Legal & DebateMANIPULATIVE

Appeal to Passion or Prejudice

What it is

Argument or evidence designed to make the fact-finder decide on anger, fear, disgust, or group hostility rather than on proof: inflammatory characterizations, appeals to race, religion, nationality, or wealth, and "send a message" pleas that turn the verdict into a referendum on something other than the case.

How it works

Trials are structured to make emotion answer to evidence, and this tactic reverses the order. Anger narrows attention and increases certainty; disgust and fear shift judgments of culpability; group-based appeals recruit in-group loyalty against an out-group defendant or plaintiff. The rules attack it at two points. Federal Rule of Evidence 403 lets a judge exclude evidence whose probative value is substantially outweighed by the danger of unfair prejudice, which the advisory committee note defines as an undue tendency to suggest decision on an improper basis, commonly an emotional one. And the law of closing argument forbids appeals to prejudice, with Viereck v. United States (1943) and Darden v. Wainwright (1986) as reference points: a wartime prosecutor's call to jurors as protectors of the nation, and a closing that called the defendant an animal who should be kept on a leash. Sunstein and colleagues found that jurors' outrage is consistent across people while the dollar figures it produces are wildly unpredictable, which is why passion in the jury room translates into arbitrary verdicts rather than severe ones.

Real-world examples

  • •Viereck v. United States (1943): the prosecutor closed by telling wartime jurors that the American people were relying on them for protection; the Supreme Court condemned the appeal as an invitation to decide on passion rather than evidence.
  • •Darden v. Wainwright (1986): the prosecutor called the defendant an animal who should not be let out without a leash; the Court found the argument improper, though it upheld the conviction because the trial as a whole remained fair.
  • •Buck v. Davis (2017): an expert told a Texas capital sentencing jury that the defendant's race made him statistically more likely to be dangerous; the Supreme Court granted relief, treating the injection of race into the sentencing decision as a harm the law cannot tolerate.
  • •"Send a message" arguments cut across politics: prosecutors ask juries to send a message to drug dealers, plaintiffs' lawyers ask them to send a message to corporations, and appellate courts in many states treat both as improper because the verdict is supposed to be about this case.
  • •Class-based appeals ("a wealthy corporation with an army of lawyers"; "a man who has never worked a day in his life") are routinely objected to as invitations to decide on wealth or status rather than on the evidence.

Ethical guidelines

  • ●Emotion that arises from admissible evidence is not the target of the rule; a jury may be moved by what a witness suffered. The tactic is argument or evidence whose purpose is to inflame rather than to prove.
  • ●Appeals to race, religion, ethnicity, nationality, sexual orientation, or wealth as grounds for decision are improper in every US jurisdiction and, from a prosecutor, may violate due process; Model Rule 8.4(d) treats conduct prejudicial to the administration of justice as misconduct.
  • ●Inflammatory characterizations ("animal", "monster") and calls to protect the community or send a message are the recurring forms; Rule 403 objections and motions in limine exist to keep them out before they are heard.
  • ●Educational; rules vary by jurisdiction; not legal advice.

How to defend against it

  • ►Jurors: name the emotion you are feeling and ask what evidence produced it; anger at a characterization the lawyer supplied is not the same as anger at a fact a witness proved.
  • ►Jurors: when asked to send a message, remember that the instructions limit you to this case and these parties; the verdict form has no line for a message.
  • ►Jurors: decide first how the evidence bears on each element or damages category in the instructions, and only then consider the whole; a number chosen to express outrage is the pattern the punitive-damages research found to be arbitrary.
  • ►Opposing advocates: object contemporaneously and ask for a curative instruction; where the appeal is to race or another protected characteristic, move for a mistrial and make the record, because appellate review of these arguments turns on whether they were preserved.
  • ►Witnesses and parties: do not answer an inflammatory characterization with one of your own; a calm correction of the fact underneath ("I was not fleeing, I was going to work") is what the jury remembers.

From the Defense Playbook

Recognize Improper Argumentminutes

Learn the short list of things a lawyer is not supposed to say to a jury (put yourself in the victim's place, take my word for it, send a message, the other side has to prove its innocence) so that, as a juror or an observer, you can notice them and set them aside. (Educational; the rules vary by jurisdiction.)

Sympathy-versus-Law Self-Instructionminutes

When you have to apply a rule to a person whose story moves you, give yourself the instruction judges give juries: acknowledge the feeling, then decide each required element on the evidence, in writing, and check the result by imagining the same facts with a different person. (Educational; not legal advice.)

Every playbook entry states how strong its evidence is and when not to use it. Browse the full playbook.

References

  1. Federal Rules of Evidence (2011). Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons. Federal Rules of Evidence (restyled 2011), Legal Information Institute · link
    Exclusion of evidence whose probative value is substantially outweighed by the danger of unfair prejudice.
  2. Supreme Court of the United States (1943). Viereck v. United States, 318 U.S. 236. United States Reports
    Condemnation of a wartime prosecutor's closing appeal to jurors' patriotic passion.
  3. Supreme Court of the United States (1986). Darden v. Wainwright, 477 U.S. 168. United States Reports
    Inflammatory characterization of the defendant held improper; the due-process test asks whether the argument so infected the trial with unfairness as to deny due process.
  4. Sunstein, C. R., Hastie, R., Payne, J. W., Schkade, D. A., & Viscusi, W. K. (2002). Punitive Damages: How Juries Decide. University of Chicago Press
    Shared outrage judgments but erratic dollar awards; emotion produces arbitrary rather than merely severe verdicts.
  5. Supreme Court of the United States (2017). Buck v. Davis, 580 U.S. 100. United States Reports
    Relief granted where race was offered as a predictor of future dangerousness at capital sentencing.
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