Abstract
This article provides a brief introduction to psychological emotion theories, particularly appraisal theory. According to appraisal theory emotions are combinations of a person’s appraisal of the novelty, valence, certainty, goal conduciveness, causal agency, controllability, and morality of a situation. These dimensions correspond to elements of the stories attorneys attempt to create in arguing a case. Appraisal theory puts specific content into the vague concept of reappraisal, accounting for emotional changes that go beyond the changes in valence and intensity generally studied by law and emotions scholars.
Keywords
The field of emotions and law has prospered without much grounding in psychological theory and research on emotion. The prevailing view in law had been that jurors might be swayed by emotions, but that this was inappropriate, and that trial attorneys should avoid emotional appeals (ABA Project on Standards for Criminal Justice, 1974) because emotions are “incapable of establishing the truth of conclusions” (McClurg, 1992, p. 66). Lawyers, legal scholars, and judges were assumed to rely on reason alone, and the very suggestion that emotion regularly influences their thinking was news (cf. Abrams & Keren, 2010; Maroney, 2006; Pettys, 2007, for reviews). At the beginning the basic message of law and emotions scholars was that emotions are pervasive and inevitable in legal decision making, and not necessarily detrimental. Familiarity with research and theory in the psychological study of emotions was uneven in law and emotions scholarship, and although it has improved, an overview of the basic theories of emotion, and particularly of appraisal theory, may still be useful. The purpose of this article is to acquaint the law and emotion community with the basic psychological theories of emotion and to propose the value of a greater familiarity with appraisal theory.
There are four general theoretical points of view on emotion, some of which overlap. First, there is the idea that there are fixed, biologically based distinctions among the emotions that have common English names, such as fear, anger, sorrow, and happiness. This view is generally referred to as basic emotions theory, and has been prevalent among philosophers since Aristotle. In modern times it is traced to Darwin (1872/1965), although many of the categories described by Darwin include a variety of emotions that are not categorized together in more modern theories (e.g., anxiety and grief; contempt and patience; surprise and fear).
Second, almost equally old, is the idea that rather than distinct categories, emotions are best characterized as evaluations of the world on various more basic dimensions, such as positive/negative, intense/weak, and in control/out of control. Theorists differ in how many dimensions are necessary (see Smith & Ellsworth, 1985, for a review), but the basic idea is that any emotional experience can be located as a point on a set of underlying dimensions (Russell, 1980; Schlosberg, 1954; Wundt, 1907). Fear, for example, is a negative state that is high in arousal and low in a sense of control (Osgood, Suci, & Tannenbaum, 1957). Dimensional theories have the advantage of describing relations among emotions (e.g., joy is opposite from sorrow; fear is similar to surprise but more negative; anger is closer to moral disgust than it is to physical disgust). The two-dimensional circumplex model (Russell, 1980) has perhaps been the most prevalent dimensional model over the past quarter century. In this model the two dimensions are valence and arousal.
The third general point of view is the constructivist approach. Constructivist theories postulate that people’s emotions are the result of their interpretations of their immediate situations. These theories are often seen as the opposite of basic emotion theories, in that they assume that very little of people’s emotional experience is based on hard-wired biological systems. Instead, one’s emotional life depends substantially on one’s culture, one’s upbringing and life experiences, one’s language—emotions are more learned than innate (Barrett, 2006; Wierzbicka, 1999). What actually is seen as innate varies across constructivist theories. For Schachter and Singer (1962), the first modern constructivist theorists, only physiological arousal was innate. The emotional meaning of the arousal, whether joy or grief, fear or anger, was determined by the person’s interpretation of the immediate circumstances, for example, the emotions expressed by other people in the same situation. Current constructivist theories add valence to Schachter and Singer’s underlying physiological arousal. The person feels intensely bad (or mildly bad, or intensely good, or mildly good), but whether an intense negative feeling is experienced as anguish, terror, or rage depends on how the person interprets his or her situation (e.g., Barrett, 2006).
Constructivist theories say little about the kinds of interpretations of the environment that are most likely to produce or change emotions. The fourth general point of view, appraisal theories (see Ellsworth & Scherer, 2003, for a review), identify the interpretations (appraisals) of the environment that are most important in differentiating among emotional experiences. Environments differ in a multiplicity of ways—whether there are many people or few, whether it is daytime or nighttime, whether the setting is home or the workplace, and all of these can influence emotions, but appraisal theories specify the perceptions of the environment that are generally most likely to change a person’s emotional response.
