The New York Times has an interesting editorial today in which it criticizes the Supreme Court’s decision this week to uphold a murder conviction in a case where members of the victim’s family wore buttons displaying the victim’s picture during the trial. The editorial argues that the buttons “were essentially an argument that the deceased was an innocent victim” in the fight that led to his death. Well, I’m not sure how that follows, unless the words “innocent victim” or the equivalent were displayed across the button. I think it is far more likely that the jury saw the buttons as a sign that a family was grieving, and not as a comment on the defendant’s guilt or innocence. In general, I think issues surrounding displays of emotion by the victim’s family in homicide trials are more subtle than the editorial suggests. Of course the focus of the trial rightly needs to be on the defendant’s guilt or innocence, but I am not sure that means the trial needs to be entirely sanitized of emotion. When I was prosecuting, for example, we had one judge who routinely instructed witnesses who were related to the victim that they had better not cry during their testimony. Instructions like these, or concerns over buttons that do no more than display a photo, seem to me to underestimate the the intelligence and commitment of jurors. I at least have never encountered a juror who seemed to think it would be appropriate to convict an innocent man just to ease a devastated mother’s pain — they recognize that would do nothing to help the family at all. Jurors seem to me quite capable of both empathizing with a family’s pain and at the same time putting those sympathies aside in order to focus on the evidence. Any other thoughts?