Emotions in the Evaluation of Legal Risk

The risks taken into account in legal decision-mak- ing are, often, matters of life and death, but the way we think about risk is flawed. This is a problem. The dominant account of how emotions are involved in risky decision-making follows the standard probabilistic account of risk. If we entertain a modal ac- count of risk, however, this changes the way in which a host of legal actors—members of the jury, judges, defendants, lawyers, legislators, regulators, and police—ought to think about how emotions impact risk evaluation. In what follows, I examine what taking a modal account of risk would mean for the way we under- stand emotions in the evaluation of legal risk: specifically, the risk of wrongful conviction.

The present chapter draws on contemporary research in the epistemology of risk to examine how emotions can influence the evaluation of legal risk. I first review a distinction between two understandings of risk—the probabilistic account and the modal account—and demonstrate how the probabilistic account is in- complete. Next, I highlight how emotion can be seen to mediate decision-making in a series of empirical studies on the assessment of gruesome photographic evidence. I then analyse the standard accounts of how emotions play a role in risk assessment, which build upon a probabilistic account of risk. A modal account of risk and emotion is then offered, demonstrating the ways in which emotions can contribute to the evaluation of risk understood modally. Finally, I consider what legal practices and structures need to be refined or abandoned in order to facilitate the condi- tions most conducive to harnessing the evaluative power of emo- tions in legal decision-making.