Many legal writers (e.g., Fiss, 1990; McClurg, 1992) have claimed that the law’s domain is reason, and that emotion is a disruptive force that impairs the rational thought necessary for valid legal reasoning, and should be kept out. The law and emotions movement began as a rebellion against the idea that emotions could or should be excluded from legal thought (Maroney, 2006), but in some ways its proponents have continued to accept the dichotomy between reason and passion, or cognition and emotion. According to appraisal theorists, emotion and cognition are mostly inseparable. Few emotional experiences occur without cognition, and few thoughts are completely free of emotion. Emotions are combinations of appraisals (Ellsworth, 2013). A change in an appraisal is a change in emotion, and a change in emotion is a change in appraisal.
Although there are some differences among appraisal theorists, on the whole there is consensus about the important appraisals that differentiate emotions. These are
Novelty, or a change in the situation
Valence, whether the thought or event is good or bad
Agency, who or what caused what is happening
Certainty, about what is happening or what will follow
Control, how much power one has to influence what is happening
Goal conduciveness
Many theorists also include the moral appraisal of compatibility with personal or social values (Scherer, 1984), which may be especially important in the legal context. Although many scholars have picked up the term appraisal (and reappraisal) and use it much more broadly in talking about emotions, these appraisals are the ones that define appraisal theory.
Changes in events or thoughts create novelty and attract attention, very often the first stage of an emotional experience (Grandjean & Peters, 2011), and often the person immediately has a sense of whether this change is good or bad (valence). The person may feel more or less certain about the meaning of the events or their implications; fear and hope, for example, are highly uncertain emotions, while anger and joy are associated with higher certainty. Especially in the case of negative events, appraisals of agency—who or what caused the event—are particularly important. If some other person is the source of the problem, the perceiver feels angry; if the person sees herself as the cause, she feels ashamed or guilty; if the misfortune was caused by impersonal circumstances beyond anyone’s control (e.g., accident or disease) the perceiver feels sad. Whether what has happened facilitates or impedes the attainment of a goal and whether the person feels able to deal with it (control) also affect emotions. Finally, Scherer (1984) proposed a final, human appraisal of compatibility with social norms or one’s own self-concept. If a person causes something bad to happen he or she may feel regret, but if the behavior also violates a social or personal standard, shame or guilt may result. Emotions are combinations of these appraisals, with their associated physiological correlates and action tendencies. If an appraisal changes, the emotion changes in a predictable way. For example, if a person comes to feel more control over a threatening situation, fear may turn into a feeling of determination (control); if a person comes to feel that a horrible accident was actually caused by a person or a company, sorrow may turn to anger (agency); if a shadowy figure approaching on a dark street turns out to be a friend, fear may turn into relief (valence and certainty). Appraisal theories represent a considerable advance over other constructivist theories in that they specify the appraisals that generally differentiate emotional experience, regardless of the specific circumstances.
Law and Emotions Scholarship
There is a burgeoning field of research that argues that emotions are pervasive in legal decision making (Bandes & Blumenthal, 2012; Maroney, 2006, 2012). Although most of the empirical work has focused on jurors, there is evidence that the mental processes of judges and other legal actors are similar to those of jurors (Maroney & Gross, 2013; Rachlinski, 2012). Legal training protects against the errors of law common in jurors, but not against basic human and cultural biases or the influence of emotions. Likewise much of the early work focused on criminal rather than civil cases, but more recent work has remedied that imbalance (Vidmar & Hans, 2007). The studies reviewed in this article sometimes involve criminal and sometimes civil cases, sometimes jurors and sometimes other legal actors. Although in any given case we cannot be sure that the results generalize beyond the particular case and population studied, so far there is no evidence demonstrating that the mental processes involved are limited to one type of case or one type of actor, except for the data showing that jurors are relatively incompetent in understanding legal instructions (e.g., Ellsworth & Reifman, 2000).
Emotions can alter the way that legal information is processed, and an incidental mood can affect jurors’ decision processes. The interaction of mood and stereotype activation can sway juror decisions. In one study participants were prompted to feel either happy or neutral and then were shown either stereotypic or nonstereotypic case summaries. Jurors in a happy mood were more affected by stereotypes than those in the neutral mood (Bodenhausen, Kramer, & Susser, 1994). The authors attribute this to the tendency of happy people to avoid effortful analytic thinking (e.g., questioning the stereotype) unless the task is directly relevant to their well-being. In addition, Semmler and Brewer (2002) examined the role of emotions on jurors’ ability to attend to details of evidence presented in a trial. They induced a sad or neutral mood through the emotion displayed by a witness. After watching the testimony, participants rated how guilty they thought the defendant was and described how they reached their decision. Sad subjects detected more inconsistencies in the testimony, reflecting more careful and detailed processing of the evidence. Thus jurors’ moods can have a significant influence on the way that they process trial information.
