Tears on the stand in Pistorius trial: Provoking sympathy or skepticism?

Over the weekend, Sarah Lyall of the New York Times posted an interesting story on the Oscar Pistorius murder trial in Pretoria. It seems the famous South African runner with prosthetic legs has been something of a basket case while testifying in his own defense. “He retched. He cried, then sobbed, then grew hysterical,” writes Lyall. “It got so bad that at times the judge Thokozile Matilda Masipa, had to adjourn the court while Mr. Pistorius regained his equilibrium.”

What effect might this outpouring have on the outcome of the trial? It’s impossible to read the mind of the decision maker – in this case, the judge, as South Africa doesn’t have a jury system like ours – but I am generally wary of expressing emotions so ardently in court. And not because the emotional content of argument is unimportant. On the contrary, because emotion is so crucial, it must be handled with care.

I never forget this Cicero quote: “Mankind makes far more determinations through hatred, or love, or desire, or anger, or grief, or joy, or hope, or fear, or error, or some other affection of mind, than from regard to truth, or any settled maxim, or principle of right, or judicial form, or adherence to the laws.”

Rhetoricians consistently agree that emotion plays an essential role in persuasion, and psychologists teach that people usually make decisions by emotion and then validate them by logic.

Even judges who must make logical decisions, are no automatons who merely plug facts into a legal framework. Indeed, the presumed dichotomy between reason and emotions is in some respects misleading. Emotion, in fact, provides motive and meaning for even our most “rational” decisions.

That’s why I encourage lawyers to consider the emotional content of their overall cases. At every stage of the trial, emotion plays a role. But if emotion is overdone – if quiet tears become sobs, if frustration blows into a tantrum – listeners may find it difficult to relate.

In the Pistorius case, according to Lyall’s story, observers of the trial are wondering whether the defendant is being sincere or acting. And if his anguish on the stand is sincere, what is its source?

Ideally, when a defendant takes the stand, the emotional content of his claims will support the logic of the overall argument. In this case, his torment seems to be eclipsing the argument altogether and causing people to question his sincerity.

To some extent, judges and juries will question the sincerity of all witnesses. That’s part of the job. Still, defense lawyers should strive to present testimony that compels the audience to set aside its skepticism, at least for awhile.