This document summarizes a study on how judges assess remorse in offenders. The researchers interviewed 20 judges in New South Wales, Australia about how they evaluate remorse. Key findings include: 1) Judges take remorse very seriously as a mitigating factor in sentencing, but assessing remorse is challenging given its subjective nature. 2) Judges look for remorse both in the courtroom, through an offender's demeanor and statements, and outside the courtroom through prior evidence of remorseful actions. 3) The interviews revealed tensions judges face in evaluating remorse, such as balancing biological factors with personal responsibility, and determining what constitutes genuine versus non-genuine remorse.

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Courtroom contrition: how do judges know?
Kate Rossmanith, Steven Tudor & Michael Proeve
To cite this article: Kate Rossmanith, Steven Tudor & Michael Proeve (2019): Courtroom
contrition: how do judges know?, Griffith Law Review, DOI: 10.1080/10383441.2018.1557588
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2. Courtroom contrition: how do judges know?*
Kate Rossmanitha
, Steven Tudorb
and Michael Proevec
a
Department of Media, Music, Communication & Cultural Studies, Macquarie University, Sydney, Australia;
b
School of Law, La Trobe University, Melbourne, Australia; c
School of Psychology, University of Adelaide,
Adelaide, Australia
ABSTRACT
In most common-law jurisdictions world-wide, an offender’s
remorse is a well-settled mitigating factor in sentencing, with
judges obliged to take it into account when formulating an
offender’s sentence. However, the importance of remorse in
sentencing is matched by its mystery. Given remorse’s central role
in the moral drama of the criminal justice process, it is crucial to
investigate how remorse is evaluated, and also to understand the
limitations of those evaluations. The present article seeks to
contribute to that effort by exploring what is involved in judges
coming to know — and claiming to know — that ‘this offender is
remorseful’. Drawing on in-depth original interviews with 20
magistrates and judges in New South Wales, Australia, we explore
how judges themselves understand their own ways of knowing
about remorse. We then look at two basic scenes of offender
remorse: remorse in the courtroom and remorse outside the
courtroom. Many judges want to see remorse in the courtroom,
and are often confident that they know it when they see it. But, at
the same time, as we shall see, many judges also want evidence
of the offender’s remorse outside the courtroom.
1. Introduction
Sentencing judges take remorse very seriously. Here is a representative comment from a
Victorian sentencing appeal decision:
If there is evidence of remorse, and if that remorse is genuine, it is a very important element
in the exercise of the sentencing discretion. Remorse of this kind indicates realistic prospects
of rehabilitation and a reduced need for specific deterrence. An offender who pleads guilty
because he or she has an accurate appreciation of the wrongfulness of his or her offending,
and of its impact upon its victim or victims, and who desires to do what reasonably can be
done to repair the damage and to clear his or her conscience, is someone to whom mercy – in
the form of a very substantial reduction in what would otherwise be an appropriate sentence
– is very likely due.1
© 2019 Griffith University
CONTACT Kate Rossmanith kate.rossmanith@mq.edu.au Department of Media, Music, Communication & Cultural
Studies, Macquarie University, Sydney, Australia
*This article is a revised version of a paper presented jointly by the authors at Emotions in Legal Practices: Historical and
Modern Attitudes Compared, a conference organised by the Australian Research Council Centre for Excellence for the
History of Emotions 1100–1800, at the University of Sydney, 26–28 September 2016. The authors would like to thank
the conference organisers and participants.
1
R v Phillips [2012] VSCA 140 at [101]–[102] per Harper JA.
GRIFFITH LAW REVIEW
https://doi.org/10.1080/10383441.2018.1557588

3. Similar views can be found in many other jurisdictions, both in Australia and interna-
tionally.2
In most common-law jurisdictions world-wide, an offender’s remorse is a
well-settled mitigating factor in sentencing, with judges obliged to take it into account
when formulating an offender’s sentence. Moreover, remorse is effectively one of
the prerequisites for juries granting mercy in death penalty decisions in the United
States.3
The importance of remorse in sentencing seems, however, to be matched by its mystery.
One defence counsel has described remorse as a ‘slippery little sucker’4
, while a judge has
acknowledged: ‘Remorse is vague. It’s ephemeral almost.’5
There also seems to be a degree
of judicial discord about how judges are to decide whether or not an offender is remorseful.
The judge quoted at the start of this article continued:
… Sentencing judges have, in my opinion, been too ready to accept the mere fact of the guilty
plea, or assertions of remorse proffered from the bar table, or in the reports of psychologists
and other experts by whom the offender has been seen, as a sufficient basis for a conclusion
that remorse is present to an extent that warrants a discount over and above that which is to
be granted on the basis of utility.6
Academic commentators have also expressed doubts about how judges can reliably ascer-
tain an offender’s remorse and, consequently, doubts about whether such an uncertain fac-
tor should be given any role in sentencing.7
However, such doubts are unlikely to stop judges and juries being deeply interested in
whether or not an offender is remorseful. Remorse is a sign of the possibility of redemp-
tion, a deep theme in our legal system. It serves as a key point of agreement between the
accused and their accusers: the court denounces the actions of the accused person, and the
accused reciprocates by remorsefully repudiating their actions in turn. Courtrooms can
thus serve as theatres of remorse, and of remorselessness.8
Socio-legal scholar Richard
Weisman has labelled public enactments of offender remorse as ‘moral performances’10
because:
the showing of remorse […] is performed in front of an audience, because this audience
actively shapes the presentation by virtue of its power to credit or discredit, and because
the crediting or discrediting of this performance contributes to whether the offender is
included within or expelled from the moral community.9
By displaying remorse, an offender can thus show their audience that they are suitable
to return to the moral community from which they alienated themselves by their
offending.