Emotions can influence not only the way information is processed, but also the verdict itself. In one study researchers discovered that gruesome pictures influenced jurors’ decision-making process (Bright & Goodman-Delahunty, 2006). Jurors who saw the gruesome photographs reported feeling angrier at the defendant than those who were only told about them, and also reported weighing the images more heavily in their decision process. The defendant’s emotion can also play a persuasive role in juror decisions. Corwin, Cramer, Griffin, and Brodsky (2012) examined the role of a defendant’s verbal and nonverbal expressions of remorse. Mock jurors viewed a defendant who expressed remorse either verbally or nonverbally. Participants rated the defendant who displayed nonverbal cues as more remorseful than the one who merely said he felt remorse (Corwin et al., 2012), perhaps because they believe that nonverbal cues are more accurate indicators of true emotion (see Bandes, 2016).
Thus, emotions can influence decisions made in the courtroom. Law and emotions scholars have also considered ways in which legal decision makers might regulate these emotions. Emotion regulation is the process by which we influence and control the expression of our emotions, as well as our actual emotional experience (Gross, 1998b, 2002). Scholarship on the circumstances in which emotion regulation promotes better or worse decisions in the legal context is practically nonexistent, and is an important avenue for future research, but there is considerable research on the different techniques and opportunities that can be used to regulate emotions (Gross, 1998a).
Not all strategies are equally effective or appropriate, and different strategies may be more or less effective at different points during an emotional episode. Reappraisal, a cognitive reframing of the emotions being experienced, has been shown to be more effective at managing negative emotions than suppression, an attempt to inhibit the emotions or their expression (Gross, 1998a, 1998b, 2002). Research on reappraisal suggests that people who engage in reappraisal show higher levels of well-being than those who consistently try to suppress their emotions (Gross, 1998b, 2002). Recently legal scholarship has advocated for a deeper understanding and use of emotion regulation by legal actors, particularly judges. For example, Maroney and Gross (2013) argue that reappraisal is the most promising of the regulation techniques for judges in emotional situations. Reappraisal may allow judges to both manage the emotionality of the situation by determining the appropriateness of the emotions they are feeling and to change their appraisals to modify any inappropriate emotional response they feel.
Most of the research on emotion in the legal realm has focused on the valence or the intensity of emotion experienced (Douglas, Lyon, & Ogloff, 1997; Lerner, Li, Valdesolo, & Kassam, 2015). The emphasis is on ways in which the judge or juror might diminish general negative affect or reduce the intensity of any emotional experience. While these effects are important to understanding how emotions influence legal decisions, they do not cover the full range of possible emotional changes. So far there is very little research that addresses changes from one particular emotional state to another, or which specific reappraisals a judge or juror might use in different emotional situations. In general “reappraisal,” as applied to legal contexts, is not derived from appraisal theory and is far less differentiated, referring rather vaguely to “thinking differently” about events. Although very little empirical work has examined appraisal theory in the legal setting, recent theoretical work has argued for its relevance. Feigenson and Park (2013; and see Feigenson, 2016) have drawn upon appraisal theory to understand one potential pathway through which emotions can influence blame and punishment, further citing the importance of understanding how shifting between different appraisals and emotions influences legal decisions. In the following sections we discuss the applicability of appraisal theory to legal decision making in greater depth.
Appraisal Theory in Legal Decision Making
Early models of jury decision making often assumed a sequential linear process in which each new piece of evidence shifted the decision maker’s attitude toward the prosecution (or plaintiff) or towards the defendant (see Hastie, 1993, for a review). After the final piece of evidence, if the decision maker was on the plaintiff side of the neutral point, he or she would find the defendant liable, and if on the defendant’s side, not liable. In criminal cases, the reasonable doubt standard would require a much greater proprosecution distance between the decision maker’s final attitude and the neutral point in order to justify a guilty verdict.
Since Pennington and Hastie’s landmark work (1992), the “story model” has become the most widely accepted model of juror decision making, replacing the earlier linear models. New pieces of information do not just move a person back and forth along a continuum from guilty to innocent, but instead can change the person’s whole conception of what the case is about. Jurors and other legal decision makers are trying to create a coherent story from the facts presented to them, drawing on their own experience in the world as well as the evidence to infer the causal relations among pieces of information, the beliefs and motives of the actors, and often the basic theme of the story. This process occurs in judges and legal scholars as well, and often major legal decisions involve the definition of what the story is about. When people protest outside an abortion clinic is the story about harassment or free speech?
