How many Judge Judys are out there?
December 23, 2009 11:57 AM   Subscribe

Do judges actually make sentencing decisions based on a person's demenor?

It seems that judges will occassionally mention a defendant's demenor in court when explaining their sentencing decisions (whether the observations were made over the course of the entire trial or just on the day of sentencing).

I'd like to believe that the justice system is basically rational and objective, and that judges aren't running around playing Dr Phil thinking that they can look into a person's soul. I think people are basically bad at that; especially when the bias of a criminal conviction enters the picture.

Do judges actually make serious life-changing decisions based on peoples' appearance/facial expressions, or do they just use those observations to justify decisions that they arrive at more or less objectively?

Thanks!
posted by mpls2 to Law & Government (16 answers total) 1 user marked this as a favorite
 
I'm curious what judges you've heard say something like that. Having grown up with a trial lawyer as a father and having attended lots of sentencing hearings, I've never heard a judge mention that because, as you say, it's a HORRIBLE idea.

Television judges, however, are allowed to do and say whatever makes people feel like court is super dramatic.

Still, though, judges are human, and I doubt it's possible that their impressions of a defendant don't factor into their decision at all.
posted by nosila at 12:01 PM on December 23, 2009


Response by poster: Usually it's something about how the defendant doesn't look remorseful, or something like that. Sorry I don't have any examples.
posted by mpls2 at 12:04 PM on December 23, 2009


Gee, of course they do. Judges "judge," and frequently they must decide such things as the harshness of a sentence on their best guess as to whether a person sincerely regrets their crime or is capable or rehabilitation or whatever. It ought to work like that - somebody who, for instance, laughs during proceedings against him/her and shows no respect for court is probably a lot more likely to not be swayed by a relatively light punishment than someone who's obviously upset and embarrassed by being in court. That's a rational thing to believe.

It's not a perfect system. Subconscious attitudes about race, for instance, can make a judge more likely to harshly punish (say) an black person more than a white person. But your coldly objective way would be worse in the long run, and certainly - when weighed against the objectives of the legal system - be anything but rational.
posted by Dee Xtrovert at 12:06 PM on December 23, 2009 [2 favorites]


A defendant’s demeanor reflects on his character and is, therefore, a proper consideration for the court at sentencing. State v. August, 589 N.W.2d 740, 744 (Iowa 1999). For example, an unrepentant criminal should probably be sentenced more harshly than a repentant one. You see this at the federal level in the US Sentencing Guidelines where defendants will receive a reduction in sentence (called a downward departure) for acceptance of responsibility or genuine remorse, etc. The acceptance of responsibility provision is below; as you can see, the determination is fairly rational and objective and not merely the judge's whim.


§ 3E1.1. Acceptance of Responsibility

(a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.

(b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.

Commentary

Application Notes:

1. In determining whether a defendant qualifies under subsection (a), appropriate considerations include, but are not limited to, the following:
(a) truthfully admitting the conduct comprising the offense(s) of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which the defendant is accountable under § 1B1.3 (Relevant Conduct). Note that a defendant is not required to volunteer, or affirmatively admit, relevant conduct beyond the offense of conviction in order to obtain a reduction under subsection (a). A defendant may remain silent in respect to relevant conduct beyond the offense of conviction without affecting his ability to obtain a reduction under this subsection. However, a defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility;
(b) voluntary termination or withdrawal from criminal conduct or associations;
(c) voluntary payment of restitution prior to adjudication of guilt;
(d) voluntary surrender to authorities promptly after commission of the offense;
(e) voluntary assistance to authorities in the recovery of the fruits and instrumentalities of the offense;
(f) voluntary resignation from the office or position held during the commission of the offense;
(g) post-offense rehabilitative efforts (e.g., counseling or drug treatment); and
(h) the timeliness of the defendant's conduct in manifesting the acceptance of responsibility.

2. This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct.

3. Entry of a plea of guilty prior to the commencement of trial combined with truthfully admitting the conduct comprising the offense of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which he is accountable under § 1B1.3 (Relevant Conduct) (see Application Note 1(a)), will constitute significant evidence of acceptance of responsibility for the purposes of subsection (a). However, this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility. A defendant who enters a guilty plea is not entitled to an adjustment under this section as a matter of right.

4. Conduct resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may apply.

5. The sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review.

6. Subsection (a) provides a 2-level decrease in offense level. Subsection (b) provides an additional 1-level decrease in offense level for a defendant at offense level 16 or greater prior to the operation of subsection (a) who both qualifies for a decrease under subsection (a) and who has assisted authorities in the investigation or prosecution of his own misconduct by taking the steps set forth in subsection (b). The timeliness of the defendant's acceptance of responsibility is a consideration under both subsections, and is context specific. In general, the conduct qualifying for a decrease in offense level under subsection (b) will occur particularly early in the case. For example, to qualify under subsection (b), the defendant must have notified authorities of his intention to enter a plea of guilty at a sufficiently early point in the process so that the government may avoid preparing for trial and the court may schedule its calendar efficiently.

