Shifting the Male Gaze of Evidence

A particular species of rationalism based on Bayes' Theorem has become fashionable in many fields, including evidence law.15 It contends that people, and thus jurors, do and should combine new information in logically consistent ways, repeatedly updating their prior probability assessments.16 There is little to quibble with this as an aspirational model for jury decisionmaking.17 The problem is that Bayesian models typically rest on the same notions of rationality that discount the epistemic value of emotions and view them as "illogical. "27 Imagine in any other context trying to decide cases about medical autonomy, civil rights, murder, or child abuse completely "free of emotion." [...]justifications for Rule 403 hammer home the point that emotional evidence is "peripheral, somehow not at all relevant to the case,"33 and the opposite of intellect34 and impartiality.35 There are thousands of appellate cases that admit or exclude emotional evidence by simply quoting this language from the ACN with scant additional justification and without any real balancing of the probative value against its prejudicial effect.36 This leaves future parties to guess as to why the evidence was found to be within the trial court's discretion to exclude as too prejudicial. [...]in Old Chief v. United States, a rare Supreme Court case that addressed Rule 403, the Supreme Court reminded lower courts that it is important to allow prosecutors to tell a "colorful story with descriptive richness.