18 Pages Posted: 4 Dec 2013 Last revised: 19 May 2016
Date Written: may 4, 2016
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.
Keywords: remorse, cognitive science, empathy, demeanor, facial expression, capital punishment, sentencing, implicit bias
Suggested Citation: Suggested Citation
Bandes, Susan A., Remorse and Demeanor in the Courtroom: Cognitive Science and the Evaluation of Contrition (may 4, 2016). Hunter, Roberts, Young, Dixon, The Integrity of the Criminal Process (2016 Forthcoming). Available at SSRN: https://ssrn.com/abstract=2363326 or http://dx.doi.org/10.2139/ssrn.2363326
By Susan Bandes
By Orin Kerr