Emotion and the Law: A Framework for Inquiry

This paper draws on research in social and cognitive psychology to show how theories of judgment and decision making that incorporate decision makers' affective responses apply to legal contexts. It takes 2 widely used models of decision making, the rational actor and lens models, and illustrates their utility for understanding legal judgments by using them to interpret research findings on juror decision making, people's obedience to the law (e.g., paying taxes), and eyewitness memory. The paper concludes with a discussion of the advantages of modifying existing approaches to information processing to include the influence of affect on how legal actors reach judgments about law and legal process.     

基于法律原则的裁判

基于法律原则的裁判需依次解决以下三个问题:如何识别与个案相关的法律原则;如何处理原则与规则的适用关系,或者说在何种情况下,允许裁判者依据法律原则得出判决;如何解决原则之间的冲突问题,亦即能否籍由原则权衡获取法律上的“唯一正解”。现有的裁判理论对这三个问题作了不同回应,但欠缺可靠的操作程式。究其根源,是因为原则裁判的实质,是裁判者在规则穷尽之际,选择并依据法律体系内的价值判断为个案判决提供合理化论证;然而一旦涉及到价值判断,裁判就有主观、恣意和片面的可能。     

Effects of Testimonial Inconsistencies and Eyewitness Confidence on Mock-Juror Judgments

This study examined the interaction between testimonial consistency and eyewitness confidence on mock-jurors' judgments of probability that the defendant committed the crime and verdicts. In a 2 (testimonial consistency) × 2 (confidence) between-groups design, 130 mock-jurors listened to an audio-taped trial of a person charged with armed robbery. Manipulations were contained in the prosecution witness's responses to detailed questioning by prosecution and defense attorneys. Although consistency is considered to be a key marker of accuracy, its impact on judgments was weak and nonsignificant. Witness confidence had a strong influence on judgments, whether testimony was consistent or inconsistent. We suggested that witness confidence may be more likely to emerge as a dominant influence on juror judgments when the testimony is wide ranging rather than relatively brief and concerned only with a specific issue (e.g., identification confidence).     

Violence Risk Assessment and Risk Communication: The Effects of Using Actual Cases,Providing Instruction,and Employing Probability Versus Frequency Formats

This article describes studies designed to inform policy makers and practitioners about factors influencing the validity of violence risk assessment and risk communication. Forensic psychologists and psychiatrists were shown case summaries of patients hospitalized with mental disorder and were asked to judge the likelihood that the patient would harm someone within six months after discharge from the hospital. They also judged whether the patient posed a high risk, medium risk, or low risk of harming someone after discharge. Studies 1 and 2 replicated, with real case summaries as stimuli, the response-scale effects found by Slovic and Monahan (1995). Providing clinicians with response scales allowing more discriminability among smaller probabilities led patients to be judged as posing lower probabilities of committing harmful acts. This format effect was not eliminated by having clinicians judge relative frequencies rather than probabilities or by providing them with instruction in how to make these types of judgments. In addition, frequency scales led to lower mean likelihood judgments than did probability scales, but, at any given level of likelihood, a patient was judged as posing higher risk if that likelihood was derived from a frequency scale (e.g., 10 out of 100) than if it was derived from a probability scale (e.g., 10%). Similarly, communicating a patient's dangerousness as a relative frequency (e.g., 2 out of 10) led to much higher perceived risk than did communicating a comparable probability (e.g., 20%). The different reactions to probability and frequency formats appear to be attributable to the more frightening images evoked by frequencies. Implications for risk assessment and risk communication are discussed.     

Why Emotions Matter: Expectancy Violation and Affective Response Mediate the Emotional Victim Effect

The mechanisms behind the ‘emotional victim effect’ (i.e., that the emotionality of a rape victim’s demeanor affects perceived credibility) are relatively unexplored. In this article, a previously neglected mechanism—observers’ affective response to the victim—is proposed as an alternative to the traditional expectancy-violation account. The emotional victim effect was replicated in an experiment with a sample of police trainees (N = 189), and cognitive load was found to increase the magnitude of the effect. Importantly, both compassionate affective response and expectancy violation actively mediated the emotional victim effect when the other mechanism was controlled for. These findings extend previous research on credibility judgments by introducing a ‘hot’ cognitive component in the judgment process. Theoretical and practical implications are discussed.     

Building Community One Relationship at a Time: Consequences for the Seeking and Acceptance of Help

Three studies test the hypothesis that a perceived relationship is relevant to seeking and accepting help. The results first indicate a direct effect for a perceived relationship on the extent to which people are willing to seek and accept help. The findings further indicate that perceiving a relationship increases the importance of procedural justice judgments in shaping the decision to seek and accept help. This was true both in vertical relations (e.g., student–professor, resident–police officer) and in horizontal ones (e.g., student–student). The research extends prior findings showing that common group membership increases the influence of procedural justice judgments on whether people cooperate with fellow group members. The results show a parallel with the effects of a perceived relationship, suggesting a comparability between “relational” and “collective” levels of identity.     

