October 2016 – What we in colloquial language refer to as “the legal system” is far from a unified entity. Rather, it is comprised of many individual actors: legislators, police, border control agents, prosecutors, clerks, attorneys of many sorts, regulators, court-affiliated treatment providers, experts, compliance inspectors, prison administrators, and so on. Each of these individual actors is embedded in a particular structural context—a family court, say, or a public benefits fair-hearings office—with its own zone of competence and power. Despite the oft-invoked rhetoric insisting on law’s dispassion, it should be no surprise that the legal system is deeply influenced by the emotions of its many human participants (Feigenson, 2015), and that each participant’s structural position within the legal system affects both emotional experience and its expression (Bergman Blix & Wettergren, 2015).
As others in this issue have noted, the empirical research base on emotional experience and expression within the legal system is relatively thin. It also is uneven. By far the greatest share of such research has focused on jurors (or, more often, mock jurors); a far smaller share focuses on judges; and the many other system participants are largely ignored.
In this article I synopsize the major lessons to date from research not only on the influence of emotion on jurors, but also on the equally important and neglected influence of emotion on judges. An important distinction between the two should be noted at the outset. In traditional legal narratives, the assumption is that jurors are, if left to their own devices, likely to experience emotion and allow it to influence their decisions; the task of the system is therefore thought to be to dampen jurors’ emotional experience and neuter its influence. In contrast, judges are thought to be uniquely capable of going about their business without emotional influences. Indeed, the capacity for emotionlessness long has been thought to be a marker of competent judging (Hobbes, 1651). These theoretical assumptions affect the empirical questions that researchers tend to pursue.
The fundamental questions animating empirical research on jurors are nicely summarized by Neal Feigenson, who asks: “Which emotions, elicited by which sources, under what conditions, affect what kinds of decisions, to what extent, mediated by what other kinds of thoughts or feelings (Feigenson, 2010, p.45)?”
As distilled in a recent review (Feigenson, 2015), juror emotion appears to affect information processing; judgments of responsibility and blame; and severity of imposed punishment. These effects generally are observed both when the juror’s emotion is integral to the case—that is, prompted by case-relevant information, such as gruesome testimony about a victim’s injuries—or incidental to the case—that is, prompted by information extrinsic to the juror’s judgment task, such as anger at a fellow juror for rude behavior, anxiety over being pulled away from work and home obligations, or disgust with unsanitary courtroom conditions (Feigenson, 2010, p.52).
First, jurors (or, far more commonly, laypersons assigned a juror-like task in an experimental setting) display informational processing effects that are consistent with the effects demonstrated in non-legal experimental settings. As would be predicted by the literature on appraisal tendencies, mock jurors process evidence in a manner consistent with the underlying appraisal structure of their emotional states. Those emotional states therefore have an effect, of which jurors are unlikely to be conscious, on how evidence is evaluated, and on how jurors reach crucial decisions on vital issues such as witness credibility, criminal culpability, and civil liability.
For example, mock jurors who are primed with emotions associated with certainty—such as anger—approach juror decision making tasks with greater certainty. They analyze information less systematically, are more inclined to rely on heuristic cues, and take into account fewer factors when reaching decisions (Tiedens and Linton, 2001; Lerner, Goldberg, & Tetlock, 1998). In contrast, mock jurors primed with sadness approach those same tasks with a more cautious and skeptical eye. They appear to analyze information more carefully and are better able than neutral controls to identify testimonial inconsistencies (Semmler & Brewer, 2002).
Second, jurors’ emotions appear to affect not just their information processing style but also the content of their decisions. This impact has been shown as to both attributions of blame and severity of recommended punishment. Two mechanisms for this impact have been proposed. An emotion-congruency mechanism might explain why jurors who are angry tend to blame more, as the cognitive structure of that emotion makes more salient aspects of a case that cohere with that structure, such as attributions of responsibility and the causation of unwarranted harm (Feigenson, 2015; see also Lerner et al., 1998; Ask & Pina, 2011). Both sympathy for victims of wrongdoing and anger at perceived wrongdoers can increase judgments of responsibility and blame, and can mediate legal determinations as to the relative share of fault in comparative negligence cases (Feigenson, 2010, at p.50). Similar effects have been found in a criminal scenario, in which increases in mock jurors’ anger were associated with increases in willingness to vote for the death penalty (Georges, Wiener, & Keller, 2013).