Given remorse’s central role in the moral drama of the criminal justice process, it is, as
Susan Bandes notes, probably impossible to prevent the evaluation of remorse in criminal
trials and sentencing.10
So, rather than try to persuade judges to ignore remorse as
2
Proeve and Tudor (2010).
3
See for example Costanzo and Costanzo (1992).
4
Rossmanith (2015), p 174.
5
Rossmanith (2015), p 174.
6
R v Phillips [2012] VSCA 140 at [101]–[102] per Harper JA.
7
Bagaric and Amarasekara (2001), Ward (2006), Duff (2001), Lippke 2008, Murphy (2006, 2007), Ward (2006), Bandes (2016).
8
Rossmanith (2018), p 8 10
Weisman (2009), p 49.
9
Weisman (2009), p 66. For a discussion of the centrality of performances of remorse to processes of judges’ decision-
making, see also Van Oorschot et al. (2017).
10
Bandes (2016).
2 K. ROSSMANITH ET AL.

4. something too uncertain and idiosyncratic for a rational justice system, it may be better to
devote our efforts towards understanding how remorse is evaluated, and also to under-
stand the limitations of those evaluations.11
The present article seeks to contribute to that effort by exploring what is involved in
judges coming to know — and claiming to know — that ‘this offender is remorseful’.
We are interested, in particular, in how judges themselves understand their own ways
of knowing about remorse. We draw here primarily upon Rossmanith’s original interviews
with and observations of judicial officers in New South Wales, Australia. Between 2010
and 2013, she conducted an ethnographic study12
concerning remorse enactment and
assessment in the New
South Wales criminal justice system. She conducted 20 formal interviews with NSW
Supreme Court and District Court judges, and with Local Court magistrates; and she con-
ducted scores of formal and informal interviews with lawyers, forensic psychiatrists and
psychologists, court chaplains, members of the parole board, caseworkers, offenders,
and victims of crime. She attended more than 100 court hearings and parole hearings.
She also attended and documented private meetings of the NSW State Parole Authority,
sitting with parole board members as they made hundreds of decisions about prisoners’
parole. She asked her interviewees how remorse is enacted and evaluated, what remorse
is, and what the justice system wants it to do.
Such an approach has the potential to yield new insights into contrition in the courts.
If, as ethnographers acknowledge, the knowledge we implicitly use to live our daily lives
is not necessarily identical with the knowledge we use to explain life13
, then in-depth
interviews with judges, and spending time with them, might offer us candid reflections,
including the tensions and inconsistencies involved in the doings of people’s working
lives.14
In other words, we can start to reveal judges’ experience of the practice of remorse
assessment.
The interviews, most of which were conducted in the judiciary’s chambers, went for
approximately one hour. One interview was conducted via email. The participants
included four Supreme Court judges, eight District Court judges, five Local Court magis-
trates, one judge from the Court of Criminal Appeal, a former Supreme Court judge, and a
former NSW Chief Magistrate. Interviewees were asked:
How do you assess if someone is remorseful?
How can you tell if someone feels remorse?
What is remorse?
Why is remorse a mitigating factor?
11
Bandes (2016).
12
This research was approved on 19 August 2010 by Rossmanith’s Human Research Ethics Committee (reference number:
5201000889). This research was made possible because of a Macquarie University internal grant.
13
Jackson (1996), p 2.
14
For example, one of the tensions discussed during Rossmanith’s interviews concerned the question of biology. At the
time of the interviews, scientists had recently discovered what has been termed ‘the warrior gene’. This gene supposedly
affects levels of the brain chemicals ‘dopamine’ and ‘serotonin’, which in turn affect men’s behaviour and mood (reput-
edly not so for women). If you are male and have the gene, and if you’ve had an unstable upbringing as a child, you are
more prone to violent outbursts. Rossmanith asked a judge if the gene was relevant when sentencing someone. The
judge wondered: was he expected to lock up the offender for a shorter period (because a person can’t control his
biology and therefore his actions are not entirely his free will), or for a longer time (because he presents more of a
danger to society)? In the courts, this question has not yet been resolved (Rossmanith 2018, p 124).
GRIFFITH LAW REVIEW 3

5. Does an offender’s remorse, or lack of remorse, affect victims of the crime? In what
ways?