导致物权变动之法院判决类型

法院判决可以直接导致物权变动,而无须物权变动的公示.导致物权变动的法院判决包括民事判决和刑事判决,但主要是民事判决,且限于诉讼判决中的形成判决.在形成判决中,只有具有对世效力且包含物权变动内容的形成判决才能导致物权变动,具体包括分割共有物的判决、撤销合同的判决和撤销债务人损害债权行为的判决等.     

Statistical techniques for juror and jury research

Juror and jury research is a thriving area of investigation in legal psychology. The basic ANOVA and regression, well‐known by psychologists, are inappropriate for analysing many types of data from this area of research. This paper describes statistical techniques suitable for some of the main questions asked by jury researchers. First, we discuss how to examine manipulations that may affect levels of reasonable doubt and how to measure reasonable doubt using the coefficients estimated from a logistic regression. Second, we compare models designed for analysing the data like those which often arise in research where jurors first make categorical judgments (e.g., negligent or not, guilty or not) and then dependent on their response may make another judgment (e.g., award, punishment). We concentrate on zero‐inflated and hurdle models. Third, we examine how to take into account that jurors are part of a jury using multilevel modelling. We illustrate each of the techniques using software that can be downloaded for free from the Internet (the package R) and provide a web page that gives further details for running these analyses.     

Analysing and exemplifying forensic conclusion criteria in terms of Bayesian decision theory

There is ongoing discussion in forensic science and the law about the nature of the conclusions reached based on scientific evidence, and on how such conclusions – and conclusion criteria – may be justified by rational argument. Examples, among others, are encountered in fields such as fingermarks (e.g., ‘this fingermark comes from Mr. A's left thumb’), handwriting examinations (e.g., ‘the questioned signature is that of Mr. A’), kinship analyses (e.g., ‘Mr. A is the father of child C’) or anthropology (e.g., ‘these are human remains'). Considerable developments using formal methods of reasoning based on, for example (Bayesian) decision theory, are available in literature, but currently such reference principles are not explicitly used in operational forensic reporting and ensuing decision-making. Moreover, applied examples, illustrating the principles, are scarce. A potential consequence of this in practical proceedings, and hence a cause of concern, is that underlying ingredients of decision criteria (such as losses quantifying the undesirability of adverse decision consequences), are not properly dealt with. There is merit, thus, in pursuing the study and discussion of practical examples, demonstrating that formal decision-theoretic principles are not merely conceptual considerations. Actually, these principles can be shown to underpin practical decision-making procedures and existing legal decision criteria, though often not explicitly apparent as such. In this paper, we will present such examples and discuss their properties from a Bayesian decision-theoretic perspective. We will argue that these are essential concepts for an informed discourse on decision-making across forensic disciplines and the development of a coherent view on this topic. We will also emphasize that these principles are of normative nature in the sense that they provide standards against which actual judgment and decision-making may be compared. Most importantly, these standards are justified independently of peoples' observable decision behaviour, and of whether or not one endorses these formal methods of reasoning.     

Positive versus Negative Framing Affects Justice Judgments

This research demonstrates the effect of framing on justice judgments. Presenting identical allocation situations in different modes of accomplishing the resource allocation, resulting in either positive (benefits) or negative (harms) outcomes, affects justice judgments. Two independent studies revealed that participants judged non-egalitarian principles (i.e., merit, ability, effort, need, and tenure) as more just when allocation of a resource was presented in the positive framing manner (e.g., to deliver goods or to withhold bads) relative to presenting the exact same resource allocated in a negative framing manner (e.g., to deliver bads or to withhold goods). It is suggested that the way resource allocation is framed evokes favorable (or unfavorable) associations that cause people to judge the situation as more (or less) just.     

Press articles and influence processes: the different effects of incriminating information and crime story information on judgments of guilt

The present study examines how potential jury members' judgments are affected by two types of information provided by the media: (1) information that is directly incriminating for the accused and (2) crime story information, that is, information about the events of the crime but not directly pertaining to the defendant's innocence or guilt. Although the influence of directly incriminating information has been widely researched, the effect of crime story information has never been studied. Our objective was to test the hypothesis that incriminating information affects judgments directly, whereas crime story information affects judgments indirectly via the arousal of negative emotions. We did this by coding the two types of information in 78 press articles about a criminal trial heard in France. Participants (N = 312) were asked to read the articles and then indicate their anger arousal and give their judgment about the accused. The results support our hypothesis. We conclude by discussing the contribution of our findings to research into the media's influence on legal cases.     

