Emotion in limine

Professor Susan Bandes provides insight into the impact of emotion in the courtroom

Susan Bandes DePaul Law
Susan Bandes is the Centennial Distinguished Professor of Law at DePaul University College of Law.
What does remorse look like?

Professor Susan Bandes knows that the answer can wield serious consequences in a court of law.

For nearly two decades, Bandes has lent her voice to highlighting the quiet but powerful influence of emotion in the law. Her book “The Passions of Law,” an anthology of likeminded thinkers in the niche of emotion and law, was hailed as a watershed moment and instantly established her as a pioneer in the field.

In her recent chapter in “Emotional Expression: Philosophical, Psychological, and Legal Perspectives,” Bandes contemplates the concept of remorse in the context of Boston Marathon bomber Dzhokhar Tsarnaev.

Tsarnaev, who was convicted of killing three people and wounding 260 in what was deemed a terrorist attack, was condemned to death. Media reports and post-sentencing interviews with the jurors who imposed this penalty were nearly unanimous that Tsarnaev showed no remorse during the trial, the sentencing phase, and when victims and their families spoke about the horrors they endured.

“We know that in a capital case, one of the three main factors in whether a defendant is sentenced to death by the jury is whether he looks remorseful,” says Bandes. “However, there’s no evidence to suggest you can tell whether someone is remorseful or not by looking at their facial expression.”

Bandes advocates a more interdisciplinary approach. “We need to ask instead: What are the implicit rules in a particular culture about how emotions ought to be expressed? A teenager might not be willing to look vulnerable; she might need to project toughness. A judge or juror might not understand this, and might have a definite idea about what remorse ought to look like. The decision-maker might mistake a tough exterior for remorselessness. These kinds of cultural miscommunications have serious consequences in a courtroom. We need to examine what the defendant means to convey, and we need to examine how the jury or the judge interprets his message.”

Bandes describes the courtroom as an “emotional ecosystem.” “In a courtroom, every expression of emotion has a ripple effect,” she explains. “In a therapeutic context, or a spiritual context, or a familial context, of course family members should be able to express their emotions if it will help them. But in a court of law, this expression of emotion can’t be judged just by whether it helps the grieving family members. It must also be judged by how it affects other legal values. For example, there is evidence that victim impact statements may make jurors more empathetic toward some victims than others, based on factors like the race, ethnicity or respectability of the victims. Also, there is evidence that the statements may make jurors so angry at the defendant that they cannot accurately evaluate the evidence. In determining which emotions may be expressed in a courtroom, it is important to look at the impact of that expression on the whole range of legal concerns.”

Listening to emotions

Bandes believes that traditional legal thinking emphasizes only the logical and rational, and excludes emotional components as unwelcome intrusions into this orderly realm. Yet, she argues, emotion pervades the law, and emotion and logic are related in many ways.

“It is clear that lawyers use emotional arguments to communicate with jurors,” Bandes offers for example. “The standard view is that trial lawyers have to traffic in emotional arguments because jurors just don’t know any better—they can’t think logically the way trained lawyers do. The view is that in an ideal world, law would be all about logical arguments. But this view falls apart once you start examining it closely. Once I began thinking about how legal reasoning works, I became fascinated by how impossible it is to separate emotional expression from legal reasoning—not just for juries but for all legal decision-making.”

Further, she argues that law school education historically excludes discussion of emotion. She recalls realizing early in law school that emotional reactions were off-limits. She was sitting in contracts class, listening to a case about individuals whose home was destroyed by strip mining in the area. They were to be compensated for the value of their home—which was around $300—instead of the cost of replacing their home, which was far more expensive. She felt they were being cheated. However, she saw that expressing moral outrage at in justice would be viewed as emotional and therefore illogical and “unlawyerlike.”

“It’s important for students to understand these doctrinal concepts,” she says, “but they do occur in a social context and in an emotional context and in a moral context.”

Creating a niche

Bandes joined the DePaul law faculty in 1984. In addition to her work in the field of law and emotion, she is a well-known scholar of federal jurisdiction, criminal procedure and civil rights. Currently, Bandes stands among the top 20 most-cited criminal law and procedure professors in the United States as ranked by Brian Leiters Law School Reports. In 1991, however, two U.S. Supreme Court cases decided by Justice William Rehnquist disrupted her legal thinking.