The affect-as-information mechanism might explain similar effects, at least as to integral emotions (Feigenson, 2015). Jurors might regard case-relevant emotions as a direct information cue bearing on judgment. Research suggests that integral emotion functions as a mediator in mock criminal and civil cases, affecting judgments of a tortfeasor’s blameworthiness for causing severe injuries to an accident victim (Bornstein, 1998) as well as judgments of criminal defendants’ blameworthiness and deserved punishment (Laurent, Clark, Walker, & Wiseman, 2014; Paternoster & Deise, 2011; Wevodau, Cramer, Kehn, & Clark, 2014). Highly triggering visual stimuli such as gruesome crime scene photographs might also exert a direct effect on jurors’ judgments of blameworthiness and deserved punishment (Bright & Goodman-Delahunty, 2006).
The extant research base thus tends strongly to confirm the common-sense notion that jurors experience emotion when hearing evidence and reaching judgments, and that those emotions have a potentially powerful and often unacknowledged influence. Perhaps counterintuitively, this may be true even when jurors are made aware that the primed emotion is entirely irrelevant to the task before them; in other words, even when jurors are fully informed that the emotion and its trigger have nothing to do with the case, the emotion continues to exert an influence (Loewenstein & Lerner, 2003).
However, extant studies bear an imperfect relationship to the real world of jury service. Because direct observation of actual jurors is difficult and variables not easily isolated for manipulation, researchers working with mock jurors must develop theories for how experimental results might reflect real-world impacts. A preliminary meta-analysis of experimental work suggests that emotion effects on juror judgments of legal responsibility are likely to be in the modest to moderate range (Park & Feigenson, 2015).
Even these relatively low-level estimates might, on the one hand, overstate emotions’ impact (Feigenson, 2015). Real jurors are over the course of a case exposed to a wide variety of emotionally salient stimuli, sometimes contrasting ones—for example, a highly sympathetic defendant, gruesome evidence, an annoying expert, and an unsympathetic complaining witness. Some of the emotionally salient stimuli will be intrinsic, others extrinsic. Stimuli of both sorts will present at various moments in time, in no particular order. Jurors also are exposed to a wide range of relevant stimuli with very low emotional salience—for example, the precise layout of a particular intersection in which an accident occurred and witnesses’ lines of sight thereof. Their attention therefore is not likely to be as consistently focused on the emotionally salient subset of stimuli as a mock juror’s is likely to be. Jurors deliberate in a group, and emotionally infused group dynamics invariably have an impact of their own. Real jurors appear to take seriously their obligations to consider the evidence fairly and carefully, and are instructed to set their emotions aside when doing so (though we have little idea what they think that instruction means or how they try to comply with it). They also know they will be at least somewhat accountable for their decisions and likely are conscious of the real-world stakes (Feigenson, 2015)
On the other hand, modest-to-moderate range estimates might significantly understate the influence of juror emotion (Feigenson, 2015). The difference between emotions evoked in a laboratory and those evoked in a real case—particularly one involving highly traumatic facts and severely injured persons—cannot be gainsaid (Feigenson, 2015; Shuman et al., 1994; Wiener, Krauss, & Lieberman, 2011). Finally, emotions and judgments likely reinforce one another through a recursive feedback loop, further complicating the picture. For example, a juror who determines that a civil defendant is responsible for a harm may then feel angry at that defendant; her anger may influence how she processes evidence about the extent of the victim’s damages; a finding of greater damages may create more anger; and so on (Feigenson, 2010, at p.52). The process of deciding is influenced by emotion but also likely generates emotions of its own, which then may exert further influence.
In short, juror emotion is a highly complex phenomenon. Extant studies helpfully illustrate some aspects of that complexity, strongly suggesting that emotion influences both jurors’ decision-making processes and the outcomes of those processes, such as judgments of blame and assessments of relative blameworthiness. These findings are consistent with the weight of evidence about emotion’s processing and decisional effects in non-juror settings.
Further research is needed, however, to explore the contours of juror emotion, particularly in field settings. Mock juror studies have many advantages, not least among them their relative ease of construction and implementation. Jurors, like experimental subjects, are laypersons who are presented with a constrained universe of stimuli and asked to make discrete decisions. The parallels between the world inside the laboratory and the one outside it, though, are not as elegant as we might hope. Ease of experimentation might serve the needs of the research community far more than it does those of the legal community (Maroney,2012b). In the coming years, one hopes, controlled laboratory experimentation on juror emotion will be seen primarily as a source for robust hypotheses to be tested in complex field settings rather than an end unto itself.
If we seek thoroughly to understand emotions’ influence on the legal system, it is vital that we widen our research lens far beyond jurors, even real-world jurors. The simple reality is that a vanishingly small share of legal disputes involves jurors at all. About 98% of civil cases and 95% of criminal cases are disposed of without trial, let alone a jury trial. Cases that never involve a single juror do involve a wide range of other legal actors, particularly lawyers and—apropos of the present discussion—judges.