Different patterns of appraisal of events create stories that make sense of the events in different ways, and are important in defining the emotional meaning of the story. Appraisals such as agency and goal conduciveness correspond to basic plot elements. Trial and appellate lawyers were constructing stories and suggesting or changing appraisals of the evidence long before the story model or appraisal theories were proposed by psychologists. Although attorneys do try to amplify or diminish the intensity of jurors’ emotions, for example through the use of bloody pictures or day-in-the-life presentations or by distracting jurors from repugnant facts by focusing on legal arguments, their use of strategies for creating and changing appraisals goes far beyond efforts to change emotional intensity.
The appraisals identified in appraisal theories play a key role in attorney strategies and in the perceptions of judges and jurors:
Novelty
Novelty attracts attention. If the decision maker is not paying attention, the most cogent evidence will be ineffective. Attorneys make all kinds of efforts to excite decision makers’ attention—by introducing elements of surprise and disconfirming expectations, by using flashy language or dramatic exhibits, and by many other techniques. They try to train their expert witnesses to liven up their scientific evidence with vivid language and examples. Although it is rarely possible, many attorneys believe that bringing in a brand new unexpected piece of evidence or a surprise witness can give them a huge advantage. Appellate lawyers also work hard to convince the decision maker that what they are saying is new and worth attending to, not the same old arguments that are so familiar to the judge. No matter how well-crafted the story is, or how convincing the evidence, it is essential that the decision maker pay attention.
Valence
Valence is fundamental to all theories of emotion and the appraisal of valence often occurs almost simultaneously with attention (see Zajonc, 1980). There is often not much that an attorney can do to change the valence of a story. A wrong has been done, and at the outset of a trial, typically both prosecutors and plaintiff’s attorneys have a coherent story high in negative valence. Finding a way to change this valence from negative to positive is almost never a possibility for the defense lawyer, and this may be one reason that scholars of law and emotion have so often focused on intensity. Keeping the gruesome pictures out of evidence is a strategy for reducing the horror jurors feel about the injury.
Another strategy is to induce jurors to reappraise the horrifying evidence by taking an unemotional analytical stance towards it (Lazarus & Alfert, 1964), examining it for distance, timing, or other “objective” features. This was the technique used by the defense in the Rodney King trial, where the beating had been recorded on a videotape that the prosecution used to demonstrate the savagery of the police attack. This tape was regarded as a powerful piece of prosecution evidence. The defense showed the videotape over and over again, instructing the jurors to focus on one factual detail after another, on the theory that the film would lose its shock value over the course of numerous repetitions during which the jurors’ attention was directed to unemotional details.
An alternative strategy is to accept the fact that the decision maker’s emotions will be negative but to try to redirect them towards someone else. This is often done by attempting to influence the appraisal of agency.
Agency
In appraisal theory the appraisal of agency is particularly important in distinguishing among different negative emotions. When we believe that another human being has caused harm, we feel angry (human agency appraisal). When the cause of the harm is a force of nature, chance, or some combination of circumstances beyond anyone’s control, we feel sorrow or resignation or some other emotion that does not involve blame (situational agency).
The prosecutor or plaintiff’s attorney’s task is to convince the decision maker that the defendant is responsible. According to appraisal theory this perception of responsibility is intimately related to anger. When available, the strategy of changing the decision maker’s appraisal of agency is commonly used by the defense: in criminal cases the defendant was under duress or “in the wrong place at the wrong time” (situational agency), or was coerced, or the real culprit was someone else altogether (human agency, but a different person). In civil cases the defense often tries to shift the attribution of agency to the plaintiff. If the defense attorney is successful in shifting the blame to circumstances the anger is defused. The second strategy, in which the emotion remains the same (anger) but the target of emotion is changed, may be more effective, because it can take advantage of the preexisting emotion. According to appraisal theories, the appraisals associated with that emotion are primed, so the perceiver is more likely to appraise new information in the same way. For example, an angry person is more likely to see new events as negative and as caused by a human agent (Keltner, Ellsworth, & Edwards, 1993; Lerner & Keltner, 2000). The defense attorney can take advantage of the preexisting appraisals associated with anger and switch them to a new human agent, who may be seen as even more blameworthy because he is also seen as falsely implicating the defendant. Of course, this strategy requires that there actually be a plausible alternative culprit, so it is not often available, but when it is, it can be extremely effective. In either case, changing the attribution of agency changes the attribution of guilt, not only on legal grounds, but also emotionally.
