appraisals in Emotional Blunting. Personality and social psychology bulletin PMID: 20876386

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