I’m reading about a trial (I won’t link to it because it is in fact a case where the person is clearly guilty of a horrific crime, but that’s not relevant to my remarks here) where a prosecutor said, during sentencing, that the defendant’s lack of face expression showed he had “no remorse, no feeling” about what he’d done.
I hate this so much. It assumes for one thing that what’s happening on the face accurately reflects what’s going on inside. It also ignores the distance that usually exists between the crime and the sentencing phase of a trial. It also ignores the inadvisability of encouraging defendants to put on some kind of act. It just basically all around interferes with clear thinking on the jury’s part.
Has there ever been a push to somehow bar comments or arguments like this from consideration at this stage in a trial?
Yes, I think there’s a big problem with it. A few obvious reasons:
People who have been falsely convicted would be expected to not actually show remorse, as they can’t be sorry for something they didn’t do or someone they didn’t hurt. If they aren’t actually guilty, one would expect that they aren’t likely to be as dangerous as the charges suggest and imposing a longer sentence would not actually help protect society or reform the person. So the normal-looking guy sitting in the defendant’s chair might not be a sociopath who can murder little children all day without being concerned over his behavior - he might be an ordinary guy that somehow got his DNA in the wrong place.
People who believe they are (or actually are) innocent, or who know that they are guilty but are not actually sorry, could be subtly encouraged to put on an act of false remorse to move the court (literally and figuratively). That makes a mockery out of the criminal justice system, which should be based on accuracy and honesty.
Some people just show remorse in more physically evident ways. Lots of people can cry at the drop of a pin and can give the most heartrending speeches at a moment’s notice. Some people are just emotionally stoic. That doesn’t say anything about how sorry they really are inside or how likely they are to end up back in court over new charges. If I miss a goal at work, I don’t cry and beg for forgiveness and promise to amend my ways. I say yes, you’re right, that didn’t turn out right. Got any ideas on how to improve TQE quality above 80% while maximizing billable hours and filing fewer than 5 Technical Support Requests per 30 day period and following Six Sigma best practices and the District 4 Standard Operating Procedures and Policies for selection of appropriate TPS cover sheets? I found a plan that might work, but it requires use of the High Energy Supercomputing Cluster and you have to be a Level 3 manager or above to authorize use of that system. Do you think we can talk to Bill and get that approved?
I don’t know, I think it’s pretty hard to feel a person with no remorse isn’t going to reoffend. Failure to do so leaves them looking disconnected from the pain and suffering they have caused. That’s a slightly monstrous characteristic in most people’s eyes, I believe.
Besides I don’t see a lot of difference between this and when a biker shows up to court with his hair cut short, his beard gone, his tats covered, in a suit and tie!
If the defendent is too wooden to manifest emotion I’m not sure other human beings can really overlook that, to be honest. If you can’t manage an ‘I’m sorry’, than you shouldn’t be too surprised that people are less then forgiving. Juries and judges being people, and all.
So are we to just take for granted that someone with tattoos and a beard that rides a motorcycle is guilty solely because he has a beard and tattoos? Could be just that stereotypical thinking by a jury of “his peers” that had him put forth a “clean cut” persona to try to get a fair assessment of the facts.
Yeah, no one said that, or implied that. But don’t let that stop you, have at it!
It was a comparison between someone altering their appearance to garner more sympathy, and the reverse, someone who can’t be arsed to make even the slightest attempt to garner sympathy.
But, I’m sure you knew that. Enjoy your knee jerk!
But the question of whether a person takes actions to garner sympathy is completely separate from the question of what punishment that person deserves.
The expectation that someone on trial should show remorse (whatever that means) is a presumption of guilt.
I know the OP said the person on trial, or being sentenced, is “clearly guilty” of a horrific crime, but nobody on trial should be thought of as “clearly guilty” until a verdict has been reached. Sentencing, of course, is different, and guilt is assumed at that point.
I’m a bit confused, though, because I thought (and perhaps someone will correct me here) that a jury is not involved in sentencing in anything other than death penalty-eligible crimes. Am I wrong?
Are we now pretending that appearance and general attitude are not factors in trial or sentencing?
Yes, justice should be immune from even these influences, but unfortunately it’s administered by human beings. Human beings are rarely capable of reaching that ideal.
Which would kind of be evident in the transformation in appearance and attitude between being booked and being in court. Which can be witnessed on any day, in any courthouse.
Are we supposed to pretend they’re consistently doing so because it never works? How silly! Of course it works. Not for nothing are the most rabid defendants seen being docile and obedient before judge and jury.
At sentencing, given that there is a range of possible punishments, what factors SHOULD be considered when deciding where in that range you wind up?
