Although there is a rich legal literature on whether remorse should play a role in the criminal justice system, there is little discussion of how remorse can be evaluated in the legal context. There is ample evidence that perceptions of remorse play a powerful role in criminal cases. Yet the most basic question about the evaluation of remorse has received little attention: is remorse something that can be accurately evaluated in a courtroom? This article argues that evaluation of remorse requires a deep assessment of character, or of the condition of the soul, and that the legal system may not be capable of such evaluation. At the same time, the article acknowledges that remorse is so closely intertwined with judgments of culpability, it may not be feasible to bar decision-makers from considering it. Assuming that evaluation of remorse is ineradicable, the question becomes: what can be done to improve upon an evaluative process riddled with error and bias?
See e.g.Coyv. Iowa 487 u.s. 1012 1017 (1988) (discussing the centuries-old belief that face-to-face encounter is essential to a fair trial). See also Olin Guy Wellborn III “Demeanor” 76 Cornell L. Rev. (1991) 1075 1076–1077 (citing sources tying the importance of demeanor as an indicator of credibility to the preference for in-court testimony).
See e.g.Coyv. Iowa 487 u.s. 1012 (1988) (holding that the confrontation clause was violated when a witness testified from behind a screen). The right is nevertheless not absolute. See Maryland v. Craig 497 u.s. 836 (1990) (holding that the confrontation clause was not violated when the witness testified via closed-circuit television).
Timonysupra note 4 at 921 (quoting Henry S. Sahm “Demeanor Evidence; Elusive and Intangible Imponderables” 47 aba J. (1961) 580 580).
Colesupra note 34 at 51 (discussing the findings of Peter Hobson on theory of mind and autism).
Colesupra note 34 at 54–55.
See e.g. Ickessupra note 36.
See e.g. Deborah Franklin. (2009). “Disgust or Anger? Some Looks Don’t Translate”. National Public Radio. Retrieved 30 Jun. 2014 www.npr.org/blogs/health/2009/08/to_spot_an_eastwest_difference.html See also Everett and Nienstedt supra note 47 at 117–118 discussing “culturally defined inhibitions that preclude the open demonstration of certain emotional expressions.”
Duncansupra note 16.
Sundby“The Capital Jury and Absolution”supranote 18; Craig Haney Lorelei Sontag and Sally Constanzo “Deciding to Take a Life: Capital Juries Sentencing Instructions and the Jurisprudence of Death” 50 Journal of Social Issues (2010) 149; Eisenberg et al. “But Was He Sorry? The Role of Remorse in Capital Sentencing” 83 Cornell L Rev (1998) 1599 1604-1607; William S. Geimer and Jonathan Amsterdam “Why Jurors Vote Life or Death: Operative Factors in Ten Florida Death Penalty Cases” 15 Am. J. Crim. L 1 (1987–1988) 16–17. See also M. Kimberly MacLin Conn Downs Otto H. HacLin and Kather M. Caspers “The Effect of Defendant Facial Expression on Mock Juror Decision-making: The Power of Remorse” 11 North American Journal of Psychology (2009) 323 (finding that mock jurors are significantly more likely to reach a lenient verdict when a defendant’s facial expression is remorseful).
Haney Sontag and Constanzosupra note 53 at 163. See also Michael E. Antonio “Arbitrariness and the Death Penalty: How the Defendant’s Appearance During Trial Influences Capital Jurors’ Punishment Decision” 24 Behavioral Sciences and the Law (2006) 215 223 (finding that when jurors viewed the defendant in the courtroom as emotionally involved sorry and sincere they were much more likely to favor a life sentence than when they viewed the defendant in the courtroom as emotionally uninvolved and bored.
Weisman“Remorse and Psychopathy”supranote 14 at 203.
Duncansupra note 16 at 1499 (discussing problems of judging demeanor of juveniles in homicide cases).
See Everett and Nienstedtsupra note 47 (finding that both race and ethnicity affected evaluations of expressions of remorse).
Duncansupra note 16.
Bowers et. al.supra note 49 at 244–252.
Duncansupra note 16 at 1476.
Rachel Aviv“No Remorse”The New Yorker55 63 January 2 2012. This is problematic when investigative mental health or legal personnel interpret the lack of “same day contrition” as evidence of remorselessness. Duncan ibid. at 1491.
But see John M. Grohot.2011. “Can you Fake Feeling Remorse?”. PsychCentral. Retrieved 30 Jun. 2014 http://psychcentral.com/blog/archives/2011/02/10/ reporting on a Canadian study that found certain indicators of fake remorse including a greater range of emotional expressions swinging from one emotion to another quickly and speaking with hesitation.
Murphy“Remorse, Apology, and Mercy”supranote 66 at 437.
See e.g. Eberhardt et al.supra note 46 and Bowers et al. supra note 49. See also Michael E. Antonio “If Looks Could Kill: Identifying Trial Outcomes of Murder Cases Based on the Appearances of Capital Offenders Shown in Black-and-White Photographs” in Burthold G.R. (ed.) Psychology of Decision Making (2007) 8.
Weisman“Remorse and Psychopathy”supranote 14 at 204.
See Duncansupra note 16 at 1517–1518. Duncan cautions that though experts can be helpful they are no panacea in part because they may disagree.
Everett and Nienstedtsupra note 47 (discussing the contribution of mental health experts to the process of judicial evaluation of remorse displayed by mentally ill offenders); Stobbs and Kebbell supra note 52.