论行政诉讼判决形式的重构——从司法权与行政权关系的角度分析

行政诉讼是人为的宪政制度设计的结果,行政权与司法权两种权力运作模式的目标截然不同,这是现实中司法权与行政权关系紧张的根源所在。正视司法权与行政权的差异性是行政诉讼判决形式改革的基础。在现有的裁判方式中,驳回诉讼请求判决应当全面取代维持判决,撤销判决中应规定重作判项,但内容不宜具体,履行判决应当根据不同情况来决定是否应规定具体的内容,变更判决范围不宜过大,确认判决的存在仍有必要。     

HOW JUDGES DECIDE WHETHER SOCIAL PARENTS HAVE PARENTAL RIGHTS: A FIVE‐FACTOR TYPOLOGY

Courts have issued conflicting rulings regarding the rights (e.g., custody, visitation) and responsibilities (e.g., child support) of non‐biological gay parents. This analysis establishes a typology of five factors that most commonly influence judges' decisions. These factors include: interpretation of parenting statutes, legislative intent, parental intent, legal documents establishing parenthood, and the child's best interests. Despite these common themes, there is still much discrepancy among court rulings. Based on this analysis, there are steps parents can take to protect their legal rights and living arrangements. Finally, policy suggestions are offered for courts and lawmakers. These legal actors can take steps (e.g., clarifying statutes) that would provide certainty for families in case of parental separation or the biological parent's death.     

Policing Identities: Cop Decision Making and the Constitution of Citizens

We examine police decision making by focusing on police stories and drawing together contemporary thought about identities and police subculture. Our inquiry suggests that police decision making is both improvisational and patterned. Cops are moral agents who tag people with identities as they project identities of their own. They do engage in raw forms of division or stereotyping, marking some as others to be feared and themselves as protectors of society, while exercising their coercive powers to punish "the bad." Due, in part, to the many ways that they identify themselves, cops also connect with people as unique individuals, including individuals whose categorical identities (e.g., drug dealers) put them at the margins of society. Rather than using their coercive powers to repress these individuals, cops infuse them with certain virtues (e.g., good family men) while cutting them breaks. As they complicate representations of themselves, cops also project complex notions of law and legality. Moral discourse seems to infuse their judgments, while they invoke law strategically as a tool to enforce their moral judgments.     

Elasticity in evaluations of criminal evidence: Exploring the role of cognitive dissonance

Purpose. Previous experiments have demonstrated asymmetrical scepticism in investigators' judgments of criminal evidence – evidence inconsistent (vs. consistent) with the dominant hypothesis about a case is judged as less reliable. In addition, some types of evidence (e.g., witness testimony) are more susceptible to asymmetrical scepticism than others (e.g., DNA evidence), indicating varying degrees of elasticity. This article proposes that inconsistent evidence arouses cognitive dissonance, and that the dissonance can be reduced through either asymmetrical scepticism (for high‐elasticity evidence) or belief change (for low‐elasticity evidence). The hypotheses are tested in two experiments. Methods. In both experiments, law students made a preliminary judgment about the guilt of a suspect in a homicide case, and subsequently received a piece of DNA or witness evidence which was either consistent or inconsistent with the preliminary judgment. The extent to which participants changed their guilt judgments, judged the additional evidence as reliable, and felt dissonance served as the main dependent variables. Results. Inconsistent (vs. consistent) evidence did arouse stronger dissonance, but only for witness (and not DNA) evidence. Experienced dissonance (Experiment 1) and dissonance reduction (Experiment 2) accounted for the effect of the evidence on changes in guilt judgments, but not for the effect on reliability judgments. The greatest dissonance reduction was observed among participants who received inconsistent witness evidence but did not change their guilt judgments accordingly. Conclusions. It appears that dissonance plays a significant, although complex, role in investigative judgments of guilt and reliability. Alternative dissonance‐reducing mechanisms that can account for the findings and practical implications are discussed.     

The biasing impact of pretrial publicity on juror judgments

This study examines three previously unexplored aspects of the biasing impact of pretrial publicity. First, this study tests the differential effects of several different types of pretrial publicity on juror decision making. Second, this study explores the impact the presentation of trial evidence has on biases created by pretrial publicity. Finally, the study explores the psychological processes by which pretrial publicity effects may operate. Results indicate that pretrial publicity, particularly negative information about the defendant's character, can influence subjects' initial judgments about a defendant's guilt. This bias is weakened, but not eliminated by the presentation of trial evidence. Character pretrial publicity, and both weak and strong inadmissible statements appear to operate by changing subjects' initial judgments of the defendant's guilt. This initial judgment then affects the way subjects assess the evidence presented in the trial and the attributions they make about the defendant. Prior record pretrial publicity appears to have its effects by influencing subjects' inferences about the criminality of the defendant and this is related to posttrial judgments.     