I’d say that remorse, an appreciation for the severity of the situation, the overall demeanor of the defendant, are fair game. Perhaps not as important a factor as the factual details of the crime itself, but it’s reasonable to consider it.
If we really want justice to be ‘blind’ why not blind the jury to seeing what sex, race etc, the defendant is? Just let them see any visual evidence, all the rest, they just hear. What the hell, the judge and gallery too!
I wouldn’t be opposed to something like this. There are cases that would present difficulties for the approach, but I can’t see anything wrong with the idea in principle.
I am coming from an assumption that since this particular indicator of “general attitude” is very unreliable and prone to manipulation, this particular indicator shouldn’t be taken into account in determining a sentence.
How is this relevant?
I am really having trouble understanding the relevance of these comments. When has the fact that it is always difficult-to-impossible for people to behave ideally had any relevance to the specifications of just what ideal behavior consists in?
Let me come at it from another angle. Can you state for me what view you have that you think I am challenging?
Let’s make sure we’re all answering the same question. The OP said “during sentencing”. At least under US law, that means guilt has already been legally established. We are NOT discussing guilt versus innocence and how the defendant’s appearance or demeanor might affect that determination.
We ARE discussing, or are trying to discuss, whether or how the defendant’s appearance or demeanor should or does affect the sentence handed down for the crime he/she is already found guilty of.
IMHO, this raises 2 meta-questions which I’ve raised before in related threads. Are we as a society trying to make the punishment fit the crime, or make it fit the criminal? And to what degree is the sentence about retribution for the crime just adjudged versus being about preventing any future putative crimes he/she may commit?
We as a society do not have well-argued & well-thought out formalized answers to my questions. As a result, various code laws, sentencing guidelines, court practices, and popular opinion are all over the map on what we are trying to accomplish and how we’re going about it. As well there are different answers in different jurisdictions all over our country, much less across the rest of the so-called Western world of broadly similar legal systems.
After we unambiguously establish what we’re trying to accomplish in any particular jurisdiction, then we can start to discuss how best to do it.
Until then, we’re just lizard-braining some compromise between empathy and revenge.
More specific, I think, is the question of whether a lawyer–prosecution or defense–should be allowed to refer to or make implications about the defendant’s current appearance or demeanor while speaking to the jury.
I would say that this behavior is inappropriate. Realistically, the jury is probably going to be influenced by these factors to some extent, but I don’t think they should be encouraged to take them into account. Indeed, I think it would behoove the jurors to try to resist such influence. Were I a judge, I might even make that part of my jury instructions in some cases.
Maybe, but given that an intelligent remorsless culprit will display remorse (and wear a tie) because it’s in his best interest…
I too I’m bothered by this constant emphasis put on whether or not the defendant is showing remorse. Not because whether or not he feels remorse is important but because anybody can say “I’m so truly sorry” and it proves nothing.
The comment of robert_columbia reminds me of the second to last man who was executed in France (for child murder), and whose guilt is still in doubt. The jury (and journalists, etc…) was notoriously put off by his distant, haughty and remorseless attitude during his trial, and it’s often said that it was the main reason why he was sentenced to death (death sentences being rare in France even when the death penalty existed). Now obviously, if he wasn’t in fact guilty, you can hardly fault him for not showing remorse. Nevertheless, it seems it costed him his head while a man who wouldn’t have disputed his guilt but said how remorseful he was (regardless of what he was actually feeling) might still be alive today (and possibly free).
I’ve never felt a single judge was a good system for a serious crime. There should be a minimum of three judges, who otherwise don’t get along, in all serious cases.
I actually like your idea, the only issue I can think of it where the defendants appearance does matter, gang tattoos or scars from knife fights(granted rare in the modern day) but even then those aren’t linked to the crime they are accused of it just relates to their history of behavior.
It assumes that the defendant was guilty and should have appeared guilty during the guilt phase of the trial. Absent some cackling evil gleefulness throughout the trial by the defendant it assumes that the defendant should have incriminated himself during the guilt phase.
I’m pretty sure it would be a problem in many cases. To begin with if there are visual evidences, like a video tape. Also wrt testimonies (“does the defendant look like the original description of the witness?”), or factual elements (“could the defendant have carried the body to the lake”?).
But yes, it would avoid a bunch of issues, like the jury deciding on the basis that some guy is more credible than some other, which I’m pretty sure is the basis of a very large number of verdicts (someone recently made this point wrt to rape being typically “his word against her word”, mentioning that the credibility of the parties is of the upmost importance. I think it shouldn’t be. People just can’t be trusted with determining that. Or whether someone is actually remorseful).