B. Empathy in the Courtroom
Although the influence of empathy on trial outcomes cannot be easily quantified, it is possible to identify several factors that tend to either increase or decrease the influence of empathy. These factors include: the degree of similarity between jurors and other trial participants with whom they might empathize; the types of opportunities that jurors have to observe or learn about other trial participants; and the empathetic socialization of the various jurors.
Similarities between jurors and other trial participants increase the likelihood of empathetic reactions that could determine trial outcomes. In general, the more a person shares common experiences, values, language, behavior, age, or appearance with an observer, the more likely it is that the person will produce a strong empathetic response in the observer. For example, a juror considering the case against a college-age defendant on a charge of marijuana possession would be likely to experience empathy if the juror also had a college-age son or daughter, especially one with a known history of drug use. In such a case, it is possible; even likely, that the juror will experience a stronger empathetic response to the emotional discomfort of the defendant's parent than to the emotional discomfort of the defendant himself. If the parent is of the same race as the juror, the odds of a powerful empathetic response increase further.
Empathy is also more likely when a courtroom decision-maker observes distress, rather than merely imagines it. Personal cues play an important role in provoking the conditioning, association, and mimicry that are part of strong empathetic reactions. Jurors who observe a quadriplegic victim of a criminal assault usually have a more intense empathetic reaction than appellate judges who know of the victim's quadriplegia only through a written record. The power to imagine holds the power to produce empathy, but the resulting empathetic reaction is normally weak compared to the reaction associated with direct observation of a victim.
The importance of empathetic socialization in determining the overall role that empathy plays in a courtroom is recognized by trial attorneys. Trial attorneys know that some jurors are more empathetic than others. When possible, attorneys who see themselves as representing sympathetic clients will seek out empathetic jurors. Attorneys who lack a sympathetic client but see "the law on their side" will generally prefer less empathetic jurors.
"[The] [d]efendant came into the court with crutches. He was a crippled polio victim. He cried on the stand and obtained the jury's sympathy.” In another case, a judge reported that a jury exercised "the power of pardon" when it acquitted an alleged tax evader who, during the years in question, lost his home to fire, suffered through the death of his son, lost a leg, endured his wife's serious illness, and had born prematurely to him a blind and spastic child. Often the jurors' empathy went not to the defendants, but to their spouses. One judge attributed his disagreement with a jury's decision to the defendant's "very sympathetic" wife, adding that "[t]ears came to [the] wife's eyes on [the] witness stand and four of the jurors cried with her.” In another case, a judge reported that a jury was moved to mistakenly acquit a defendant whose wife "seemed extremely agitated and concerned" and who "lost control of [her] emotions in a quiet and inoffensive manner.”
Kalven and Zeisel boldly attempted to quantify the effect of jury sympathy on verdict disagreement between judges and juries. They calculated that sympathy for the defendant causes a jury to disagree with a judge about 22% of the time. Kalven and Zeisel estimated that jury sympathy had an effect on disagreement in roughly twice as many cases. They also found that juries are roughly four times more likely to acquit a defendant that a judge would have convicted when the judge categorizes the defendant as "sympathetic" rather than "unattractive.” The beneficiaries of jury sympathy were most often females, whites, juveniles, and the elderly.
The Kalven and Zeisel data present several problems for anyone trying to assess the impact of jury empathy on trial verdicts. First, the study identified only instances where judges believed their disagreement with the juries' verdict was the result of the juries' sentiments toward the defendant or another trial participant, when the actual source of disagreement, for example, could have related to the jury's view of the evidence. Second, Kalven and Zeisel acknowledged the difficulty of distinguishing cases of true jury empathy from cases where the jury drew conclusions about the credibility of a witness from his emotional state, dress, or experience.
Third, judge-jury disagreement with respect to verdicts may be influenced by a combination of factors, including jury empathy, which cannot be sorted out and ranked according to the relative contribution of each. Finally, judges are themselves empathetic beings and it is likely that their own perceptions and verdicts are shaped in ways they may not readily acknowledge. Despite these shortcomings, the Kalven and Zeisel data support the view that empathy matters very much in the courtroom and affects a substantial number of verdicts.
However, juror empathy may figure less prominently in trial outcomes today than it did a few decades ago. The Kalven and Zeisel jury study remains the most important source of data about jury behavior even though it is nearly thirty years old. Jurors today are more likely to come from broken homes where the traditional patterns for empathetic socialization are absent. They are also more likely to have reduced sensitivity for the emotions of others because of repeated exposure to violence and emotional trauma in the media.
Those who find it necessary to rein in empathetic behavior believe it is necessary to do so because they believe that empathetic behavior is the handmaiden of discrimination. Because people empathize most readily with those who are most like themselves in appearance and social condition, empathy is seen by some researchers as the source of racism and other forms of discrimination. The favorable treatment that empathy induces toward similarly situated individuals is not likely to be as intense toward those who are different. Empathy may even produce hostility to persons outside one's own group.