Because the Government is in the best position to determine whether the defendant has assisted authorities in a manner that avoids preparing for trial, an adjustment under subsection (b) may only be granted upon a formal motion by the Government at the time of sentencing. See section 401(g)(2)(B) of Pub. L. 108-21.

Background: The reduction of offense level provided by this section recognizes legitimate societal interests. For several reasons, a defendant who clearly demonstrates acceptance of responsibility for his offense by taking, in a timely fashion, the actions listed above (or some equivalent action) is appropriately given a lower offense level than a defendant who has not demonstrated acceptance of responsibility.

Subsection (a) provides a 2-level decrease in offense level. Subsection (b) provides an additional 1-level decrease for a defendant at offense level 16 or greater prior to operation of subsection (a) who both qualifies for a decrease under subsection (a) and has assisted authorities in the investigation or prosecution of his own misconduct by taking the steps specified in subsection (b). Such a defendant has accepted responsibility in a way that ensures the certainty of his just punishment in a timely manner, thereby appropriately meriting an additional reduction. Subsection (b) does not apply, however, to a defendant whose offense level is level 15 or lower prior to application of subsection (a). At offense level 15 or lower, the reduction in the guideline range provided by a 2-level decrease in offense level under subsection (a) (which is a greater proportional reduction in the guideline range than at higher offense levels due to the structure of the Sentencing Table) is adequate for the court to take into account the factors set forth in subsection (b) within the applicable guideline range.
posted by lockestockbarrel at 12:19 PM on December 23, 2009 [7 favorites]


Charles Manson is a good example. He was convicted of something like conspiracy to murder. He didn't - as far as has been proven - actually kill anyone. But he's served longer than some people who actually did kill . . . in large part because of his behavior and the judge's own sense of how rehabilitative he actually was (ie. not very.) Parole hearings do much the same thing.

I'm surprised at nosila's comments. I've attended court hearing in America and seen "real" court hearings on television (not "television judges.") Judges do this all the time. "Intent" is a serious factor in many crimes, and given that it's a state of mind, it has to be up to the judge's discretion to determine whether it exists, or to what extent.

A smaller example. I went away for three months and did charity work overseas. In the meantime, my driver's license expired. About a day after I returned to America, I was pulled over by the police for having a headlight out (I didn't know about it.) I was given two tickets - one for the headlight, which would be nullified if I had the headlight fixed within a week, and another for driving with an expired license.

When I went to court, I brought along with me my passport to prove I'd recently been out of the country, along with various documents to show I'd been doing charitable work overseas and prove I'd fixed my headlight right away, as well as having renewed my license the same day I received my ticket. I very politely explained my situation to the judge - and I was prepared to have to pay the ticket, as I knew I was technically guilty. I was respectful and genuinely contrite. He forgave both tickets.

A few people before me was a much younger guy who'd also been caught for having an expired license. His "crime" was no different than mine - an expired license is an expired license - only his had been expired for six months, and he came to court without any reason to explain why he'd been driving for half a year without a working license. Had he renewed his license? No; he claimed (not very believably) that he hadn't been driving since the ticket. He gave the judge a hard time, had a real "attitude" and clearly didn't have any respect for the court he was in. The judge made him pay his ticket.

I was personally horrified to have been driving without a license and was very sorry. This was obvious to the judge. I was polite and simply explained why I hadn't had my license renewed. (Additionally, though this should matter less, I bothered to be clean and properly dressed, unlike the other guy, who smelled and wore flip-flops.)

Personally, I prefer a world where demeanor and personal circumstances allow for some discretion beyond the "guilty equals x, no matter what" automaton world implied above. I also think judicial discretion should be there for unrepentant baddies to be punished more harshly.
posted by Dee Xtrovert at 12:28 PM on December 23, 2009 [1 favorite]


If this does happen, it happens less so, as sentencing guidelines seem to be getting more strict over time, thereby giving judges less discretion.

Do judges actually make serious life-changing decisions based on peoples' appearance/facial expressions, or do they just use those observations to justify decisions that they arrive at more or less objectively?

I don't think the actual answer fits into this dichotomy. For instance, I am positive that sentencing judges rarely make sentencing decisions on the spot. They usually deliberate over a number of factors, one of which would probably be their observations of a defendant during trial, partially including their appearance and facial expressions.

