‘Impressed’ by Feelings-How Judges Perceive Defendants’ Emotional Expressions in Danish Courtrooms

Article
Social & Legal Studies
2019, Vol. 28(2) 250–269
‘Impressed’ by Feelings-
ª The Author(s) 2018
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How Judges Perceive
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DOI: 10.1177/0964663918764004
Defendants’ Emotional
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Expressions in Danish
Courtrooms
Louise Victoria Johansen
University of Copenhagen, Denmark
Abstract
Emotions constitute an integrated part of crime trials, but the evaluation of these
emotions is dependent on broader cultural norms rarely addressed by legal practi-
tioners. Previous research on emotions in the judiciary has also tended to under-
emphasize this cultural dimension of judges’ assessment of defendants’ emotional
expressions. This article presents an ethnographic study of Danish judges’ considerations
when they encounter defendants in court and get an impression of their behaviour,
emotional state and physical appearance. Combining theories about emotions with
intersectionality approaches, the article highlights the processes in which social cate-
gories are dynamically shaped through emotions. Judges’ assessments of emotions are
mediated through their own cultural understandings, and what counts as ‘appropriate’
emotion is dependent on how the defendant is culturally and systemically situated.
Keywords
Courts, embodiment, emotion, intersectionality theory, judges, social categorization
Corresponding author:
Louise Victoria Johansen, Faculty of Law, Centre for Studies in Legal Culture, University of Copenhagen, Karen
Blixens Plads 16, 2300 Copenhagen S, Denmark.
Email: Louise.Victoria.Johansen@jur.ku.dk

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Johansen
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Introduction
While the role of emotions in crime trials is still only ambivalently addressed by Western
criminal courts, one finds increasing research on judges’ and juries’ handling of emo-
tions in the courtroom (Bandes, 1999; Little, 2002). Particularly well researched are
issues of judges’ empathy (Bandes, 2009; Nussbaum, 1996) and the role of remorse in
sentencing (Weisman, 2014). Methodologically, most of this research has analysed
judicial decisions, particularly looking for ‘cues embedded in written opinions’
(Maroney, 2006: 132). Other research studies have gathered data about the importance
of defendants’ emotions for juror sympathy (Eisenberg et al., 1997–1998; Lynch and
Haney, 2015; Sundby, 1997–1998); and judges’ self-perception as professionals dealing
with emotions in the judiciary (Bergman Blix and Wettergren, 2016; Roach Anleu and
Mack, 2005). These inquiries provide new insights into juror perspectives and judges’
professional identity and handling of own and others’ emotions. Still, there is very
limited qualitative research on how cultural expectations influence judges’ assessment
of defendants’ emotional expressions during court hearings.
Taking this point further, the present article analyses how Danish judges assess
defendants’ emotions in the courtroom, and argues that this evaluation of emotions from
defendants’ utterances, facial expressions or bodily posture relies on a range of factors
and biases (Rachlinski et al., 2013) and implicit cultural expectations (Bandes and
Blumenthal, 2012).
Based on three qualitative fieldwork projects conducted between 2007 and 2014,
I gained insight into Danish judges’ evaluation of defendants’ emotional expressions,
and how judges to some extent found these emotions legally relevant in relation to
sentencing (Johansen, 2015).1 The observed cases were minor violence cases. Often,
the act of violence was so minor that it could potentially – but not automatically – lead to
a suspended sentence, and hence great emphasis was placed on the explanations and
emotional reactions of the defendant in the courtroom. Defendants’ emotional behaviour
constituted an important source for judges to establish what ‘kind’ of defendant they
were facing in each case, and by extension what decision-making options would be
relevant. By focusing on judges’ perceptions and categorizations, however, I deliberately
do not consider whether a specific defendant really ‘had’ or even expressed emotions
during a specific case.
The analysis focuses on the moments when defendant and judge were facing each
other during the interrogation of the defendant in the courtroom, and when the defendant
was sitting beside the defence attorney. Judges paid attention to defendants’ explanations
of emotions surrounding the criminal act and their present stance towards it; they also
noted how defendants sat on their chair, and to what extent they looked the judge straight
in the eyes. Thus, judges’ evaluation of defendants rested on language as well as non-
verbal behaviour, implying the interconnectedness of a linguistic and an embodied
emotional expression (Harding and Pribram, 2009).
After presenting the analytical framework as well as the ethnographic study and its
Danish context, the first part of the analysis describes how judges link between the
offence, the defendants’ emotional expressions, and their possible future behaviour. I
show that verbal expressions of emotions are expected by judges at certain, delimited