These open-ended questions allowed judges to reflect at length. Their responses then
prompted further questions. This meant that judicial reflections largely informed what
was discussed during interviews. Interviews were then transcribed and major themes
were identified via a coding process: using discourse analysis, themes were indexed and
identified according to key terms judges used (eg ‘responsibility’, ‘evidence’ ‘rehabilitation’
etcetera).15
Common themes emerging from the data included:
The relationship between remorse and responsibility
Forms of remorse evidence
Genuine versus non-genuine remorse
Remorse and demeanour assessment
Remorse and an offender’s personal story
Remorse and rehabilitation
Truth-telling in the courts
Emotion and judicial decision-making
In other words, when thinking about remorse in the law, judges opted to talk about the
above topics; judicial understandings and experiences of assessing remorse were intimately
tied in particular ways to questions of demeanour, self-narration, rehabilitation, etcetera.
Rossmanith’s research was informed by Performance Studies, a discipline born of a
marriage in the 1960s between theatre and anthropology, and one that enlists the term
‘performance’ as a critical tool. In this context, ‘performance’, as used by sociologists,
anthropologists, and other social scientists and humanities scholars, is not meant to
suggest that people’s conduct is contrived — although in some cases the conduct may
be — but to analyse customs, practices, and expressive behaviour. For at least 500
years, people have used the language of theatre to describe trial courts — it is, in a
sense, a tired trope — and mostly the two things have been linked pejoratively: the trial
is about solemn truth; the theatre is artifice and entertainment.16
In court we study people
and discredit those thought to be performing. And yet, at the same time, courtroom and
legal-judicial processes involve, and in some cases demand, enactments from people.17
Much of the research to date on how judges evaluate remorse is based on jurisprudence
discussions, and, more recently, on discourse analyses of judges’ official sentencing
remarks, all of which has been enormously useful in giving us a picture of some of the
official ways in which remorse is figured in the courts.18
Researchers are now also
15
For a discussion on how ethnographers code fieldnotes, see Madden (2010), pp 139–144.
16
Leader (2008).
17
Rossmanith (2018), p 8.
18
For example, research to date has turned to: how capital juries assess a person’s remorse (Sundby 1998); legal debates
concerning the relevance of remorse in the sentencing process (Bagaric and Amarasekara 2001; Bibas and Bierschbach
2004; Tudor 2005, 2008a, 2008b; Ward 2006; Murphy 2006; Lippke 2008); the ways in which assessment of a defendant’s
apparent remorse or remorselessness can disadvantage both the defendant and the prosecution (Ward 2006); the ways in
which a defendant is expected to ‘show’ remorse (Weisman 2004); how judges constitute the category of remorse
through the criteria they use to decide which claims to remorse are valid (Wood & MacMartin 2007; Weisman 2009);
the role that remorse (in relation to religion) plays in the judiciary’s assessment of moral character, particularly in
decisions to grant legal mercy (Murphy 2007); the necessity of guiding decision-makers on how to improve their abilities
4 K. ROSSMANITH ET AL.

6. recognising the great value of hearing from judges themselves, and a handful of studies
have emerged in the last several years which involve formal and informal interviews
with sentencing judges in relation to remorse.19
Following this recent work, we are careful
not to reify remorse, for as Weisman argues, remorse is ‘marked by negotiation, contesta-
tion, surrender and opposition, claims and counterclaims, and power and resistance’.20
In
other words, it is not a matter of trying to further flesh out what remorse is, or its ‘pres-
ence’ or ‘absence’, but rather to understand the ways in which judges arrive at decisions
about who is remorseful and who isn’t. Van Oorschot et al point out: ‘remorse should
not be treated as an unambiguous, straightforwardly binary distinction’, but rather as a
performance ‘embedded in specific contexts’.21
We start by briefly sketching the legal context of sentencing judges’ concern with
remorse, before turning to the question of what judges are looking for when they look
for remorse. Following the work of Weisman (1999), Wood and McMartin point out
that judges’ decisions are intertwined with definitions.22
It is vital, therefore, to consider
what judges understand remorse to be. We then look at two basic scenes of offender
remorse: remorse in the courtroom and remorse outside the courtroom. Many judges
want to see remorse in the courtroom, and are often confident that they know it when
they see it. But, at the same time, as we shall see, many judges also want evidence of
the offender’s remorse outside the courtroom. In the sections below we present the judges’
own views, as revealed through Rossmanith’s research, together with some of our own
reflections and speculations.23
2. The legal context of looking for remorse
It will be useful first to sketch very briefly the formal legal context in which judges are most
concerned with remorse. Remorseful behaviours by an accused, such as confessions,
apologies and reparative acts, can be relevant at trial as evidence of ‘consciousness of
guilt’. If an accused who has pleaded not guilty can be shown by the prosecution at
their trial to have earlier confessed to the crime or to have engaged in some sort of repara-
tive conduct which implies an admission of guilt, then such evidence could be quite damn-
ing.24
However, presenting evidence of remorseful behaviours at trial is relatively rare
(perhaps in part because most accused who behaved remorsefully outside a legal context
can be expected to plead guilty, though, of course, that need not always be the case).