It long has been true that “dispassion” is regarded as a core judicial virtue. Thomas Hobbes declared in Leviathan that the ideal judge is “divested of all fear, anger, hatred, love, and compassion (Hobbes, 161, p.203)”. This view has proved itself remarkably sticky even in modern times. In this traditional narrative, emotion is a mysterious, subjective, and unruly force that ought not influence a decision-making process that is meant to be transparent, objective, and guided by public concerns (Maroney & Ackerman-Lieberman, 2014). The script of dispassion complicates the study of judicial emotion, as the stigma it creates for those judges who do admit to experiencing emotion discourages transparency (Posner, 2006, p.1065).
Notwithstanding this difficulty, the theoretical literature on judges’ emotions is small but growing (Maroney, 2011a & 2011b; Maroney, 2012), and the same is true of the empirical literature. With all the caveats attending a new area of inquiry, the extant research strongly suggests that judges, too, experience emotion in the course of their work and that such emotion influences their behavior and decision-making. We are just beginning to understand with greater precision how emotions affect judges, and to develop theories for distinguishing legitimate influences from illegitimate ones.
Evidence of judicial emotion and its impact comes, first, from a small group of qualitative studies. Surveyed Australian judges reported a range of emotions, disproportionately negative ones (Anleu & Mack, 2005; see also Mack & Anleu, 2010, Anleu & Mack, 2013). One described judicial work as “seeing absolute misery passing in front of you day in, day out, month in, month out, year in, year out (Anleu & Mack, 2005, p. 611)”. Researchers in Sweden are uncovering evidence of judicial emotion even in a culture with muted display norms, with direct observation and self-report showing experiences ranging from anger at litigants (for example, for the harms they have caused) to shame at falling short of professional expectations (for example, by failing to provide a required instruction at the appropriate time) (Bergman Blix & Wettergren, 2015). State-court judges in Minnesota, responding to questions about victim impact statements delivered at criminal sentencing, reported emotions including frustration, anger, and compassion (Schuster & Propen, 2010). One described feeling that he was going to cry after hearing a mother describe a moment in which she thought her son was going to die, and then regaining “what he thought was necessary composure because ‘you are not supposed to cry on the bench when you are a judge’ (Schuster & Propen, 2010, p. 89).”
As the last example suggests, judges’ professional norms require them to engage in significant efforts to control their emotional expressions. This emotional labor (Hochschild, 1983) is difficult, particularly as it operates in tandem with the labor they must expend responding to and attempting to control the emotional experience and expression of others in their ambit, such as witnesses, jurors, spectators, and lawyers (Maroney, 2011b). Further research is required to understand in detail how judges perform this emotional labor; the psychological literature on emotion regulation yields a number of promising hypotheses as to the regulatory strategies likely to be most and least adaptive in the judging domain (Maroney & Gross, 2014).
An even smaller group of quantitatively oriented studies sheds some further light on judicial emotion. A research trio known primarily for showing the extent to which judges are affected by ordinary cognitive heuristics and biases recently published a study implicating the affect heuristic, understood as a rapid, felt sense of goodness/liking or badness/disliking that drives choices we then rationalize (Wistrich, Rachlinski, & Guthrie, 2015; Maroney, 2015). In a series of experiments involving real judges presented with hypothetical situations, they manipulate a variable with emotional elements—for example, whether a person accused of entering the country without legal permission to do so is a father trying to save his desperately ill child’s life, or a hired assassin for a drug cartel—and that bears no relationship to the decision-making task—for example, determining whether a particular manner of altering a passport is proscribed by a specific statute. The feelings of like or dislike prompted by the independent variable have a statistically significant effect on the judges’ resolution of purely legal questions—precisely the sort of questions to which emotion ought to be least relevant.
Another recent study examined real judges’ decisions in actual cases implicating gender equity, such as employment discrimination claims (Glynn & Sen, 2015). Male judges, particularly politically conservative ones, tend to rule differently in such cases when they have daughters. The authors propose, quite plausibly, that the differential can be attributed to these fathers’ love for their daughters. That love, they propose, motivates and facilitates male judges’ learning about the realities of women’s lives, which then pushes their jurisprudential views in a particular direction. These results suggest more generally that a highly personal, emotionally rooted empathic connection with dissimilar groups—disabled persons, for example—might affect judges’ decisions (Glynn & Sen, 2015).
