NPR picks up on recent research about the relationship between facial appearance and sentencing. (Full study here.)
Individuals who are deemed to have untrustworthy faces are significantly more likely to be on death row compared with other people convicted of murder, according to a study published Wednesday in Psychological Science. Inmates thought to have trustworthy faces, however, have a higher chance of receiving the more lenient punishment of life in prison.
“Facial trustworthiness is a significant predictor of the sentence people receive,” says John Paul Wilson, who led the study and is a social psychologist at the University of Toronto.
They got lots of mugshots of those convicted of Murder in Florida, and got large numbers of people to rate those photographed as “trustworthy” or “untrustworthy.” Sue enough, those judged to have trustworthy faces were more likely to have been sentenced to other than death. To see if those with more heinous crimes/backgrounds were just more likely to have “untrustworthy faces” the researchers then got photos from the Innocence Project of people who had been exonerated. As the study abstract reported.
“[W]e found that the link between trustworthiness and the death sentence occurred even when participants viewed innocent people who had been exonerated after originally being sentenced to death.”
While death penalty outcomes are surely highly likely to be related to perceptions of character, many other decisions made by fact finders are also likely to be subject to the same kind of bias. We believe those we think are trustworthy.
How would we try to deal with this? Do jurors need special training in avoiding summary conclusions? Should attorneys we allowed to make arguments using this kind of research?
And, what about self-represented litigants, who are seen most directly by fact finders and judges, and who do not receive the benefit of the implicit “vouching” that those with clients receive?
Note: Florida is very unusual in that in its death penalty procedure the jury recommendation is only that, and the judge makes the final decision. Moreover, the jury makes its recommendation by majority vote, not unanimity. We are told that the judge rarely does other than follow the majority vote. Its really speculative to try to figure out the impact of this proedure on results. (It may also be that Innocence Poject photos may be from more than Florida.)
Richard Zorza's Access to Justice Blog 
Jim, I cannot “speak” to your idea of witnesses testifying through transcripts. But a quick phone call might demonstrate how a voice can be misrepresenting, too. I sound like I am eleven years old on the phone. Unless I have a cold. Then I sound like a 9 year old with a smoking habit. It is nice when telemarketers call and I can honestly answer, “No, my mommy and daddy can’t come to the phone right now.”
If I were to testify behind a screen, my voice might lead jurors to discount what I say in favor of a defendant. If I were to testify behind a screen as crime victim, the jurors might be less objective than they would be if they saw me.
The testing of an hypothesis requires both process and discipline. The process is to establish a testing system which should be number based, unbiased ( or with bias distributed) and repeatable. Having arranged the mechanics which , of course , can get very complex ( such as in Randomized Controlled Trials – RCTs ) the experimental phase can last a long time. Even with all these features it is worth while to predict an outcome based on current knowledge or even from experiential intuition. So, having greatly simplified hypothesis testing in science one would predict , in regard to the question raised in this blog , that legal outcomes are influenced by perceived ” facial trustworthiness” Of course it is !! How could it be otherwise??
The first impressions effect is powerful as we know from every day living. Our supercomputer interpretive brain responds to first meetings in an amazingly complex fashion. Why do we instantly like some people at first words or even at first glance. How often do our first impressions and instincts prove right ?? My wife for example is rarely wrong in her intuitive response . One of my Achilles heals is that I can be taken in by con-men ( or women!!) gamesmanship.
When people go for an interview they ” dress up “, they may practice their elevator speech, they may look up the person’s CV to understand possible points of connection. All these activities geared to the management ( manipulation) of ” first impressions”.
These maneuvers are not possible in the legal/court setting for witnesses. The cliché of “don’t judge a book by its cover” is very often all that the jury , judge or magistrate can go on when deciding if a person is trustworthy or not. As a non-lawyer, I have thought that one of the functions of the attorney advocates was to be aware of these issues and biases and for them to do their best to have their client represented fairly. But that may just be a pipe dream in the messiness that we see in dramatizations every day on screens of all sizes.
Perhaps it is time for alternative methods of conflict resolution to be seriously studied in which truth and the broader public interest is the client and the actions and interests of individuals are judged in this context. Where there is shared culpability there should be shared responsibility. How rarely is “winner takes all” the right societal outcome??
This reminds of the old use of physiognomy (face) and phrenology (head shape) in19th century police investigations.
One way of looking at all this is that slowly, research is showing the unreliability of human evaluaton, and also the reliability of data drien judgments. At some point do the lines cross?
Hi, Richard, my understanding is that this research dovetails with a bunch of other stuff out there on human being’s horrible inability to tell when someone (such as a witness) is telling the truth by the person’s demeanor. I have not read much of this research myself, but as described to me by people who do, we humans pretty much have no ability at all to tell when folks are lying. We would probably do better at detecting falsehood by reading a transcript as opposed to watching a person testify live. Of course, our evidentiary structure has this precisely backwards (thus the spectacularly idiotic phrase, “demeanor evidence”).
Your post also dovetails with research I have read, which how we human beings frequently need to be blinded to irrelevant characteristics. If we are not so blinded, we take the irrelevant characteristics into account. A famous paper on this subject concerned orchestral musicians; the upshot is that when orchestras switched from auditions in which judges could see musicians as they played to auditions in which the musicians played behind screens, the fraction of female musicians hired skyrocketed.
Surely the orchestras have the solution to this problem for us? Have all witnesses testify behind screens? Or, better yet, have them testify at depositions, and then hand transcripts to jurors? (If you’re Justice Scalia, the Confrontation Clause might demand that the defendant be allowed to see the witnesses testify. But I’ve never heard that the Confrontation Clause demands that jurors be allowed to see witnesses testify.)