The Affective Blindness of Evidence Law

85 Pages Posted: 6 Oct 2015

See all articles by Teneille R. Brown

Teneille R. Brown

University of Utah - S.J. Quinney College of Law

Date Written: Jan 01, 2011

Abstract

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.

Keywords: dual-process, emotion, evidence, psychology, folk psychology, cognitive psychology

Suggested Citation

Brown, Teneille R., The Affective Blindness of Evidence Law (Jan 01, 2011). Denver University Law Review, Vol. 88, No. 47, 2011, Available at SSRN: https://ssrn.com/abstract=2670210

Teneille R. Brown (Contact Author)

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States

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