Clare Cochrane Centre for the Study of Emotion and Law

Psychology and the law: Decision-making and the Science of emotion Clare Cochrane Centre for the Study of Emotion and Law

Emotion and law – not an odd couple • How common is ‘common sense’? • The assumptions judges make • Breadth of evidence • What’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 • 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

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

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 ofall these • And more to explore

Memory From the Freud Museum, Susan Hiller

What is memory for? 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…

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 NshemereOjule, Ugandan refugee Became trustee of Women for Refugee Women

Resources All of our papers and latest news on research, training and presentations can be found on www.csel.org.uk

Clare Cochrane Centre for the Study of Emotion and Law