Remorse will usually be of more concern to judges at the sentencing stage. After a
finding of guilt, whether through a guilty plea or a guilty verdict, a formal sentencing
to evaluate remorse (Bandes 2011); and an extended examination of legal and psychological perspectives on remorse
(Proeve & Tudor 2010). Scholars have looked at expectations, including remorse enactments, placed on prisoners (Hall
2017; Martel 2010). There have also been studies in the area of restorative justice, with attention paid to the role of
remorse in restorative justice conferences. See also Tieger (2003), Weisman (2014), Bandes (2016).
19
Zhong et al (2014), Rossmanith (2014, 2015), Hall and Rossmanith (2016), van Oorshot et al (2017). See also Johansen
(forthcoming).
20
Weisman (2014), p 8.
21
Van Oorschot et al (2017), p 361.
22
Wood and McMartin (2007), p 344.
23
Susan Bandes (2016) points out the necessity of turning to sources such as interviews with judges and jurors to further
understand what exactly, in remorse assessment, is being evaluated, p 313.
24
Such evidence would be classified as evidence of an ‘admission’ under Australia’s uniform evidence laws. See Evidence Act
1995 (Cth); Evidence Act 1995 (NSW) and Evidence Act 2008 (Vic).
GRIFFITH LAW REVIEW 5

7. hearing will normally take place before the sentencing judge decides the sentence. At that
sentencing hearing, the prosecution and the offender have the opportunity to make sub-
missions and seek to prove certain matters of fact to the judge. It is the judge alone, how-
ever, who must find the relevant facts which will then form the basis of their decision as to
sentence.25
Among the facts to be found by the judge, their ‘conclusions about what the
offender did and about the history and other personal circumstances of the offender
will be very important’.26
An offender’s remorse is well-recognised, both at common law and in statute, as a rel-
evant personal circumstance.27
As indicated by the earlier quotation from Harper JA in R v
Phillips, remorse is taken to be relevant to a number of the recognised purposes of senten-
cing, in particular rehabilitation and deterrence. That is, a remorseful offender is seen as
one who is already on the path to rehabilitation (since they are already starting to correct
themselves) and is less in need of deterrence (since the pangs of their own conscience serve
to shift their future behaviour), or so, at least, it is hoped. Given the legal importance of a
finding of remorse, a conscientious judge will attend very closely to the task of deciding
whether or not the particular offender in front of them is in fact remorseful.
3. What are judges looking for?
We turn now, then, to the question of what it is that judges are looking for when they look
for an offender’s remorse. Earlier research by Proeve and colleagues indicated that there
may be no consistent definition of remorse shared by judges,28
and Rossmanith’s ethno-
graphic research also bears this out. Nonetheless, there do appear to be some common or
at least recurrent themes and concerns.
3.1. What do judges think remorse is?
When Rossmanith asked judges what remorse actually was, some used the word ‘emotion’,
others not, but most agreed it was, or at least it began as, a ‘feeling’. ‘Remorse is a feeling of
shame,’ said one judge.29
Another explained: ‘Remorse is really feeling sorry for what
you’ve done such that, if you had it within your power, you would reverse it; it was some-
thing you deeply regret, and the consequences live with you.’
For many judges, remorse was something that began its life as an internal state and was
then ‘practically’ expressed. As one judge put it: ‘Remorse is an expression of being sorry
for having committed the offence.’ Another said:
Remorse is a feeling of shame, I suppose. But the essential thing is that you will try in the
future to do something different. If the same circumstances arise again, you are sorry for
that harm you caused and therefore you’re going to try and avoid that harm in the future.
25
See the High Court of Australia’s discussion of the role and nature of sentencing hearings in GAS v The Queen (2004) 219
CLR 198 and The Queen v Olbrich (1999) 199 CLR 270.
26
The Queen v Olbrich (1999) 199 CLR 270 at [1].
27
See e.g. Neal v The Queen (1982) 149 CLR 305 (Murphy J); Cameron v R (2002) 209 CLR 339 (McHugh J); Crimes Act 1914
(Cth) s 16A(2)(f); Crimes (Sentencing Procedure) Act 1999 (NSW) s 23A(3)(i); Sentencing Act 1991 (Vic) s 5(2C); Sentencing Act
2017 (SA) s 11(1)(g); Alvares v R (2011) 209 A Crim R 297; Windle v R [2011] NSWCCA 277; Roff v R [2017] NSWCCA 208.
28
Proeve, Smith and Niblo (1999). See also Zhong et al (2014).
29
All unattributed quotations are from Rossmanith’s original interviews.
6 K. ROSSMANITH ET AL.

8. Another judge said: ‘Saying “I am sorry for what I did” means nothing to me. Practically
speaking, [remorse] means very little [to me] unless it is an indicator of something else.’