Certainty
The prosecutor in particular must instill a sense of certainty in the decision maker, since it is the prosecutor’s job to prove guilt beyond a reasonable doubt. Creating anger not only facilitates attributions of blame, but also a sense of certainty, since anger is an emotion typically high in certainty appraisals (Smith & Ellsworth, 1985). When the defense has no plausible alternative story, a common fallback strategy is to create a sense of uncertainty in the decision maker, by raising questions about as many elements of the opposing evidence as possible, highlighting discrepancies in the testimony of witnesses, and bringing in experts to question the conclusions of the opposing experts. Undermining the decision maker’s confidence and creating a feeling of doubt may result in an acquittal or conviction of a lesser included offense. In civil cases, raising doubts about the plaintiff’s story may change the perception of the preponderance of evidence and thus the verdict.
Often when jurors have reached a stalemate in their interpretation of the facts, they turn to the law to help them reach a verdict, and although their ability to understand the law and to apply it correctly is generally quite low, they do remember the phrase “beyond a reasonable doubt,” and when reminded of this standard, their uncertainty inclines them towards the defense (Ellsworth, 1989; Ellsworth & Reifman, 2000).
Control
The appraisal of control can come in when the defense relies on defenses such as “irresistible impulse” or “heat of passion”—when the defendant had no premeditation but was swept away by urges that he or she could not control. Sometimes this is clearly associated with mental disorders, such as kleptomania, sometimes, as in heat of passion arguments, it can reduce a verdict from murder to manslaughter. At times it is used to prove some sort of diminished capacity, reducing but not eliminating guilt.
In presenting mitigation evidence at the penalty phase of a capital trial, experts often present detailed evidence about the physical or emotional abuse the defendant endured as an infant and child, abuse that eventually resulted in a seriously compromised emotional life, and inability to control his or her behavior. Experts in these cases may also be able to redirect the jurors’ anger towards the abusers or the mental health system that failed to intervene in the case of a suffering child in time to prevent permanent damage.
The appraisal of control also sometimes comes into play with regard to the jury’s own sense of control, in which case it is closely related to appraisals of agency and responsibility. In capital cases, prosecutors have sometimes tried to persuade the jurors that they were not really deciding whether a person should be killed or allowed to live, but only making a recommendation to some higher authority, such as a judge or panel of judges, who actually have control over the decision.
Normative Significance
Finally, for humans, emotions and morality are clearly associated. People appraise situations, their own behavior, and other people’s behavior in terms of their morality—their conformity to social norms or their own personal norms (Scherer, 1984). While moral and legal standards are by no means identical, it is usually useful for the prosecutor or plaintiff to frame the defendant’s act as immoral, tapping into the disgust, certainty, and righteous feeling that people feel when confronted with examples of immorality. An act that is seen as immoral is seen as far less excusable than an act that is merely harmful (Greene & Haidt, 2002). Thus creating appraisals of immorality is a particularly valuable strategy for the prosecutor or plaintiff, and a particularly difficult one for the defense to counter. The defense sometimes tries to find examples of immoral police or plaintiff conduct in the hope of enlisting the powerful moral emotions on its own side.
Summary
Appraisal theories provide substance, detail, and practical applications to the vague idea of reappraisal. In many discussions, reappraisal is recommended but not defined, with scholars suggesting that emotional responses would be changed if a decision maker could be induced to “think differently,” but without providing any information about the kinds of changes in thoughts that might be most likely to induce changes in emotion. Often the implied message is that reappraisal simply means thinking less emotionally. Appraisal theories specify the important dimensions of situational interpretation that lead to emotions in the first place, with the clear message that changing one of these appraisals—novelty, valence, agency, certainty, control, or normative significance—will be more effective in changing emotional responses than changing other situational perceptions. Many of the insights from appraisal theory are familiar to trial attorneys, whether or not they are consciously or systematically formulated. The prosecutor or plaintiff’s attorney has a story of severe harm and immorality (valence, normative significance) intentionally inflicted by a particular human being (agency, control), and there is no question that this is what happened (certainty). The defense will try to introduce other agents, or uncertainty, or lack of control, or sometimes other appraisals, creating an alternative story, or at least casting doubt on the story the prosecutor or plaintiff has tried to present.
Footnotes
Declaration of Conflicting Interests
None declared.