But some judges will absolutely establish harsher sentences if a criminal defendant pisses them off. Like if the guy threatens the victim of his family, lashes out at the jury, or doesn't take the proceedings seriously. And, I should think, rightfully so.

Your questions sounds like, do judges look at a defendant's face and try to analyze it to see if he deserves a harsher/lighter sentence, at the time of sentencing? I doubt it. If a defendant is smirking at his sentencing, he was likely smirking and treating the courtroom with disrespect throughout trial. If a defendant is crying, he was likely visibly feeling the weight of the trial on him the entire time.

Are there some judges that come out and think "I was going to sentence you to probation, but with that lack of remorse on your face, I'm going to give you 5 years"? Sure. Do all judges do that? No. Do a majority of judges do this? Doubtfully.

If the purpose of this question is to counsel defendants on how they should appear at sentencing, I don't think this is the right question to ask.
posted by jabberjaw at 12:35 PM on December 23, 2009


Anecdote: Back in college, a buddy of mine was charged with some minor statutory offense after he pissed off a cop, and he decided to go to court instead of paying the fine. I went along just to watch the show. I won't go into detail, but my friend wasn't very respectful to the judge and tried to grandstand as if he were on a court drama. The judge didn't like this at all, and he told him so in no uncertain terms, ultimately finding him guilty and ordering him to pay the minimum fine plus court fees. So while my friend's demeanor may not have directly impacted the sentence, the judge made it very clear that he thought my friend was a jerk and wanted to teach him a lesson.
posted by Faint of Butt at 12:39 PM on December 23, 2009


Judges use assessments of defendant's demeanor all the time in determining a whole host of things, and in my view it's not something to be concerned about.

I work in the Australian criminal courts, so there are some differences in procedure and terminology, but the basic methodology is transferrable. Any sentencing process is going to be comprised of some objective facts which have been accepted, however grudgingly, by the parties as correct. The judge has to consider the inherent gravity of the offences and any circumstances that might aggravate them. The judge will assess the defendant's 'character', which in strict legal terms is esentially your prior criminal history. This is done for two reasons, firstly to determine the extent to which the offender needs to be deterred from repeating the conduct and secondly as one of the factors in determining what the person's prospects of rehabilitation are.

The sentence that a judge arrives at should attempt to balance issues of specific deterrence (deterring the offender), general deterrence (sending a message to the community), rehabilitation, just punishment, protection of the community and so on.

The conduct of the defendant in court will have a bearing on how the judge assesses a number of these. Contrition and remorse are used as indicators of a person's moral system, acceptance of wrongdoing and likelihood of wanting to produce a meaningful change in their lives. But in my experience, you can't really make up much ground here, only lose it. Pretty much everyone looks sorry for themselves when they are sitting in the dock, so it's going to have to be a stunning example of in court demeanor that will score you some points here.

But carry-on from your client in court can certainly lose you major ground in sentencing. I've spent 15 minutes patiently explaining to a judge why it's unlikely that my client would re-offend against his ex-girlfriend only to have my client exclaim 'fucking junkie slut, I'll fucking kill her'. I think the judge was entitled to think that perhaps my submissions were unrealistic. I've prosecuted a serious case in the childrens court where two young guys had been charged with attacking some other gang members with machetes. Their counsel told the court that the boys had been terrified by their experience in custody and would never re-offend and had turned their back on gang involvement. The boys swaggered into court, laughed out loud at the description of the victim's injuries and flashed gang signs to their mates sitting in the body of the court. You bet the sentencing judge took that into account.

The bottom line is that I think demeanor is an aspect of the process. If the defendant's demeanor in court runs substantially contrary to what's been said on their behalf, then the judge will factor it in. But in any sentencing process there are other factors that must be considered, many of which are far more objectively determined.
posted by tim_in_oz at 1:05 PM on December 23, 2009 [5 favorites]


Judges shouldn't "play Dr. Phil," but federal judges receive training, for example, in how to read non-verbal cues in baby judge school (yes, that's what it's called) because it's an central part of what they do. The appearance of impartiality is important, but judges are not automatons and injecting facts other than the offense of conviction and the defendant's criminal history is critical to a just sentence and actually produces a more rational system. Not all defendants who commit the same offense should get the same sentence.