Evaluation and integration of eyewitness reports

This study examined how mock jurors assess eyewitness credibility and integrate these assessments with judgments of probative value in simple, corroborating, contradicting, and facilitating inference structures. Subjects listened to an audiotape of a fictional, theft trial. In Experiment 1, contrary to prior research, amount of detail in the target witness's testimony did not influence perceived credibility. In addition, a normative Bayesian rule poorly described subjects' integration of the evidence. A rule that combinedp(event/guilt)weighted by credibility better described the judgments. Experiment 2 was designed to identify variables that affect credibility, given that amount of detail did not. Perceived credibility of the target witness was affected by the credibility of a second witness, and the nature of the effect depended upon the type of inference structure., The results of Experiment 3 suggest that an additive version of the decision rule describes judgments of guilt better than an averaging version.This article is based upon a doctoral dissertation submitted to Indiana University. I would like to thank my advisor, N. John Castellan, Jr., and the other committee members: Igor Gavanski, Margaret J. Intons-Peterson, and Steven J. Sherman. I also wish to thank Janet Magnuson for serving as legal advisor; Kelvin Bartel, Todd Dukes, Justin English, Katherine Harmening, Diana Heise, Nancy Lightfoot, Brigette Oliver, Chris, Reintz, Doug Smith, and Julie York for helping to prepare audiotapes; Tamara Levinson and Sandra Vitous for helping with data collection; and two anonymous reviewers for providing useful comments on an earlier version of this paper.     

The effects of procedural aspects and outcome salience on procedural fairness judgments

The effects of process control and decision control on procedural fairness judgements are examined with regard to the procedure used by commercial banks in granting business credits to entrepreneurs. Male and female entrepreneurs with experience in requests for business credits were interviewed about several aspects of the procedure for granting business credit. Respondents had either a positive or a negative experience with credit granting (i.e., the request was or was not rewarded). The outcome-oriented and the procedure-oriented explanations for the effects of process control on procedural fairness judgments are discussed. The results show that, contrary to expectation, process control had no effect on the procedural fairness judgments. On the contrary, perceived seriousness of treatment, as well as the predicted effects of decision control, did influence procedural justice judgments. Moreover, some support was found for the contention that seriousness of treatment functions as precondition for process control effects (Tyler, 1987). Neither the outcome-oriented, nor the procedure-oriented explanation could fully account for the findings. It is assumed that the specific aspects of the situation are responsible for the results, indicating how important the situational context is in research concerning procedural justice.     

Fetal Alcohol Spectrum Disorder (FASD) and the Role of Family Court Judges in Improving Outcomes for Children and Families

Fetal Alcohol Spectrum Disorder (FASD) is a physical disability that is 95% underdiagnosed and 40 times over‐represented in juvenile justice. Prenatal alcohol and other drug exposure causes brain damage that affects behaviors, e.g., poor judgment, impulsivity, difficulty learning from experience, and difficulty understanding consequences, leading to multiple diagnoses such as Attention Deficit Disorder, Conduct Disorder, Oppositional Defiant Disorder and Emotionally Disturbed. FASD is an invisible physical disability; most people with FASD have no observable physical characteristics. The courts are in an important position to increase awareness of this problem by simply asking whether FASD is a factor that needs to be considered. The purpose of this article is to support increased recognition and efficacy of services for people with FASD in the legal system. Sections include: (1) Overview of FASD diagnostic criteria and current terminology; (2) Exploration of FASD as a physical disability with behavioral symptoms; (3) Case example illustrating common patterns of behaviors in children and adults with FASD without identification and improved outcomes following identification and implementation of appropriate treatment; and (4) Recommendations for family court judges.     

Battered women who kill their abusers: an examination of commonsense notions, cognitions, and judgments

It has been argued that battered women who kill their abusers represent a special class of defendants being unfairly treated in the legal system. As a result, commentators have argued for reforms to permit the judicial system to respond more fairly. Researchers have investigated the influences of these prescribed legal modifications and the possible influence of various demographic and psychological factors on legal reforms. However, social scientists have not yet asked some fundamental, psychological questions. Is the law consistent with what society believes is right and just? Is there a commonsense notion of justice in these cases? What factors constitute cognitive decision rules and influence judgments in cases of battered women who kill their abusers? This study uses a basic, psychological method to identify psychological factors that are important in judgments regarding battered women who kill and to better understand commonsense notions of justice in these cases.