Description: Our law courts are places where rational processes test facts and arguments and where justice is consequently applied in a fair and “just” manner. Does that sound right to you? In the face of that description what role, if any, do emotions play in the judicial process? Before you say “none” think about the charge judges accept that their task at the end of a trial is to know the heart and mind of the defendant and to assess his or her level of contrition. Doing that requires a reading of emotional state. Can we do that? Can judges do that? Can witnesses put their beliefs and biases aside and simple testify to what they saw? Oh and do sentences judges hand down vary depending upon whether or not the judge is hungry? (Yes hungry.) Think about how you would answer these questions and then read through the article linked below and see that research tells us about some possible gaps between psychological research findings and court beliefs and practices.
Source: The Law’s Emotional Problem, Lisa Feldman Barrett, Gray Matter, New York Times.
Date: March 11, 2017
Links: Article Link — https://www.nytimes.com/2017/03/11/opinion/sunday/the-laws-emotion-problem.html
So, we (and judges are part of “we”) can only properly attribute emotions based on facial expressions (and on what people’s eyes seem to be telling us) if we are not asked to do so “free form” but are given a small number of options to choose from. In addition, the level of violence or violent intent witnesses attribute to a protesting crowd or mob varies depending upon the witnesses’ political positions. Finally, judges are less likely to grant parole to perpetrators if sentencing occurs before lunch as opposed to after lunch. There is a lot here to think about. Of particular importance is to think about what we need to do to ensure that these sorts of effects are minimized in the actions of those charged with dispensing justice in a just and fair manner.
Questions for Discussion:
- What are some of the gaps between judicial belief and psychological reality?
- Is this an area where additional research is needed?
- What steps would you suggest be taken to at least try to ensure that our judicial process are as we want them to be (unbiased, just and fair)?
References (Read Further):
Barrett, L. F. (2017). How emotions are made: The secret life of the brain. Pan Macmillan.
Kahan, D. M., Hoffman, D. A., Braman, D., & Evans, D. (2012). They saw a protest: Cognitive illiberalism and the speech-conduct distinction. Stan. L. Rev., 64, 851. http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1818&context=facpub
Danziger, S., Levav, J., & Avnaim-Pesso, L. (2011). Extraneous factors in judicial decisions. Proceedings of the National Academy of Sciences, 108(17), 6889-6892. http://www.pnas.org/content/108/17/6889.full?_ga=1.155701947.1658306299.1400869853
Gendron, M., Roberson, D., van der Vyver, J. M., & Barrett, L. F. (2014). Perceptions of emotion from facial expressions are not culturally universal: evidence from a remote culture. Emotion, 14(2), 251. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4752367/
Barrett, H. C., Bolyanatz, A., Crittenden, A. N., Fessler, D. M., Fitzpatrick, S., Gurven, M., … & Scelza, B. A. (2016). Small-scale societies exhibit fundamental variation in the role of intentions in moral judgment. Proceedings of the National Academy of Sciences, 113(17), 4688-4693. http://www.pnas.org/content/113/17/4688.full