The circumstances and history of the offender and the offense are key federal sentencing considerations under the federal code and may manifest themselves in in-court demeanor. Imagine someone whose offense is a direct result of substance abuse, but who cleans up well and presents well in court -- it indicates that the person can potentially be rehabilitated. Now imagine someone with the same offense who comes into court having gone on a bender the night before -- he looks awful, maybe violated the conditions of his bond, is not taking the offense seriously, and the judge can see it. The federal sentencing system requires consideration of the circumstances surrounding the offense and the circumstances of the defendant. Arguing that the judge shouldn't notice demeanor fails to acknowledge that judges are human and that the judges are under a duty to be paying attention to it. That said, demeanor shouldn't be considered to the exclusion of all the other factors that are important to the sentence such as the seriousness of the offense and the defendant's criminal history.
posted by *s at 1:08 PM on December 23, 2009


The face to face encounter between defendant and judge is indeed very important, for a number of reasons. First, the information a judge gets before sentencing is concerned largely with the defendant's crime and prior criminal history. Defense attorneys will often provide more social and family information, but they, too, will not usually have detailed or in depth information. Letters from family members and friends do come in and are read, but rarely convey a huge amount more information. (If you are wondering about why judges don't get pre sentence reports from, for example, court staff or probation office staff, the answer is that courts have taken deep funding cuts in recent years, usually including axing these positions. If the defendant was tried or pled guilty before another judge, which happens quite often in large jurisdictions with specialized calendars for trials and pleas, the judge will also have not seen that defendant before.

So, a judge will have received and read prior information, but the information the defendant provides, including their demeanor and attitude, is critical. For example, a defendant who sincerely talks about the regret they feel for their offense, or explains their history of dealing with substance abuse, or simply is genuinely contrite or straightforward is going to seem like a much better candidate for treatment programs, rehabilitative programs, or probation than someone who is defiant, untruthful, or has an abusive attitude.

Of course judge's sentences, then, don't turn on demeanor alone, but demeanor is often a sentencing factor.
posted by bearwife at 1:19 PM on December 23, 2009


I wanted to point out, too, that Judge Judy hasn't been a judge for a long time, spent just four years on a criminal calendar in her judicial career, and differs -- for entertainment reasons, I hope -- very widely from the accepted standard under the judicial canons that judges should be patient, dignified and courteous.
posted by bearwife at 1:29 PM on December 23, 2009


As long as judges are human, their rulings will be subjective. And I'm not really sure that the alternative, whatever it is, would be preferable. It's important to maintain the illusion of objectivity though. If a judge even recognizes his/her own bias, that person ought to know enough never to speak of it or face being disbarred. The justice system operates under a façade of pure, dispassionate procedure, and is compelled to maintain that façade at all costs.
posted by The Winsome Parker Lewis at 2:23 PM on December 23, 2009


That first sentence should say "partly subjective." You can't ever fully eliminate bias, but you can try hard to minimize its influence on your verdict.
posted by The Winsome Parker Lewis at 2:24 PM on December 23, 2009


Yes, judges absolutely do consider a defendant's demeanor in handing down a sentence. I am a criminal defense attorney and, in my experience, a defendant's demeanor can be a deciding factor in the sentencing--when the defendant chooses to testify during sentencing, which is almost always.

With regard to sentencing, the judge (at least in my state) is the fact-finder, and the fact-finder may consider the demeanor of a witness in determining the witness's credibility. (I know that demeanor is considered relevant to credibility because model jury instructions, which tend to be an accurate statement of the law, usually include an instruction on credibility of witnesses, and "demeanor" is one of the factors listed that the jury is encouraged to consider).

Usually the defendant will testify at a sentencing hearing. Therefore, in such cases, demeanor is of critical importance, just as it would be for any witness.

If it were a case where the defendant sat silent during the trial, and chose not to testify during the sentencing hearing, demeanor should have no influence upon sentencing.
posted by jayder at 2:28 PM on December 23, 2009


I think it entirely depends on the personality of the judge. In the county where I practice in Oregon, there are four judges responsible for criminal matters. One of them is MUCH more likely to give harsher or more lenient sentences based on a defendant's demeanor. Cockiness can be the difference between community service and jail, or some jail vs. more jail. (It matters less where prison is an issue because sentencing decisions for lengthy prison terms are largely predetermined.) Contriteness and acceptance of responsibility can be a mitigating factor for lesser cases, but only to an extent. A defendant's demeanor doesn't matter much for the other three judges in the county, but man, if we're in court with that first judge, the guy better watch his Ps and Qs.
posted by Happydaz at 10:15 PM on December 23, 2009


As a lawyer (who is NYL, btw :) ) I was excited to give my $0.02 on this one, only to find that everyone before me has done a pretty good job of explaining the basic ideas. I'll only add that laws - and, accordingly, the amount of discretion vested in the judge - vary by state, and the way things work in your state may be (but probably aren't) somewhat different than what's been stated above.
posted by Shiva88 at 9:48 PM on December 25, 2009


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