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December 23, 2011

"Are you crying? Are you crying? ... There's no crying in the courtroom!"

With apologies to Tom Hanks, I could not help but think of his best scene in "A League of their Own" when reading this new piece in the New York Times headlined "When Tears Flow in Court, It’s Pass a Tissue and Just Wait for the Agony to End." Here is an excerpt:

Courthouse regulars know the signs: the trembling fingers, the sniffle, the telltale blow of the nose.

Another defendant is sobbing. Whether it is a politician owning up to corruption or a scam artist admitting frittered millions, the weep is a courthouse staple....

Which raises a question: What is the proper response to a courtroom wailer? Look away? Tell him or her to man up?

Defense lawyers, who are usually the ones within tissue-supplying range, say that in court, as in life, there is no easy answer. “You can’t do much about it,” said Ronald P. Fischetti, a defense lawyer who has handled his share of weeping politicians and red-eyed white-collar criminals. “You can put your arm around him,” Mr. Fischetti offered....

Of course, one man’s sincere tear is another man’s sniveling manipulation. So there are many perspectives to any courtroom cry fest. The most important one is likely to be the one from the bench. From up there, the emotion can look intense, said Stephen G. Crane, who was a judge in New York for 27 years. Still, he said he could not recall an instance in which tears changed his mind about how long an offender needed to be sent up the river.

But judges are people too. “You feel embarrassment for the defendant; I did, anyway,” Mr. Crane said. “What goes through your mind is: ‘He feels poorly because he got caught.’ ”...

From the prosecution side of the courtroom, weepers do not typically get much response, given the sphinxlike stare of most prosecutors. It is not that prosecutors fail to notice the waterworks, explained Rita M. Glavin, a white-collar defense lawyer and former Justice Department official. But, Ms. Glavin said, there are times when a prosecutor’s blank face masks disgust for crocodile tears. “The thought going through your mind is: ‘You got to be kidding me,’ ” she said. “But you don’t show it.”

Many lawyers say they would be shocked — shocked — at any suggestion of planned bawling, though some have been known to have had a “to cry or not to cry” conversation with a client. But some lawyers did concede that they were sometimes among the courtroom skeptics. Ira Lee Sorkin, best known for representing Bernard L. Madoff (who, Mr. Sorkin said, did not cry in court), mentioned that it can be uncomfortable to sit next to a client who is a crier. “In some cases,” he said, “your concern is whether he’s faking it.”

Several lawyers expressed disgust at the notion of strategic crying. Thomas C. Green, who has represented members of Congress and other officials in unfortunate circumstances, said such a strategy to win sympathy would lack finesse. “There’s a more elegant way than sobbing in the courtroom,” Mr. Green said.

Alan Vinegrad, a former United States attorney in Brooklyn who is now a defense lawyer, agreed. “Look,” he said, “the bottom line is it has to be genuine. If there’s any hint it’s anything other than completely genuine, it’s probably going to backfire.” But whatever the courtroom vantage point on a crying jag, there was general agreement in interviews this week that sitting through one is a moment when no one is sure what to do.

December 23, 2011 at 12:37 PM | Permalink


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But judges are people too. “You feel embarrassment for the defendant; I did, anyway,” Mr. Crane said. “What goes through your mind is: ‘He feels poorly because he got caught.’ ”...

This response is so common it is cliche. Does anyone know how true it is? The dynamics are fascinating precisely because it is so accepted at face value. There are two minds at work, the judge's and the defendant's.

If we look into the judges mind, we might find some cognitive dissonance. It may well be true that the defendant never felt any pangs of guilt or shame, but it may also be true there were such pangs before, maybe often, and the regret in the courtroom is merely an extension of past feelings. The judge of course cannot know that and the implication is that genuine remorse should make a difference, but if courtroom remorse does not, or never has made any difference, maybe the judge has to convince him- herself is is always fake; hence, cognitive dissonance: it is merely regret at getting caught.

Maybe the question goes to the concept of free will because since we do everything of our own volition there is no point in regretting any of it. But does life really work that way?

On the other hand, maybe no one else thinks this is interesting.

Posted by: George | Dec 23, 2011 3:45:35 PM

Unlike baseball, in the courtroom, you are supposed to show emotion. If a defendant isn't remorseful enough, some get upset. Some violent felon looks on dispassionately and it's like "the nerve of that guy." A few well placed tears are okay in that sense. Tom Hanks would approve.

Posted by: Joe | Dec 23, 2011 4:19:55 PM


The problem is epistemological. There is no way to experimentally test the hypothesis since the subjects have a vested interest in the outcome. One could try the old college student route but here especially it would seem that any result you get would not be generalizable to the target population. The other route would be some type of MRI study but I have a professional aversion to them even more so than college students. These days MRI is a big red flag for junky science, in psychology at any rate.

My gut reaction is that less people are faking it than judges think but I have no doubt that some are. People accept things at face value often precisely because they lack the specific knowledge to know any better. Look at the war still going on over witness identification for how intractable these issues can be.

Posted by: Daniel | Dec 23, 2011 5:21:51 PM

I wonder what people would think about a so-called victim that let the waterworks flow. Then admitted that she faked a photo and made up an assault because "he cheated on me." Prosecutor (and grand jury) had no problem buying that story, thus, I suspect most prosecutors find crying to be credible, especially as it took two more days of witnesses testifying that her story was impossible before charges were dismissed.

Posted by: S.cotus | Dec 23, 2011 5:30:36 PM

Now there's something you don't see every day, a piece in a major newspaper mocking people at the moment of their destruction/degradation/despair...complete with speculation their tears are probably phony. What, wasn't there any news in the world for the Times to cover on that day?

OK, Bill or federalist or others in the Legion of Scolds and Stern Disciplinarians, it's time to remind me again how all the dastardly people we march through the courts are only getting exactly what they richly deserve...including a final kick of humiliation for crying on their way to prison.

Posted by: John K | Dec 24, 2011 8:23:33 AM

Best approach, even if totally fake? Trying but failing to restrain quiet tears. Squirt onions secretly before going on the stand. Quiet daub the flowing tears. Tremble the lower lip. And put your hand over your mouth to appear to be stiffling yourself.

Posted by: Supremacy Claus | Dec 24, 2011 9:49:55 AM

I had one experience with crying when I was an AUSA. A lawyer was being sentenced after being convicted of being a money launderer for a drug business. He gave a halting and emotional, but tearless, allocution. That's not news.

The news was that he brought his (about) ten year-old daughter to court with him. She was absolutely beautiful -- angelic, really -- and was in the audience as her father spoke. You could see she was trying to hold back the tears, but they burst through. This was not staged. The girl was gasping and choking with pain and grief.

I don't know what effect if any it had on the judge. Probably none, since he read what was obviously a prepared statement to go along with pronouncing sentence.

But it had an effect on me. For as low and unethical as a lawyer could get for being a money laundering service for druggies, this guy was worse, much worse. This was a father who used his own kid as a prop. That, indeed, is the only reason you would take a child of that age to your sentencing. A parent with any decency at all tries to INSULATE his young children from the miseries of adult life. But not this guy. He deliberately brought anguish to his daughter in the hopes that it would prove useful to him.

This happened probably 25 years ago, but it was a lesson to me about how unearthly selfish and cruel some defendants can be.

Posted by: Bill Otis | Dec 27, 2011 9:26:42 AM

I tend to agree with S.c ... whether the prosecutor or defendant is pro or anti tears largely depends upon whose ox is being gored.

Also, my life experience tells me that selfishness and cruelty are not traits limited to the criminally accused.

Posted by: C | Jan 4, 2012 2:06:53 PM

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