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December 12, 2013

"Remorse and Demeanor in the Courtroom: Cognitive Science and the Evaluation of Contrition"

The title of this post is the title of this notable new paper by Susan Bandes now available via SSRN. Here is the abstract:

Although there is a rich legal literature on whether remorse should play a role in the criminal justice system, there is far less discussion of how remorse can be evaluated in the legal context — if indeed it can.  There is ample evidence that perceptions of remorse play a powerful role in criminal cases.  Whether a defendant is regarded as appropriately remorseful is often a determinative factor in criminal sentencing, including capital sentencing.  And in capital cases, in which the defendant rarely testifies, the evaluation of remorse may be based entirely on the facial expression and body language of a defendant sitting silently in the courtroom.  Yet the most basic questions about the evaluation of remorse have received little attention: what is it precisely that is being evaluated, and how adept are decision makers at evaluating it?  What criteria are being applied and with what level of consistency and fairness?

There is evidence that the evaluation of remorse is particularly difficult across cultural, ethnic or racial lines, or where juvenile or mentally impaired defendants are being judged. But this troubling evidence leads to several larger questions.  Is remorse (or the lack of remorse) something that can ever be accurately evaluated in a courtroom?  If remorse is not susceptible to courtroom evaluation, is it feasible to bar decision-makers from considering it?  And if evaluation of remorse is a permanent feature of the criminal justice system, what can be done to improve upon an evaluative process that is demonstrably riddled with error and bias?

The article considers these questions in light of findings in three flourishing areas of cognitive science: the field of interpretation of facial expressions and “micro” expressions (expressions difficult for the untrained eye to recognize), the study of the dynamics of empathy and empathic accuracy, and the study of implicit bias.

December 12, 2013 at 08:18 AM | Permalink

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Comments

Below by Docile Jim Brady – 43209 , “student” of the law without portfolio since about 1954 or so ☺
All rights reserved — All wrongs denied


¿ What if conduct was not criminal and a rogue tyrannical judge “amended” the statute to sanction the defendant for a pretended offense ?

¿ How could a defendant reasonably be expected to show remorse for such conduct and such a conviction ?

He or she may be devoting all cognitive energy to suppress a tyrannicide protocol ☺
Grenade throwing in open court ala Operation Anthropoid would put innocents at risk of injury or death — a serious Karma violation.

⌠ “Tyrannical governments had immemorially utilized dictatorial criminal procedure and punishment to make scapegoats of the weak, or of helpless political, religious, or racial minorities and those who differed, who would not conform and who resisted tyranny. The instruments of such governments were, in the main, two. Conduct, innocent when engaged in, was subsequently made by fiat criminally punishable without legislation. And a liberty-loving people won the principle that criminal punishments could not be inflicted save for that which proper legislative action had already, by ‘the law of the land,’ forbidden when done.” ⌡

Mr. Justice Black , Chambers v. Florida, 309 U.S. 227 (12 February 1940)

Posted by: Just Plain Jim (Just Another Guy) | Dec 12, 2013 10:23:57 AM

Those who were contrite at the Nuremberg Trials were accorded some leniency. When we hung some of the defendants out to dry, so to speak, we sent a message which went round Nuremberg and certainly not as far as NYC. Tyrants wear robes.

Posted by: Liberty1st | Dec 12, 2013 1:30:05 PM

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