Clare Cochrane
Centre for the Study of Emotion and Law
Psychology and the law:Decision-making and
the Science of emotion
Emotion and law – not an odd coupleHow common is ‘common sense’?The assumptions judges makeBreadth of evidenceWhat’s the point of memory?
Emotion and law
“Legal actor” approach
How the performance of particular legal actors – claimants / appellants, decision-makers / adjudicators –
is (and sometimes should be) influenced by emotion
Common sense
Common sense:
Not common! Based on experience “a window that judges try to look through, but
… it is really a mirror” ... Regina Graycar, 1991
Empirical evidence:
Scientific method: testing hypotheses with replicable methodology and publishing in peer-reviewed journals
empirical studies – e.g. consistency; disclosure medico-legal / psychology reports – cite psychological
literature work with lawyers – cite psychological literature Inform decision makers & policy makers
Assumptions
How do judges judge?
the belief [is] that judges and juries are thoroughly knowledgeable about ‘human nature’ and that no more is needed. They are, so to speak, their own experts on human behaviour
Justice Bertha Wilson, Australia
What assumptions about human behaviour underlie asylum judgements? (Herlihy, Gleeson, Turner, 2010)
Assumptions study: Method
determinations recruited from law firms assumptions emerge from the data
coding structure defined, validated, developed and tested
categories from coding framework inductive (data-driven) thematic analysis
Herlihy, J., Gleeson, K. & Turner, S. 2010
Assumptions study: Conclusions
There: How others behave How individuals and families in trouble behave
How authorities behave
Here: The asylum system Appellants
Other professionals / other actors
A truthful account Demeanour
Consistency
There – how others behave
Family decisions after/during trauma
Her husband sent her to this country ahead of anyone in his own family, including his sister who had been raped
Reasonable behaviour
I do consider it implausible that a family in fear, on seeing a man throw something over the fence and into their garden … would go to investigate it
Would I behave like this?
I do not find it credible that a public prosecutor who did not know the appellant at all would swear at him, at Kurds generally and at the appellant’s mother
Reasons for Refusal
“It is considered wholly implausible that the authorities would continue to torture you every day for three months if you had not been able to tell them where your brother was …”
(Judgment reviewed by
United Nations High Commission for Refugees, March, 2006)
Here – the asylum process
Rules of the asylum procedure
we did not find it credible that if the appellant had fled [his country] in fear of his life… that he would have made no effort to seek asylum when he arrived
Disclosure the appellant denies having slept with the sponsor,
which the sponsor says has occured she would have mentioned this earlier
Other professionals’ judgements
it is the appellant’s representative who suggests the appellant sees a psychiatrist, but not until three months after the appellant’s arrival
Telling the truth
Detail given that rape is such a serious thing to happen to any
women, I would have expected a raped person to know when they were raped. This is not the type of event which I would expect a person to forget about or confuse
there was a texture and richness to the details of her evidence that indicates this was true
Consistency
[he] was able to withstand a cross examination from Mr. H that lasted for over one hour without any serious discrepancies coming to light
Demeanour:
[having] the opportunity of observing the appellant [allows the conclusion that] his behaviour supports his assertion [of being gay]
Conclusions
assumptions
subjective
inconsistent
in line with empirically established knowledge?
Hypothesis testing
systematic reviews – e.g. behaviour after rape
test hypotheses – e.g. consistency
Deciding refugee status a difficult job
complex public policy and public attitude context
Making critical decisions with very limited data witness statements ? corroborating documentation ?
Country information + credibility
Understanding and giving weight to ‘expert evidence’
Breadth of evidence
“In the case of country evidence, expert evidence can be evaluated against other material...”
“... in contrast, there will be no similar breadth of evidence to assist in the evaluation of expert medical evidence.”
Barnes, 2004
Breadth of evidence
Psychology of Seeking Protection
On Normal memory Traumatic memory Disclosure of distressing personal experiences The psychological effects of sexual violence The psychology of decision making The effects on evidence giving of all these
And more to explore
Memory
From the Freud Museum, Susan Hiller
Just Tell Us What Happened to You,
Herlihy J, Jobson L, Turner S, 2012
Function of memory: Social, directive, sense of identity Subjective – not a video replay Reconstructive / updateable Influenced by the context of recall…
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What is memory for?
How memory works
Credibility – schemata system; updateable Consistency – schemata for repeated events Accuracy – retention interval; recall of facts,
semantic memory
How memory fails
Specificity – retrieval system; overgeneral memory & depression
Emotion – emotional arousal & disorders (PTSD)
Culture
Evidence into practice
Marjorie Nshemere Ojule, Ugandan refugee Became trustee of Women for Refugee Women
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Resources
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