Finally, both the qualitative and quantitative literature cohere narratively with judges’ occasional emotional self-reports. Because stigma remains high, such reports are sporadic (particularly among judges serving actively in states in which they must seek re-election, rather than those who enjoy life tenure). Though it is difficult to extrapolate from a small cluster of voices to the larger population, that cluster tends to express similar themes. The late US Supreme Court Justice William J. Brennan, Jr. proclaimed that judges must embrace “passion,”which he described as “the range of emotional and intuitive responses to a given set of facts or arguments, responses which often speed into our consciousness far ahead of the lumbering syllogisms of reason”; only this passion, Brennan insisted, would anchor judicial rulings to human realities, preventing the law from becoming sterile and bureaucratic (Brennan, 1988, p.9). With this theory Brennan picked up a theme earlier articulated by the late US Supreme Court Justice Benjamin Cardozo (Cardozo, 1921), one that has been further echoed by prominent contemporary judges (Posner, 2001, 2008; Calabresi, 1993). Judges have spoken about the high emotionality of criminal sentencing, describing the weighty burden of having to pass judgment on a person’s fate, the sadness they feel about the harms victims have suffered, the anger they may feel at the person who caused them, and the simultaneous sorrow they may feel for those persons and their families (Chin, 2012; Bennett, 2011). Judges also have spoken eloquently of the role of mercy in their judgments (Kennedy, 2003). The importance of an emotional connection with and commitment to law’s subjects is a frequent theme; for example, the late US District Judge Edward Devitt wrote that “[i]f we judges could possess but one attribute, it should be a kind and understanding heart” (Devitt, 1979, p. 1175).
It is not a stretch to say that judges are given seemingly irreconcilable commands, namely both to be dispassionate and to maintain an open and caring heart. Navigating those competing commands is itself a significant challenge. An Australian magistrate judge vividly described that challenge: “Now, there’s two things that can happen to you. Either you’re going to remain a decent person and become terribly upset by it all because … your feelings are being pricked by all of this constantly or you’re going to … grow a skin on you as thick as a rhino, in which case I believe you’re going to become an inadequate judicial officer because once you lose … the feeling for humanity … I don’t believe you can do the job” (Anleu & Mack, 2005, p.612).
A retired Canadian trial judge provided another vivid account of emotional challenge and labor in a recent memoir. Among other things, she recounted an incident in which she kept her demeanor “as professional and calm as ever,” despite being “angry at having seen yet another trial where there was no evidence beyond the testimony of the child” who complained of being sexually abused, and in which she acquitted the defendant; in such situations, “though I might squirm internally or feel angry or sympathetic, there was little I could do legally” (Corbett, 2016, pp. 26, 31). Being hemmed in by legal constraints, as this judge describes, might lead to frustration; it also leaves a normal emotional response with little room to be expressed. This judge also recalled the physical imprint of her emotional labor. “The judge’s back bears the daily grind of justice,” she wrote, her required “rigidity of posture … exacerbated by the stress of continually making decisions, large and small, in an arena of confrontation and while under public and professional scrutiny” (Corbett, 2016, p.70). Further, because she frequently had to literally bite her lip to keep others from seeing her laugh or smirk, a “tiny red bruise on my lower lip had become a permanent feature” (Corbett, 2016, p. 130). As this account suggests, a judge’s emotional labor is difficult and it takes a toll, all the more so because of the absence of acceptable outlets for expression.
To sum up, judges’ emotions are, just like those of jurors, a highly complex phenomenon. They are, however, far less frequently studied, even though—given the decline of jury trials—they are much more important in the ordinary course of affairs. At this early stage of inquiry we can say with certainty that judges experience a wide range of emotions in connection with their work; that coping with these emotions is difficult, particularly given the confusing and conflicting norms with which they are expected to comply; and that these emotions and judges’ efforts to regulate them certainly have some impact on their decisional processes and outcomes. We have yet to assemble reliable data as to the precise nature of that impact.
Judges and jurors present unique opportunities for the emotion researcher. Not only is the field relatively open but the answers that a robust research program might yield are vitally important. Is it possible to tease out the influence of case-relevant (i.e., intrinsic) and case-irrelevant (i.e., extrinsic) emotion on actual juror decision making? Are there juror instructions that could help jurors to use their emotions in legitimate ways but not in illegitimate ones? Might lawyers and judges be able to counteract predictable information-processing effects of certain highly likely evidence-triggered emotions? Can judges improve their skills at emotion regulation, and might such improvements improve either their subjective experience of judging, the quality of their decisional processes and outputs, or both? These are of course very broad questions, but a serious research program to address them would be a service both to science and to the law.
In this growing field there is ample room for all approaches, wherever they hit along the qualitative to quantitative spectrum, and for all disciplinary orientations, ranging from the sociological to the psychological and even neuroscientific. The people who populate the legal system inevitably are affected by the full panoply of human emotion. Efforts to ignore or suppress this reality are doomed to failure; efforts to understand and shape it can meaningfully advance justice.
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