The link between empathy and discriminatory jury verdicts has long been suspected. An author of a legal treatise published in 1929 noted:
[T]he juryman is aware of something subtly different from himself in the person of alien race. A juror of a witness's [sic] own nationality may not particularly like him, and may even dislike him, but he feels that he understands him, and he instinctively sympathizes with what is said in his behalf. A Jew will almost always favor a Jew, an Irishman an Irishman; and-shall I say it-an Elk an Elk.
More recently, Professor Derrick Bell has argued that "the lack of similarity between the attitudes of criminal defendants and those of other participants in the criminal justice system may be the most influential factor in the treatment of black defendants.” Several researchers have examined the relationship between juror and defendant characteristics in mock trial settings. In general, these studies showed that the more similar a defendant is to a juror, the more likely it is that the defendant will receive favorable treatment. Dissimilarity causes "a shift toward harshness." Mock jury studies are open to criticism; however, as it is impossible to replicate the pressures that come from judging real people who suffer real consequences from the collective decision of jurors.
white jurors to treat black defendants more harshly than white
well documented. Racial prejudice, of
course, accounts for the harsh treatment received by some black
other cases, it is the inability of whites to understand the language
culture of urban blacks, and not overt prejudice that dooms defense
behalf of black defendants. The low
probability that white jurors will empathize with African-American
is not simply a function of race, but also of the linguistic, cultural,
experiential, and economic differences that divide whites and blacks in
race of the
victim appears to affect trial outcomes at least as much as the race of
defendant. A study of jury verdicts in capital cases in
Most people, including most trial attorneys, are risk-averse. Jurors without risk factors are usually preferred over jurors with risk factors, unless it is clear to an attorney that the risk factor in question poses substantially more risk to the opposing side than it does to her own. As a result, persons who are intelligent, eccentric, stubborn, possess specialized knowledge, or are of high socio-economic status tend to be under-represented on juries. They are the persons against whom peremptory challenges are exercised disproportionately.
The odds that being highly empathetic will get someone excluded from a jury are probably greater than for many other risk factors. More than a stubborn juror or a juror of high socio-economic status, a juror possessing a great capacity for empathy is likely to present a clear threat to one side or the other. Attorneys generally can anticipate which persons connected with a case are most likely to engender empathy. In some cases, it might be the loving and sympathetic family of a victim. In others, it might be the attractive, but down-and-out defendant. In a lawsuit, the attorney who feels most threatened by foreseeable empathetic reactions will normally consider using a peremptory challenge against a potentially empathetic juror.
Of course, many empathetic jurors do sit on criminal juries. Attorneys often fail to discover that a potential juror is unusually empathetic. The sorts of questions typically asked during voir dire often do not reveal evidence of a high empathetic capacity. As a result, a juror who sits pokerfaced during voir dire may be the same juror who, upon listening to trial testimony, suffers severe sympathetic distress. Empathetic jurors are not unrepresented on juries. However, they are underrepresented.
Racial differences between jurors and defendants increase the likelihood that highly empathetic jurors will be excluded. Race becomes an especially crucial factor in trials where the defendant and the crime victim are of different races. Of the shared characteristics or experiences that increase the only 1.1 times more likely to receive a death sentence as other defendants. Plaintiffs challenging the death penalty contended that the disparity proved violations of the Equal Protection Clause and the Eighth Amendment.
The pattern of disparity with respect to the race of the victim, not the defendant, may be attributable in part to the seriousness with which jurors treat questions of life and death. Jurors are likely to consider the race of a defendant, but they may try to exclude the defendant's race as a factor in their decision. In many instances, such as in a murder trial, the race of the victim is not directly before the jury. Jurors may not be aware of the role that the victim's race plays in their decision; therefore, jurors may make no effort to counteract its effect. Although jurors undoubtedly sympathize with most dead victims and their families, regardless of race, it may take an especially intense sympathy to condemn a defendant to death. The ability of white jurors to empathize more easily with white victims than black victims contributes to race-of-victim disparities, and is not an expression of racial hostility so much as it is an emotional fact of interracial relations.
the U.S. Supreme Court was not persuaded that the racial disparities
by the plaintiff, McCleskey, justified overturning his death sentence.
Court noted that jurors may discriminate in many ways that have nothing
with race. Just as jurors empathize readily with the families of white
victims, they may also empathize readily with articulate, attractive,
personable trial participants. If the
The jury discretion that allows for empathetic responses and for discrimination also encourages efforts directed at education and social improvement. Discretion provides the opportunity to shape a world that more closely reflects the visions, values, and biases of the imperfect people who wield that discretion. Juries with discretionary power to act upon their empathy will not always produce the results that liberals want, but neither will they produce the results sought by the generally more conservative legal professionals who would otherwise inherit their power....