Author ORCID Identifier
Document Type
Article
Publication Date
2023
Abstract
In this article I target the altar at which many of us worship—the pursuit of rationality. For evidence purposes, rationality is defined as decisions that are reasonable, objective, inductive, and free from the bias of emotion. This view of rationality is deeply embedded in evidence scholarship and practice. It is also reflected in evidence rules like FRE 403, which treat emotional testimony as unfairly prejudicial simply because it is emotional. The anti-emotion view of rationality reflects the thinking of Western philosophical giants. Plato, Hobbes, Descartes, and Bacon all thought that men should strive for rationality by suppressing their emotions, because emotions were associated with femininity and “the lower races.” As I will explain, this view of rationality has engendered patriarchy by taking a particular male perspective and equating it with something that is objective, superior and innate. The thesis of this article is that emotions and reasons are not dichotomous, but rather functionally and biologically interdependent. Emotions can also lead to more just decisions, by allowing judges and juries to evaluate the legal and moral relevance of emotions.
To advance these claims, the article will proceed in three brief parts. In the first part, I will explain how modern evidence practice incorrectly places emotion as at odds with reason. I will use representative FRE 403 cases to reveal how emotional evidence is assumed to be unfairly prejudicial, even when it confers independent probative value. In the second part, I will explain how rationality was conceptually gendered from the start, and continues to advance a male gaze that reinforces gender norms while silencing the oppressed. In this third part, I will describe how emotions are neither monolithic nor universally corrupting of reason. Indeed, well-vetted findings from social psychology and neuroscience demonstrate that emotional processes are necessary for optimizing cognitive processes like perception, memory, evaluation, and judgment. The view of emotion in evidence scholarship and practice is far too monolithic. Just as thoughts can be biasing or corrupting, so too can emotions. And just as thoughts are critical for decision-making, so too are emotions.
I hope you will enjoy reimagining what the rules could and should be, if they were written today—with a less gendered, more nuanced, and accurate view of the value of emotions to decision-making.
Recommended Citation
Teneille R. Brown, Shifting the Male Gaze of Evidence, 76 Vand. L. Rev. 1903 (2023)
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