I think I was like most lawyers, in that I knew emotion played a role in jury trials and the way lawyers made arguments, but I believed that if you were really being rational and logical and rigorous you should put emotion aside. But then I read a couple of Supreme Court cases—one about victim impact statements [which are typically presented as part of the sentencing process], and the other about a young boy who had been very badly beaten by his father and was suing the state of Wisconsin [for allowing it to happen]. In the case of the abused boy, the court said that although it felt compassion for him, compassion had no legitimate role to play in legal decision-making. But then that same year, the court upheld the use of victim impact statements, and I thought, Wait, but victim impact statements are all about evoking compassion!
People think they know what remorse looks like, and that they can tell just by observing someone’s facial expressions or body language whether they feel remorse or not. They also think remorse is really important when it comes to deciding what kind of punishment someone deserves—in part because they think that a person who is remorseful is less likely to commit another crime, and in part because they think that a remorseful person, or a person who looks remorseful, is someone who has a better character.
But once I started studying remorse, I found that there’s really no evidence at all to support the notion that we actually can evaluate it by looking at somebody. And so it’s a really powerful example of what goes wrong when we don’t face the fact that we are letting emotion—and our assumptions about emotion—affect our legal decisions.
There’s also just no evidence at all that someone who is remorseful during a trial is less likely to commit another crime. Because even if it’s sincere remorse, many people backslide. Someone might have the best of intentions and just not act on them. It’s also very hard to know whether someone’s apparent remorse is sincere.