“Impressed” by feelings:
How judges gain knowledge of defendants
through emotions in Danish court rooms
Louise Victoria Johansen
Ph.D., Postdoc
Centre for Studies in Legal Culture
Centre for Studies in Legal Culture
Temporal dimensions of emotions:
Motives: insight into the past
Present emotions in the court room (remorse, seriousness)
Point to a possible future (risk, recidivism)
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Empirical study
To explore how judges generally experience defendants’
behaviour, and how they comment on specific cases
80 criminal cases from three studies conducted between 2007
and 2014 in three large county courts in the Copenhagen
area;
Recorded interviews with 20 judges and recurring, informal
conversations with them;
Access to judges’ and juries’ deliberation in nearly half of the
80 cases;
Following judges in their daily office and court routines during
many months of fieldwork
Centre for Studies in Legal Culture
Centre for Studies in Legal Culture
Aim of the paper:
To analyze how judges’ perception of emotions contributes to
their understanding of cases and defendants, and how this
understanding may be rooted in specific majority
experiences and expectations.
Delimitations:
No attempt to systematically link judges’ impressions and
statements with specific sentencing outcomes in each
particular case
This paper does not address the role of spectators (and their
emotions) in the courtroom
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Analytical approach
“Impression” as a concept merges two distinct theoretical
approaches:
1. a theory about emotions (Harding & Pribram 2009), and
2. an intersectionality approach probing into junctions between
age, gender, ethnicity and class as formulated by e.g.
Crenshaw (1989; 1991) and Collins (2009).
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Hanne, judge:
”It’s the overall impression; how did he appear when he
was sitting in front of me and giving his explanation,
how does he appear during the rest of the case, e.g.
when witnesses come in. And this is why you have to
spend some time looking up and keeping an eye on
the behavior of those who are sitting in the
courtroom.”
This is why I particularly notice if someone starts
making trouble, you could say. Then I focus. But I
still think that during those 15 minutes when the
defendant is sitting in front of me – because he is
right in front of me - I can get quite a good
impression.
Interviewer: “What makes an impression on you?”
Hanne: “It’s their body language and their attitude. The
way they sit, also, and the way they answer
questions.”
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Interviewer: “Could you give some examples [from today’s
case]?”
Hanne:
“Well, I think, those young ones, who walk in and sit totally
laidback and almost as if they don’t care: it irritates me; I
might as well be honest and admit it. Because it gives me
the impression that they haven’t understood at all what this
is about: ”This is serious business, and this is the time when
you should sit up straight and nicely, and make it look – well
at least for us sitting up here – as if you have understood
how serious this is’. (Pause)
But I also think you should take care not to pay too much
attention to it [i.e. the laidback attitude], because some of
it, I think, also stems from nervousness about the situation.”
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Body and emotional understanding
”overall impression”,
”seriousness”,
”reactions”,
“appear”,
“attitude”,
”body language”,
”sit up straight”, and
”understand”
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Motives and remorse
Moralizing:
”indirect” moralizing: identifying reasons for an act
”self-moralizing”: emotional reactions in the court room
(Thomas Scheffer 2010)
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Understanding motives
Henning, judge: “[…] There is a reason for the case; I
mean the quarrel. It’s not an excuse, of course, but
it isn’t unmotivated street violence, either.”
Margrethe, judge: “Particularly in violence cases like
this one, where people have had a relationship,
money is involved, and they may have been under
pressure. And it’s not because it makes it okay to
act this way, not at all. But it explains; I mean, one
can understand. It’s not like that rough, unprovoked
violence. But it is a twilight zone.”
(indirect moralizing)
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Repentance as self-moralizing
Kirsten, judge: “I think it means something if they – well, it sounds
a bit wrong, but – if they repent. If they express that they
certainly goofed up, and if only they hadn’t done that. Or if they
have tried to say they’re sorry or something. It does have an
impact when you believe what they say.”
Joergen, judge: “…But sometimes you sit in front of someone, and
repentance is almost glaring out of their eyes, and it does make
an impression.”
Margrethe, judge: “It’s like this: ’How did the case evolve, what
kind of relation is it, and what kind of person is sitting in front of
you? Is it somebody who regrets and is sorry, or is it someone
who walks in with an attitude, and you may see them again [in
the courtroom] within half a year?’ Then it is just wasted. It’s
that impression [you get].”
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Emotions and the categorization process
Social background
Age and (mature) emotions
Gender and repentance
Ethnicity and humility
Social categories such as age, class, gender, ethnicity should
be seen as processes of categorization in relation to specific
contexts rather than as fixed categories
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Clara, judge:
“It does surface once in a while, you know, whether we judge
women a bit milder when it comes to violence. And of
course, we all want to say ‘no, of course we don’t.’ But
maybe women are more (pause)… …That one is more
inclined to give women a suspended sentence in cases of
assault than men. Because I experience women as being
more repentant, or what one might call it. Of course,
repentance in itself does not do it, but this assessment: ‘is it
safe to give a suspended sentence, because we count on not
seeing her again? Will it imply that we are less at risk of
seeing her again if we give a suspended sentence?.’
And of course, in that situation it means something what one’s
attitude is. Also, I much more often see women feeling very
alienated from this situation – the fact that they are accused
in a criminal case – and they don’t want that to happen
again.” (Interview)
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Accepted emotions
Joergen, defense attorney: “[ethnic minorities] are
a bit like, well, they don’t understand the game.
It’s no use that they enter with a big chain
around their neck and tilted cap and all that.
They don’t show any humility. It’s more Danish
to do it this way: with the face of an undertaker
to show that you understand it’s serious.”
Thomas, defense attorney: ”I’m positive that those
young immigrant guys, those misfits who shout
at the witnesses and the judges and seem
totally indifferent, they get - I’m positive that
they get - an extra 3 months for their
performance.”
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Un-Danish behavior
Some emotions are misunderstood because of
different underlying norms, and
similar reactions (e.g. throwing chairs or cups in
the courtroom) are categorized differently
according to differences in defendants’ ethnic
backgrounds.
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Conclusion
The paper has explored the relation between emotions,
processes of categorization, and context
Understanding emotions is associated with gendered, majority
perceptions of behavior
Social identities are also shaped by emotional and moral
meanings in a particular setting
Defendants’ different social positions may imply that their
emotions take on a variety of meanings in the eyes of the
judges