DeShaney v. Winnebago County held that compassion had no place in a legal decision concerning the state’s liability for failing to care for an abused child. However, in Payne v. Tennessee, the Supreme Court decided that victim impact statements—in which victims describe the pain they have suffered as a result of the defendant’s acts—were permitted in the sentencing phase of criminal trials. Bandes felt strongly that the two cases were in conflict in allowing the administration of justice to include emotion in one case but not in the other—and, further, that no one was talking about this conflict.

In 1996, Bandes wrote “Empathy, Narrative, and Victim Impact Statements” for the University of Chicago Law Review. The article, which received significant academic interest, would be the first of many articles Bandes dedicated to the topic.

Following the success of this piece, New York University Press contacted Bandes and requested that she write a book on the topic. Around the same time, University of Chicago Law and Ethics Professor Martha Nussbaum delivered DePaul’s Enlund Lecture. She told Bandes that she had read and enjoyed her article, and they discussed the beginnings of Bandes’ anthology “The Passions of Law.” Nussbaum agreed to sign on as a contributor. Nussbaum also suggested assembling a conference at the University of Chicago, featuring planned book contributors.

The 1998 conference was electric, Bandes recalls, and it seemed to be the beginning of something important. “The Passions of Law” was published in 2000 to critical and popular success.

Interdisciplinary importance

In her scholarship, Bandes says she has two goals. The first goal is to establish the importance of interdisciplinary research in emotions. This is essential, she says, because “emotional expression” means different things in different fields; creating a full picture of what it means to the legal system requires insights from neuroscience, psychology, philosophy, anthropology, sociology and other disciplines.

“Too much research on emotion treats emotion like an individual and internal phenomenon—something each of us feels inside ourselves,” she explained. “But sociology, for example, teaches that emotion is not just internal. We learn what we ought to feel in various circumstances (happy at a wedding, sad at a funeral) and we learn the implicit rules about what feelings to express, and how strongly to express them, in different contexts. In a courtroom, all these implicit rules about feeling and expression are at play, plus the courtroom has its own set of rules about what emotions are appropriate.”

The second is encouraging those doing empirical work on emotion to focus on legal issues. This is beneficial for social scientists because the courtroom, unlike the lab, involves people in real situations, facing real consequences.

Recently, Bandes co-authored an article with Jessica Salerno, assistant professor of social and behavioral sciences at Arizona State University, on the topic of how gruesome autopsy and crime scene photos affect jury decision-making. They decided to design experiments to answer some open questions about how these photos affect juries. “Some photos make jurors angry, and there’s evidence that when they’re that angry they want someone to blame,” Bandes said. “Once they feel that way their anger interferes with their ability to listen to the other evidence.”

Salerno and Bandes, as well as Northwestern University’s Janice Nadler, received grants from the American Bar Foundation and the National Science Foundation that enabled Salerno to conduct this research at ASU, with Bandes and Nadler in an advisory role.

Bandes and Vanderbilt Law School’s Terry Maroney recently coedited a special issue of the interdisciplinary journal Emotion Review which includes articles from a range of disciplines, focusing on the topic of law and emotion.

Thinking like a lawyer

Broadly, Bandes challenges the idea of what it is to “think like a lawyer”—a concept that ordinarily connotes reasoned logic and exclusion of emotion in decision-making.

In a recent article for the National Law Journal, Bandes discussed the harmful effects to lawyers who try to banish emotion from their work lives, including high rates of depression and alcoholism.

For the Journal of Legal Education, Bandes wrote about the impact of Ferguson police violence on legal education. She discussed the concept of moral shock and outrage and the police shootings and deaths of Eric Garner, Freddie Gray, Sandra Bland and Samuel Dubose, among others. For her, the piece helped clarify that as much as she loves teaching criminal procedure, she often feels as though she is not conveying the full moral dimensions of Terry stops and the notion that black and Latino communities may experience an entirely different kind of policing environment. This past semester, she taught a seminar on policing that relied on first person accounts and other narratives, instead of on case law.

Emotion's place in the legal system

Though emotion has always been part of the administration of justice—for better and for worse—what is changing, Bandes says, is that the justice system is becoming more willing to acknowledge that emotion is an inevitable part of the legal system.

“That is a crucial step,” she says. “Once we realize that, we can begin the important debate about which emotions belong in which legal contexts, and how to encourage the helpful emotions and discourage the harmful ones.”