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…

22

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

All of our papers and latest news on research, training and presentations can be found on

Resources

www.csel.org.uk