Legal & DebateNEUTRAL — Rhetoric

Sympathy-Versus-Law Instruction

What it is

The standard jury instruction that the verdict must rest on the evidence and the law as given, not on sympathy, prejudice, or passion, and the advocacy on both sides of it: reminding jurors of the instruction to blunt an emotional case, or reminding them that the law does not require them to ignore what they saw.

How it works

The instruction is the system's built-in counter to emotional appeal. It works imperfectly, and the research on why is instructive. Steblay and colleagues' 2006 meta-analysis found that instructions to disregard inadmissible evidence reduced but did not eliminate its effect, and Kassin and Sommers (1997) found that jurors set aside evidence they are told is unreliable but keep using evidence excluded on procedural grounds. Wistrich, Guthrie, and Rachlinski (2005) found that judges themselves, ruling on evidence they had been shown, could not fully set it aside. Kalven and Zeisel's finding that judge and jury agreed in about three-quarters of criminal cases, and that most disagreements ran toward jury leniency, suggests that "sympathy" in jury verdicts is often a considered judgment about the facts and the law rather than a failure. Advocates use the instruction as a lever: the defense reads it back to inoculate against a sympathetic plaintiff or victim; the plaintiff argues that sympathy is not the same as compensation, and that awarding what the law provides for a proved injury is not being swayed by sympathy. Both are legitimate readings of the same sentence.

Real-world examples

  • •Pattern criminal instructions in the federal circuits tell jurors that they must not be influenced by sympathy, bias, or prejudice and must decide on the evidence and the law; civil pattern instructions add that the wealth or poverty of a party is not a basis for decision.
  • •Kalven and Zeisel (1966) compared jury verdicts in roughly 3,500 criminal trials with what the presiding judge would have decided; they agreed in about 78 percent of cases, and where they differed the jury was usually more lenient, often on grounds the judge recognized as a defensible view of the facts.
  • •Krulewitch v. United States (1949): Justice Jackson's concurrence described the assumption that instructions cure prejudice as a fiction every practicing lawyer recognizes, a passage still quoted when courts decide whether an instruction suffices or a mistrial is required.
  • •Bruton v. United States (1968) is the Supreme Court's acknowledgment of the limit: where a codefendant's confession implicates the defendant, an instruction to consider it only against the confessor is not enough, and severance or redaction is required.

Ethical guidelines

  • ●Reminding jurors of the instruction is proper argument for either side; misstating it (telling jurors they must ignore the plaintiff's pain, or that sympathy is a permissible basis for the verdict) is not.
  • ●The instruction restrains advocates as much as jurors: an argument whose only function is to generate sympathy or hostility invites the instruction and the objection that goes with it.
  • ●Courts should prefer instructions that explain the reason for excluding or limiting evidence, because the research shows bare admonitions are weak; advocates may ask for that form.
  • ●Educational; rules vary by jurisdiction; not legal advice.

How to defend against it

  • ►Jurors: separate the two questions the instruction protects, what happened and what the law provides for it. Sympathy is a natural response to the first; the second is answered by the elements and the damages categories, and a proved injury deserves what the law provides whether or not you feel sympathy.
  • ►Jurors: when you notice that something you are relying on was struck or never admitted, say so aloud in deliberation; naming the source of the information is what makes the instruction work.
  • ►Opposing advocates: ask the judge for an instruction that gives the reason for any exclusion, argue the instruction affirmatively in closing rather than treating it as boilerplate, and where the prejudice is severe, remember that Bruton means an instruction is not always a cure.
  • ►Witnesses: your job is to make the facts clear, not to generate sympathy; testimony that reads as performance triggers the instruction against you, while plain, specific description of what happened lets jurors reach their own response.

From the Defense Playbook

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. Steblay, N., Hosch, H. M., Culhane, S. E., & McWethy, A. (2006). The impact on juror verdicts of judicial instruction to disregard inadmissible evidence: A meta-analysis. Law and Human Behavior, 30(4), 469-492
    Instructions to disregard reduce but do not eliminate the influence of inadmissible evidence.
  2. Kassin, S. M., & Sommers, S. R. (1997). Inadmissible testimony, instructions to disregard, and the jury: Substantive versus procedural considerations. Personality and Social Psychology Bulletin, 23(10), 1046-1054
    Jurors disregard evidence described as unreliable but continue to use evidence excluded on procedural grounds.
  3. Wistrich, A. J., Guthrie, C., & Rachlinski, J. J. (2005). Can judges ignore inadmissible information? The difficulty of deliberately disregarding. University of Pennsylvania Law Review, 153(4), 1251-1345
    Experiments with sitting judges showing that inadmissible information influences their rulings.
  4. Kalven, H., Jr., & Zeisel, H. (1966). The American Jury. Little, Brown
    Judge-jury agreement in about 78 percent of criminal trials, with disagreements running mostly toward jury leniency.
  5. Supreme Court of the United States (1968). Bruton v. United States, 391 U.S. 123. United States Reports
    A limiting instruction is an inadequate substitute for the right of confrontation where a codefendant's confession implicates the defendant.
Last reviewed
Suggest a correction

Detect Sympathy-Versus-Law Instruction in any text

Paste any message, email, or article into our free Manipulation Detector to see if Sympathy-Versus-Law Instruction or other techniques are being used on you.

Try the Detector FreeCreate Free Account