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Social & Legal Studies 28(2)
times during the trial, whereas defendants’ bodily attitudes are open for interpretation
during the whole trial. The second part of the article focuses on the ways in which
judges’ interpretation of these emotions is filtered through their own expectations about
gendered and cultural emotion. In the conclusion, I raise issues for further research.
‘Emotions’ in Legal Contexts
As noted by Susan Bandes (1999: 8–10), emotion theory constitutes a complex, inter-
disciplinary field, resulting in a lack of definition of emotion. Although there is a general
agreement that emotions form an integral part of decision-making in law (Bandes and
Blumenthal, 2012), there is less consensus as to the boundaries or even connections
between concepts such as emotions, language, body and cognition (Finkel and Parrott,
2006; Mulligan and Scherer, 2012).2 These debates suggest that the analysis of empirical
data as presented in this article must make its own theoretical premises clear, but cannot
possibly encompass the whole field. Accordingly, several theoretical choices and dese-
lections have been essential for my analysis and will be presented in the following.
The analysis merges two distinct theoretical approaches: a cultural studies approach
to emotions as defined by Harding and Pribram (2009) and an intersectionality approach
probing into junctions between age, gender, ethnicity and class as formulated by Cren-
shaw (1989, 1991) and Collins (2009). Theories about emotions have been criticized for
not taking embodied, social positioning into account (Harding and Pribram, 2009).
Conversely, intersectional theories have focused on structural inequality and generally
understated how social categories are also constituted through emotions (Lutz, 1990).
For analytical purposes, I use the concept ‘emotional expression’ to describe the way
in which judges link the defendant’s body and utterances with their emotional state and
future intentions. Although emotions appear intangible, they are conceptualized in this
article as the accumulation of what judges perceive when emotions are practised in court
through language, gestures, bodily postures and so on (Harding and Pribram, 2009). This
analytical approach to emotional experience aims at bridging several basic oppositions
through which emotions have often been viewed, such as mind and body, culture and
biology, individual and collective – distinctions that have also been criticized by other
researchers (Harding and Pribram, 2002, 2009; cf. Latour, 1999; Lupton, 1998). Instead,
the expression and perception of feelings should be understood at the intersection
between a physical, a linguistic and a specifically sociocultural expression (Harding and
Pribram, 2009). This helps us shift attention from a definition of emotions as something
people have to what emotions do (Ahmed, 2004), and how they function as social
practices in different settings. This embodied, emotional experience is interactive and
relational (Williams, 2009) in the sense that its meaning shifts according to social
situations and expectations within specific institutions. Danish legal actors often use
an ADHD diagnosis to place the defendant’s anger and violent actions within a com-
prehensive framework, but this is a new phenomenon that would not have made sense
15–20 years ago (cf. Moore, 2007; Valverde, 2003). Emotions, and the ways we interpret
them, must be seen as part of these collective cultural and historical experiences (Jaggar,
1989), contributing to the construction of particular kinds of criminal problems and
answers.

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Research has focused predominantly on extraordinary emotions such as anger or
remorse in a court setting, but as noted by Richards (2005) there is a range of ‘ordinary’
emotions more seldom addressed such as boredom, impatience or frustration. Accord-
ingly, also defendants’ expression of seriousness, indifference or even boredom is used
by judges to establish knowledge about past conflicts and future behaviour (Van
Oorschot et al., 2017), and equally influential on how – and if – judges understand the
displayed emotions. Danish judges themselves often told me how ‘one can understand’
or ‘it makes an impression’ about cases and defendants they seemed to relate to.3 It might
be mitigating for the defendant if the court understands his or her reactions in the moment
of crime or in court – but the contingency of this understanding...