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

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Presentation on theme: "Clare Cochrane Centre for the Study of Emotion and Law Psychology and the law: Decision-making and the Science of emotion."— Presentation transcript:

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

2  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?

3 Emotion and law

4 “Legal actor” approach How the performance of particular legal actors – claimants / appellants, decision- makers / adjudicators – is (and sometimes should be) influenced by emotion

5 Common sense

6 Common sense: Not common! Based on experience “a window that judges try to look through, but … it is really a mirror”... Regina Graycar, 1991

7 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

8 Assumptions

9 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)

10 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

11 Assumptions study: Conclusions There: How others behaveHow individuals and families in trouble behave How authorities behave Here: The asylum systemAppellants Other professionals / other actors A truthful accountDemeanour Consistency

12 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

13 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)

14 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

15 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]

16 Conclusions assumptions subjective inconsistent in line with empirically established knowledge?  Hypothesis testing  systematic reviews – e.g. behaviour after rape  test hypotheses – e.g. consistency

17 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’

18 Breadth of evidence

19 “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

20 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

21 Memory From the Freud Museum, Susan Hiller

22 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?

23 How memory works Credibility – schemata system; updateable Consistency – schemata for repeated events Accuracy – retention interval; recall of facts, semantic memory

24 How memory fails Specificity – retrieval system; overgeneral memory & depression Emotion – emotional arousal & disorders (PTSD) Culture

25 Evidence into practice Marjorie Nshemere Ojule, Ugandan refugee Became trustee of Women for Refugee Women

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


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