The Ethics of Pathos, Part I

 Posted on December 02,2009 in Uncategorized

Over at Overlawyered Walter Olson asks, "Should lawyers trying cases make an appeal to jurors' ‘reptile brains'?"

In writing about Reptile Trials in Lizards Don't Laugh, I hadn't even considered this question.

If Walter's were a practical "should" question-"will it sometimes benefit clients for lawyers trying cases to appeal to jurors' reptile brains?"-then the answer would be "yes, absolutely." But that's not the tenor of Walter's question. Considering his site's description, I think it's fair to say that Walter's question is an ethical one. The ethical question: "is it right for lawyers to appeal to jurors' reptile brains?" has nothing to do with the procedural or disciplinary rules (which don't forbid a Reptile Trial), and everything to do with our own personal moral judgments.

The art of persuasion is not a new thing; since ancient Greece, advocates have been using pathos, as well as ethos and logos, to move audiences to action. Prosecutors have been appealing to jurors' reptile brains since before anyone knew that jurors had reptile brains. They called it "make people afraid," or, if they weren't that self-aware, just did it the way that their supervisors taught them.

If we ask the ethical question about Reptile Trials, we should ask the same question about all other emotional appeals to juries-a Reptile Trial is just a more scientific application of pathos to the facts of the case.

Is there any serious contention that it is unethical to appeal to juries with anything other than reasoning (logos)? University of Maine at Presque Isle Professor Emeritus of Communication Ken Petress asserts that persuasion using pathos alone is unethical:

Using emotions to persuade others is ethical as long as the persuader allows, encourages, and facilitates rational decision-making on the part of the persuadee.Short-circuiting rationality on the part of those being persuaded by the sole use of or hyper use of emotional appeals is unethical.

The quote is from a PowerPoint presentation; Professor Petress doesn't elaborate further. But "short-circuiting rationality" is a a fair description of the goal of a Lizard Trial, and it's good to know that at least one person considering the problem of persuasion has concluded that doing so is unethical.

Investigation of discussions of subliminal advertising from the 50s would probably yield similar opinions. The idea of persuasion as a hard science is frightening to people who aren't students of the science, but "frightening" is not necessarily unethical.

If Petress is wrong-if it's ethical to short-circuit a jury's rationality with pathos-do the analysis and science behind a Reptile Trial render it unethical in a way that the use of pathos in persuasion has not been considered unethical for two thousand years?

In a Reptile Trial (or the simian trial that I propose as an alternative) the lawyer considers the human brain as a physical object that follows certain rules, and then uses those rules to her advantage. Does the application of neuroscientific research finally reveal some ethical problem with the use of pathos that was never noticed during the millennia when persuasion was a softer science?

I would love for cases to be decided by jurors using their mammalian and simian brains. There's a reason lizards have never written a halfway decent novel: no compassion, and no imagination. Nine times out of ten it would make my job as a criminal-defense lawyer easier if prosecutors couldn't try Reptile Trials, and I would have to spend a lot less time revealing the man behind the curtain to juries.

Still, I tend to disagree with those who would say, in the context of a jury trial, that using science to persuade, as in a Reptile Trial, is unethical. I'll discuss why in my next post.