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The construction of objectivity - An international perspective on the emotive-cognitive process of judicial decision-making

Periodic Reporting for period 2 - JUSTEMOTIONS (The construction of objectivity - An international perspective on the emotive-cognitive process of judicial decision-making)

Reporting period: 2020-03-01 to 2021-08-31

While research from several disciplines show that rational decision-making includes cognitive as well as emotional processes, and that emotion management is part of legal practice generally, empirical studies in real life situations showing how emotions impact the decision-making process still remain to be done. The JUSTEMOTIONS project fills this gap by studying and comparing the emotive-cognitive components of legal decision-making in criminal cases in different legal systems.
For people to comply with the law they must trust the judicial system to uphold rational and objective justice; trust that the courts make unbiased and impartial decisions. Objective decision-making is important both for the individuals affected by the decision, and for the public reproduction of trust in our courts. Therefore, objectivity can be seen as a foundation for the rule of law.

However, research has shown that the conventional legal understanding of objectivity as “pure reason”, without body and emotion, is problematic and builds on a false dichotomy between rationality and emotion. Rational decision-making requires facilitating emotions, for instance interest in the task and motivating emotions, such as professional pride in correct procedures and distaste for waste of time, as well as the ability to ‘feel’ the consequences of alternative actions. For legal professionals this means that objective decision-making relies on emotional information and that own emotional experiences influence for example how a person attributes blame.

Through a comparative and multi-method qualitative design, including court observations, interviews, and shadowing of legal professionals, the JUSTEMOTIONS project study the decision-making process from prosecution, lower court, to the court of appeal in three countries: Sweden, USA and Italy. These countries represent different legal systems (common and civil criminal law) and vary in emotional expressiveness (e.g. the Swedish subtle emotional regime versus the more expressive Italian). By contrasting decisions of three crime types – fraud, domestic abuse, and homicide – in different legal instances and in different countries, we can identify and describe common features of the decision-making process based on actual practice.

This JUSTEMOTIONS project disentangles how emotions come into play in a rational process that we have previously understood to be exclusively cognitive. We secure important theoretical clues into the subtle emotions, such as curiosity, doubt and certainty, which undergird knowledge seeking and evaluation, and disclose how the cultural context influences emotions in settings that all share the ideal of un-emotional objectivity. The project furthermore develops a powerful and stringent methodology that will lead to concise and rich descriptions of decision-making in real life practice. The broad social relevance of the JUSTEMOTIONS project lies in its clarification of the tensions between common sense justice and legal justice, a tension that in some cases has brought to question the legitimacy of the legal system.
Due to delays caused by the pandemic, fieldwork is still in progress while coding schemes have been developed and preliminary analyses of data are on its way.

First, we have developed a theoretical toolkit for comparative data analyses. Wettergren and Bergman Blix have published one chapter on “Comparing Culturally Embedded Frames of Judicial Dispassion” where we argue that the Western legal systems share an ideal of emotionless law, but that the differences in how emotions nevertheless seep into the legal sphere depend on how emotions are understood and allowed in the larger national contexts. In another conceptual article “Making Independent Decisions Together: Rational emotions in legal adjudication” Bergman Blix shows that the prescribed and strict procedure of rational decision-making in court influences how emotions come into play. Different emotional processes are actualized at different stages and the legal professionals need to balance demands for independence and collaboration. A third conceptual article in progress continues the focus on the prescribed court procedure. Bergman Blix and Minissale show how the transformation of evidence in the form of stories into legal codes regulates emotional attunement with the narratives told and evaluated in court. Nordquist and Bergman Blix have a forth article in progress developing the concept of emotional capital to understand how status and authority can be both reproduced and challenged in the production and evaluation of evidence in court.

Second, data analyses so far have focused on individual emotions and emotional processes, such as sympathy and anger; and prosecutors’ and judges’ work to balance feelings of for example doubt and certainty in preliminary investigations, in trials and during deliberations. A second focus is on how growing professional experience influences prosecutors’ and judges’ emotion management in court.
The JUSTEMOTIONS project is the first to compare how emotion and cognition are intertwined in real legal decision-making in different countries and legal systems. The project will produce in-depth analyses of each country as well as comparisons across countries. The ethnographic approach with fieldwork in several countries allows for fine-tuned comparisons of cases and interactions in courts as well as analyses of how differences and similarities across countries are embedded in cultural and relational structures. This means that we can identify and characterize the influence of relational and cultural practices of the larger society in which the decision-making take place. Preliminary analyses show that features such as formality, morality, and independence can have different weight and enter at different points in the legal process across different countries or systems.

A major achievement in the JUSTEMOTIONS project is the unique data set that we have acquired and are still collecting. In particular, we have managed to gather empirical data from real life deliberations in both first and second instance courts, and, in Sweden, data from the confidential phase of preliminary investigations. By being able to combine observational data from hearings and deliberations with interviews with the legal professionals on these observations, as well as their written judgments and opinions, we are able to gain an exceptional in-depth understanding of how legal decision-making actually occur. Previous research on court deliberations to a large extent build on data from experiments and mock jurors. Gaining firsthand knowledge of the reality of deliberations by legal professionals will render unique contributions to this field of research.

The importance of investigating the role of emotions in the reality of legal professionals’ decision-making has become acute by the recent appeal of artificial intelligence (AI) and ‘big data’ in the legal sphere. AI appears to offer a less expensive, ‘efficient,’ and ostensibly non-emotional way of guaranteeing greater predictability and control over legal decision-making. This argument is based on the supposition that judicial and prosecutorial decision-making do not currently combine rationality and emotion in a productive, and well-integrated manner. As an add-on to the main project, and as a way to further tease apart the often implicit assumptions of how legal decision-making works, we scrutinize the ideal of legal decision-making in artificial intelligence (AI) from an emotion perspective. Bladini and Bergman Blix have one chapter in press ”The Judge Under Pressure - Fostering objectivity by abandoning the myth of dispassion” investigating the implicit assumptions of AI on the role of emotions in legal decision-making.

The influence of the pandemic on legal decision-making became an unexpected part of our fieldwork that prompted reflections by the legal professionals on previous tacit or taken for granted facets of their work. In this way, the pandemic can be seen as a natural experiment highlighting aspects of legal decision-making that would otherwise go unnoticed, such as whether witnesses wearing masks or examinations made via video link or telephone influence evaluation of evidence. We have added questions about how the pandemic has influenced the work of legal professionals for example through lockdowns and introductions of technological equipment. A master student is currently analyzing Swedish data and with all the countries involved, we plan to report the findings in one or two articles.