Our system of justice is designed to be impartial and fair. But judges and juries are not robots. In any criminal case, the judge and jury will not only view the evidence with neutral eyes and ears but will also rely on “soft” skills such as intuition and biases. A perfect example of this is during the sentencing phase. When a defendant is convicted of a crime, the sentence he or she receives depends—perhaps too much—on the perceived remorse of the defendant.

We like to think that we are good at detecting the heart and minds of others. When an offender is convicted of a crime he or she will often be called upon to make a statement during sentencing. This is the opportunity for the now guilty offender to offer contrition and remorse. It is not uncommon to hear a judge or juror opine after such a statement that he or she didn’t believe the offender really meant it — that the statement was merely used as an opportunity. And, that may be true. But can the judge or juror, even when tasked with this awesome responsibility, reliably infer the offender’s true motives and emotions?

There is a well-known study called “mind in the eyes” —you may be familiar with this study. Scientists showed study participants various photographs of a pair of human eyes. The study participant was then asked to pick the mental state or attitude that best matched what the eyes expressed. The participant was given a list to choose from such arrogance, annoyed, upset, or worried. Supposedly the test determines how well a person can read the emotions of others simply by looking at (or some would say “in”) their eyes. Another way of putting this is that we intuit the emotions and mental state of others from what their eyes are “telling” us.

And, indeed, the “mind in the eyes” test confirms that we are very good at reading others by looking at their eyes . . . when given a hint. On average, participants choose the correct emotion over 70% of the time. Case closed? Not exactly. When the test is repeated but without giving the participant a list of words to choose from, the participants are able to correctly identify the correct emotion or mental state only 7% of the time! Maybe we humans aren’t so great at reading a person’s mental state after all.

If we accept the results of the enhanced “mind in the eyes” study, what does that mean for our legal system’s heavy reliance on the intuition of the judge and jury? The sentencing hearing is but one example. What about witnesses at trial? When a witness testifies to what he or she saw or heard, that testimony is a product nor only of the witnesses’ objective observations but, can be and probably is, colored by the witnesses’ own feelings and biases.

A study published by the Stanford Law Review asked participants to watch a video of an identical protest. When the participant was told that the protesters were demonstrating in favor or a political point of view that corresponded to the participant’s political leanings, the study participant’s perception of whether the protest was violent or peaceful corresponded favorably with the study participant‘s own political leanings. In other words, even though the video footage was exactly the same, whether the protest was seen as violent or peaceful depended upon whether the study participant agreed with the perceived reason for the protest.

What do these studies, and others, tell us? Perhaps our intuition is not all that reliable, but rather we unknowingly rely on our own biases and prejudices. This has important implications in our legal system as the administration of justice implicitly and explicitly relies on the human factor of intuition, which we believe to be reliable. Perhaps, it is time for that narrative to change. There is still so much to learn about how our minds work but brain science has told us enough to know that we are not objective observers and, for the sake of justice, it is time for the legal system to catch up.

With almost 25 year of experience in criminal defense, including juvenile defense, William Weinberg is available to consult with you regarding your or your child’s criminal matter. You can reach him at his Irvine office at 949-474-8008 or email him at