And another said:
Unless it has a practical component, I find it impossible to assess remorse. I haven’t […]
found it to make a bugger of a difference where it’s simply “I’m terribly sorry”. Because
most people don’t understand what being sorry is. [It has to be] expressed in a practical
term of having realised the consequences of your actions [which might be] demonstrated
by early pleas of guilty, recognition or wrongdoing, acceptance of responsibility. [And]
there’s a difference between acceptance of responsibility and expressions of remorse. What
I’m looking for as a judge is acceptance of responsibility and the ability to use that to say
“Well, this is a lesson I’ve learnt in a positive sense.” If you describe remorse in that sense,
I value it. If you describe it simply as “I’m terribly sorry for raping that four-year-old or
breaking someone’s jaw”, unless there’s some practical component to it, the mere expression
of that I don’t find very valuable at all.
In summary, judges thought that remorse is an emotion of regret or shame which comes to
be demonstrated in understanding one’s wrongdoing and accepting responsibility.
Importantly, present in these comments is the notion of remorse as an enduring
phenomenon. It is not simply a feeling that passes but is one that ‘goes deep’ in the self
and persists over time, shaping a range of one’s other thoughts, feelings and actions.
3.2. Distinguishing genuine remorse from its false semblances
A common theme among the judges was a concern to distinguish cases of genuine or true
remorse from various kinds of non-genuine remorse. In her conversations with judges,
when Rossmanith used the term ‘remorse’, a number of the judges very quickly began add-
ing qualifiers, making a distinction between what they called ‘genuine’, ‘true’ remorse, and
what they referred to as remorse that was ‘feigned’, ‘superficial’, ‘confined’, ‘manufactured’.
In other words, a key way in which judges clarified what, for them, ‘remorse’ was involved
explicating what it wasn’t.
Judges used the following terms interchangeably: ‘superficial’, ‘manufactured’, ‘perfunc-
tory’ remorse. One judge said: ‘Some people are hard-nosed about pleading guilty. And it’s
those people who’ll sometimes give an expression of remorse that sounds a bit perfunctory.’
Another judge said:
Occasionally it happens [where someone demonstrates] true remorse in the sense that some-
one says “Oh my God, I can’t believe what I did. I’m so ashamed. I’m so overcome with guilt
about what I’ve done and how that must have affected this person, and I’m going to turn my
life around, and I’m going to undertake these kinds of programs to stop that ever happening
again.” Some people express remorse on a very superficial level, but this true remorse, that
real kind of heart-rending epiphany, I don’t think you see all that often.
The idea here is that true remorse goes very deep in a person — it rends their heart — and
is not the same as shedding a few tears on the surface. In this sense, the remorse is, for the
judges, contrived. One judge explained: ‘As soon as lawyers get hold of their clients and
start telling them they’ve got to say things, then it becomes a little bit less impressive. It
tends to be a manufactured remorse.’ Another judge said:
You can usually tell when remorse is feigned and when it isn’t because the feigning doesn’t
work very well. You can tell it’s feigned remorse because it’s just a bit bland. Sometimes the
GRIFFITH LAW REVIEW 7

9. forms of expression sound like they’ve come from someone else, not from the person. Per-
haps it’s an expression they’ve picked up, or maybe a lawyer has said to them “It’s a good idea
to express remorse.” But you get the feeling that it hasn’t actually come from them.
In such cases, the ‘inauthenticity’ of the remorse is revealed. The remorse is not expressive
of what the offender him or herself has realised about their actions or about what the vic-
tim has suffered, or even expressed in the way the offender would speak, but is merely a
response to their lawyer’s advice or to the circumstances they now find themselves in, per-
haps just a matter of doing and saying ‘what is expected’ rather than expressing what they
actually feel.
Judges also spoke of what they called ‘qualified remorse’. For example, one judge
explained:
Remorse for your own family is qualified remorse. If I’m in jail and I’m sorry that my children
are going to miss out on the care of the breadwinner, that’s remorse but it’s not as good as
saying. “I’m sorry for the harm I’ve caused the victim”. The latter is much more impressive
than “I’m sorry that my children are going to miss out on the care of their father.”
Such remorse is considered genuine enough, for the offender really does feel they have
done the wrong thing by their children — but the remorse is mis-focused, or is too limited
in scope, because the original victim does not figure centrally in the offender’s thinking.
The moral concern here seems to be too restricted or qualified (and in an egocentric
way) to qualify as genuine remorse. According to judges, this qualified remorse was
often associated with an element of self-pity at the negative consequences for oneself
that the offending has produced. This describes a sort of prudential regret (a distinction
that Wood & McMartin made in their 2007 study of sentencing remarks). One judge
recounted to Rossmanith a recurring exchange he has in court:
An offender gets into the witness box. Their lawyer says: “Now tell us how remorseful you
are”. “Oh yes, I’m very remorseful,” comes the reply. As the judge, I might say “What
does remorse mean?”, and the person responds “Oh, that’s what my lawyer told me to
say”. I might then say, “What he’s asking about is how sorry you are about what you’ve
done.” “Oh yes, I’m very sorry,” says the offender. “Why are you sorry?” I ask. “Oh well,
you know” comes the reply, “I’ve been arrested and now I’ve got to go to jail.” I might ask
“Are you sorry for any other reason?” Sometimes they’ll say “Oh, I’m a bit sorry for the vic-
tim.” [In other words, often] all they’re feeling sorry about is themselves or the effect that it’s
had on their family or the fact that they’re going to have to go back to jail this time.
