The Affective Blindness of Evidence Law

Evidentiary rules and practices reveal a folk psychological view of emotion, placing it at odds with reason. Specifically, many substantive and procedural rules of evidence explicitly require jurors to turn off their emotions in favor of rational, so-called “top-down,” executive thinking. In order to make the point that this dichotomy between emotion and reason is simultaneously reflected in our evidence law and also empirically wrong, I will address how emotion is treated in (a) the use of limiting instructions, (b) the exclusion of prejudicial evidence, (c) credibility assessments, (d) sentencing and damages instructions, (e) instructions related to the “heat of passion” theory of voluntary manslaughter, and (f) the excited utterance hearsay exception. In each case I will demonstrate that while the text of the rules may be benign, the way they are interpreted reflects confusion over the role played by both subtle and intense emotion.