Remorse, Demeanor, and the Consequences of Misinterpretation

Abstract

Although there is a rich legal literature on whether remorse should play a role in the criminal justice system, there is little discussion of how remorse can be evaluated in the legal context. There is ample evidence that perceptions of remorse play a powerful role in criminal cases. Yet the most basic question about the evaluation of remorse has received little attention: is remorse something that can be accurately evaluated in a courtroom? This article argues that evaluation of remorse requires a deep assessment of character, or of the condition of the soul, and that the legal system may not be capable of such evaluation. At the same time, the article acknowledges that remorse is so closely intertwined with judgments of culpability, it may not be feasible to bar decision-makers from considering it. Assuming that evaluation of remorse is ineradicable, the question becomes: what can be done to improve upon an evaluative process riddled with error and bias?