Another judge pointed out:
The whole focus of a person in the dock facing sentence is what is going to happen to them.
Most people are overwhelmed by the prospect of what’s going to happen to them, so the
courtroom is not the place where you’re going to get many genuine expressions of remorse.
Psychologists and philosophers have produced numerous analyses of guilt feelings, shame,
bad conscience and remorse.30
These studies often involve making some very finegrained
and subtle distinctions between and within these different ‘retractive’ emotions. It is
30
Philosophical analyses include Thalberg’s (1963) and Tudor’s (2001) discussions of remorse, Taylor’s (1985) comparison of
shame and guilt, Dilman’s (1999) comparison of shame, guilt and remorse. Conceptual analyses by psychologists include
Baumeister, Stillwell and Heatherton (1994) who review the origin and nature of guilt; Crozier (1998) who discusses the
conceptual nature of shame; Lewis (1971) contrasts shame and guilt; while Landman (1993) and Gilovich, Medvec and
Kahneman (1998) discuss regret. Empirical studies of these emotions include contrasts of shame and guilt by Wicker,
8 K. ROSSMANITH ET AL.

10. reasonably apparent, however, that working judges do not use such terms as ‘remorse’,
‘contrition’ and ‘shame’ as distinctly or with the same degree of precision. In the court-
room, subtle distinctions between remorse and guilt feelings, or between different kinds
of guilt, or between guilt feelings and shame are less likely to be noted or to be of much
concern even if noted. While judges seem to distinguish between types of remorse in a
way that reflects a distinction between remorse and prudential regret, judges do not, gen-
erally, make finegrained analyses between different kinds of remorse or guilt or hold back
from describing as ‘shame’ what a psychologist might call ‘altruistic’ guilt’ or a philosopher
‘remorse’. Psychologists and philosophers are generally aiming to produce comprehensive
and precise theories of remorse, while judges need a workable definition that can be used
with some flexibility in practice. Theories do not usually produce such definitions.
4. The remorseful offender in court
So much for the question of how judges understand what remorse is (or isn’t). How do
judges undertake the task of deciding whether or not a particular offender is in fact remor-
seful? It is to this question that we now turn.
4.1. Evidence of remorse in and out of the courtroom
Generally speaking, in the absence of telepathy, judges base their understanding of others’
emotional states on various external behaviours. In the case of remorse, there appear to be
three main kinds of remorse-indicative behaviours accepted by the courts: physical demea-
nour, verbal acts, and various other kinds of remorse-motivated acts.31
It is commonly
accepted that the remorseful person will often express their remorse, whether consciously
or unconsciously, through their physical demeanour, be it distressed, downcast or with-
drawn. The remorseful person can also express their remorse verbally, for example,
through apologies, self-reports of feeling remorseful, promises to reform, etc. Remorse-
indicative behaviours also include actions that are motivated by remorse, such as paying
compensation, co-operating with police, undergoing therapy, imposing self-punishment,
and so on. What remorse-indicative behaviours a remorseful offender will perform or dis-
play will clearly be restricted by the opportunities and means available to them, including
their social skills and confidence in giving expression to their feelings,32
or, indeed,
whether or not they see their remorse as something private and not for public display.
Such behaviours, too, are embedded in socio-cultural contexts, in communities of
exchange, as van Oorschot and colleagues have shown, and there are ‘interactional and
narrative complexities that attend to the negotiation and imputation of remorse’.33
A key distinction in this context is between those remorseful behaviours which are dis-
played in the courtroom itself and those which are displayed outside the courtroom and
are reported to the court. In the former case, the judge is the direct witness of the remorse-
ful behaviour; in the latter case, the judge is the assessor of the evidence of remorse
Payne and Morgan (1983), Lindsay-Hartz (1984), Roseman, Wiest and Swartz (1994), Tangney (1991) and exploration of
regret by Zeelenberg, Van Dijk, Manstead and van der Pligt (1998).
31
See Proeve and Tudor (2010), p 96.
32
Rossmanith (2014).
33
van Oorschot et al (2017), p 360.
GRIFFITH LAW REVIEW 9

11. presented in court by witnesses of those remorseful behaviours. We will look at each in
turn. In this section, we will look at how judges view remorse in the courtroom.
Remorse, as an emotional phenomenon, is understood as being present in and being
presented in the courtroom. In most criminal cases, the offender will be present in
court, at the trial and at the sentencing hearing, and from such appearances the
judge may be able to discern something of the offender’s remorse. In such cases, the
judge (among other witnesses in the room) can say (either to the offender or just to
themselves) ‘I see that the offender is remorseful, here and now.’ The two main ways
remorse is understood to be manifested in the courtroom are through the offender’s
demeanour and through the offender’s own apologies and other verbal expressions of
remorse.
