Skip to main content
Unpublished Paper
Tell Us A Story, But Don't Make It A Good One: Resolving the Confusion Regarding Emotional Stories and Federal Rule of Evidence 403
ExpressO (2014)
  • Cathren Page, Barry University
Abstract
Abstract: Tell Us a Story, But Don’t Make It A Good One: Resolving the Confusion Regarding Emotional Stories and Federal Rule of Evidence 403 by Cathren Koehlert-Page Courts need to reword their opinions regarding Rule 403 to address the tension between the advice to tell an emotionally evocative story at trial and the notion that evidence can be excluded if it is too emotional. In the murder mystery Mystic River, Dave Boyle is kidnapped in the beginning. The audience feels empathy for Dave who as an adult becomes one of the main suspects in the murder of his friend Jimmy’s daughter. The information about Dave’s kidnapping as a child is prejudicing. On the one hand, it makes the audience hope that Dave will turn out not to be the killer, and, on the other hand, it shows them how he might have turned into a killer. Both the screenwriter and the author trusted the audience with this prejudicing information. However, our legal system does not similarly trust jurors to reach fair decisions when provided with similar information. This system is biased against evidence if it “appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish.” State v. Davidson, 613 N.W.2d 606, 623 (Wis. 2000)(quoting In re Commitment of Franklin, 677 N.W.2d 276, 294 (Wis. 2004)). Yet the United States Supreme Court itself has recognized that attorneys must tell a good story at trial to succeed. This tension is confusing for attorneys, judges, and law students. Moreover cognitive research shows that those same emotions evoked by story are not truly separate from our reasoning. In fact, psychologists have determined that it is unhealthy to encourage the suppression of emotion and that suppressed emotions are more likely to boil over. Additionally, the negative labeling of emotion is a holdover from the times when emotion was labeled as feminine and lesser. However, with language changes in opinions, the system could become more transparent, less confusing, healthier, and more feministic. Since juries’ decisions should not be based on irrelevant considerations evoked by extreme emotions, litigants in the United States may be stuck with the rule on prejudice for now. However, judges could still recognize the importance of emotion in our reasoning and the importance of empathy in building a compassionate society. They could also pay homage to the nebulosity and guesswork involved in determining the emotional effect of evidence. In recognizing nebulosity, they will provide greater clarity and foster a healthier society for all of societies’ members.
Keywords
  • evidence,
  • prejudice,
  • relevance,
  • relevant,
  • emotion,
  • emotional,
  • feminist,
  • feminine,
  • women,
  • Nussbaum,
  • epistemology,
  • trial,
  • litigation,
  • storytelling,
  • narrative,
  • narratology
Publication Date
February 16, 2014
Citation Information
Cathren Page. "Tell Us A Story, But Don't Make It A Good One: Resolving the Confusion Regarding Emotional Stories and Federal Rule of Evidence 403" ExpressO (2014)
Available at: http://works.bepress.com/cathren_page/3/