4.2. Demeanour
In her interviews, Rossmanith found that some judges very quickly rejected any suggestion
that they take demeanour into account (a number of interviewees were incensed at the
thought). As one judge said: ‘You can certainly see whether a person in the dock is dis-
tressed. But distressed about what? The immediate consequences for them? Or distressed
about what they’ve done?’ This highlights the problem of ambiguity in demeanours. The
same demeanour (e.g. a downcast and submissive expression) can be ambiguous — it
might be simple fear, or prudential regret, rather than remorse. Remorse is a complex,
multifaceted emotion, and it is hard to read in or from the body. Moreover, not all
cases of remorse may manifest in the same demeanours. It would seem risky, then, to
claim that one can tell if a person is genuinely remorseful on the basis of how they are
sitting on a chair.
Another problem is that courtrooms are often not ideal stages for the natural display of
demeanours. One judge said that she doesn’t take demeanour into account because court-
rooms are ‘artificial environments, and offenders often feel like uninformed bystanders,
with people talking about them and around them’. Offenders may thus have difficulty
or disinclination to display or ‘perform’ their remorse in the courtroom. In many ways,
the courtroom is often far from the ideal space for the expression or enactment of remorse.
It is a highly formal, and, for most people, utterly alien social space. The opportunities for
the expression of remorse in the courtroom are very restricted and many offenders, while
keenly aware of being scrutinised, may not have the skills or the self-awareness or the self-
possession, or the simple knowledge of the legal process, to be able to present their remor-
seful self on cue. Indeed, under the glare of the law, the genuinely remorseful offender may
feel overcome with fear and anxiety, and find their remorse being pushed off centrestage,
un-summonable and inexpressible before the law, or they simply think it is a private mat-
ter and they don’t want to display it.
A third difficulty in the assessment of demeanours is the oft-raised problem of offenders
simply faking it. As one judge put it:
You get a witness in the witness box who appears to be really upset. You get off the bench;
who knows how they’re acting? [At the judicial orientation program] one of the things you
learn is that it’s difficult to access people’s credibility through body language. I think we all
knew that anyway.
10 K. ROSSMANITH ET AL.

12. However, at the same time, it emerged from Rossmanith’s conversations that in fact many
judges believe that their work involves ‘reading visual clues from people’, as one judge put
it. Moreover, they went a step further, suggesting that they can just sort of ‘sense’ if a
person feels remorse or not. Judges spoke of offenders’ remorse being ‘spectacularly evi-
dent’, of it crying out to them from across the courtroom. A number of judges even wept
as they recounted to her occasions of having encountered offenders’ remorse. Remorse
assessment worked, for many judges, at the level of embodied affect, where something
got felt by the judges themselves that then enabled them to declare: this person is remor-
seful.34
One judge said: ‘Sometimes remorse is spectacularly evident. […] There are some
spectacular examples’; another said: ‘Some cases, [remorse] absolutely stands out. It cries
out.’ Here, judges are speaking of offenders not as mere sign-emitters (people producing
‘visual cues’ of remorse) but as bodies overflowing with remorse. In other words, the
judges were not so much reading this body for remorse as simply feeling and sensing
the remorse.35
In summary, judges in Rossmanith’s interviews identified problems with assessment of
remorse by demeanour, but some judges clearly use demeanour to assess evidence of
remorse. An interesting aspect of demeanour assessment that emerges from this is that
the perception of remorse in an offender’s demeanour was often a matter of the judge’s
own emotional response. One can register another’s emotion in one’s own emotional reac-
tion, e.g. ‘I felt he was angry’ or ‘I felt she was deeply sorry for what she did’. The judge’s
own sympathetic response to the offender’s emotional expression serves as the recognition
that the offender is remorseful. There is not an affectively neutral perception of facts from
which the existence of remorse is inferred. This goes against much of the traditional model
of the unemotional, disengaged judge and could be part of the reason why some judges
were not keen to recognise demeanour assessment as an important part of working out
whether an offender was remorseful or not.
Are judges well-placed to assess and interpret demeanour in order to decide whether an
offender is remorseful? The law allows lay witnesses to give evidence of another’s
emotional state. Strictly speaking, in the eyes of the law, for a witness to tell a court
that a person was in such and such an emotional state is to give what lawyers call ‘opinion
evidence’. This means that the witness is seen as drawing an inference from what they
actually observed (the person’s behaviour) to something they did not actually observe
(the person’s internal, emotional state). Generally, the law does not allow witnesses to
draw inferences from what was observed; that is seen as something for the jury to do.
However, there are a number of well-recognised exceptions to this rule, and giving evi-
dence as to a person’s emotional state is one of them. This exception is allowed because
it is thought that it would be impossible or at least highly unnatural for a witness to
describe a person’s outer behaviour without reference to their emotional state.36
At a
deep, perceptual level, we simply see that a person is angry, sad etc., and we cannot con-
sciously separate out the neutral factual substratum which informs that perception. How-
ever, just because the law says a witness may draw certain inferences does not necessarily
mean that lay witnesses are in fact particularly good at discerning emotional states,
34
Rossmanith (2015).
35
Rossmanith (2015).
36
See Sherrard v Jacob [1965] NI 151 and Baltimore & Ohio Railroad Co v Schultz 43 Ohio 270; 1 NE 324 (1885).
GRIFFITH LAW REVIEW 11

13. especially complex and subtle ones such as remorse. There can still be a difference between
an ordinary lay person’s evidence as to someone’s emotional state and a trained expert’s
evidence regarding the same.
When judges seek to infer remorse from an offender’s in-court behaviour and
demeanour, are they acting as lay witnesses or as experts? In one, clear sense, the
judge is not at all an expert in such matters if they have had no professional training
in assessing the phenomenology of emotions. However, in another sense, judges — or,
at least some of them — can probably claim to be very experienced lay witnesses. With
such experience can come a more informed and refined judgment about the emotional
states of offenders based on their in-court behaviour and demeanour. Generally speak-
ing, an experienced judge is likely to be a better lay witness in this regard than the aver-
age juror.
An additional aspect of demeanour judgment is that the judge is in the dual position of
assessing the facts of remorse as a lay witness and weighting his or her own findings of the
facts of remorse with regard to the purposes of rehabilitation and deterrence. It may be
worth considering the extent to which the judge’s thinking about the offender’s demon-
stration of rehabilitation or need for deterrence, based on other facts of the case at the
time when demeanour is assessed, then shapes the evaluation of demeanour for signs of
remorse. Therefore, it would seem safer to say that assessing demeanour will, for some
time yet, remain a somewhat fraught exercise and is likely to be a problematic basis for
discerning the presence of remorse.37
4.3. Apologies and attestations of remorse
In terms of verbal acts in the courtroom, offenders might also get into the witness box and
tell the judge how remorseful they are and apologise to the court, possibly with promises
not to repeat their offending and offering to make reparation. Verbal acts by offenders
seemed to be
influential sources of evidence about remorse. One judge said:
I’ve seen people who I thought were incredibly sorry for what they’ve done, really sorry for
what they’d done, and impressively sorry for what they’ve done. [When they give evidence
orally, you can see it in] the genuineness of what they’re saying, in the sense that they put
themselves down and they will put themselves ‘in’ even more heavily than perhaps the
facts would have warranted.
Another judge said:
I’ve heard some offenders give some very powerful evidence. Things like “Well, you know, to
be honest with you, up until six weeks ago I hadn’t really thought about this, and then I sud-
denly thought ‘Wow, what if somebody had hit my sister, or what if it was my mother who
was robbed and knocked over and her handbag was snatched?’” People can give very power-
ful evidence on that kind of basic level. I’d accept that. I think you can demonstrate that there
was some kind of event or realisation, that suddenly the penny’s dropped, or someone said
something to you. Most often it’s because they say “I suddenly realised that my parents have
been putting up with this shit for so long, and they’re not getting any younger, and I’ve got to
do something about my life.” I can believe that.
37
See also Bandes (2016), Levenson (2008), Blumenthal, (1993), Wellborn III (1991).
12 K. ROSSMANITH ET AL.

14. And another judge said:
There are times when you’ll see the accused get into the box, and the victim is in court, and
the offender will address them individually and say to them how sorry he is about what’s hap-
pened and he understands how it’s ruined their lives et cetera. It’s good when it happens.
It’s rare, though.
In such cases, the judge has to decide whether to believe the person who claimed to be
remorseful. According to one judge, ‘There’s nothing wrong with a judge or magistrate
saying, in assessing a witness, “I believe them because they were prepared to be genuine,
and the way they answered the questions, and at the end of the day I believe them.”’. Simi-
larly, another judge said,
My entire function is determining whether or not people are telling the truth. Remorse is one
of the many issues upon which people are sentenced, and they often give evidence that they
feel sorrow or sadness about what they’ve done. That’s a matter for you to evaluate. You are
presented with clues as to what is really going on. Ultimately you’ve got to make a judgment
as to whether you believe the person or you don’t.
Believing a person’s claim of remorse, accepting an apology as genuine, and accepting a
promise to reform as sincere are cognitive and emotional judgments which the judge
needs to make. Again, there is no formula for telling whether someone is telling the
truth here. Often demeanour and other perceivable behaviours will play a role but there
will often be a concern with corroborative evidence of what the offender has said and
done outside the court, which we now turn to.
5. The remorseful offender outside court
Although in-court displays of remorse can be highly significant, perhaps the most impor-
tant remorse-indicative behaviours are those that occur outside the courtroom. When
Rossmanith asked judges how they can tell if a person is remorseful, many of them said
that it was important to know what the offender had done outside the courtroom, indeed
from the moment the offence was committed up until the sentencing hearing (in other
words, often over several years). Did the perpetrator flee the scene? Did they immediately
confess? Did they try to make reparations?
In such cases, the judge cannot be a witness to the behaviours but needs evidence of them
brought to the court by witnesses. The sentencing judge, as fact finder, then assesses that evi-
denceinordertodecideifthe offenderisremorseful.(Thisis,indeed,theusualroleofthe fact-
finder, whether judge or jury.) Where the evidence is accepted that the offender was remorse-
ful at that earlier time, the assumption is that, all other things being equal, genuine remorse
endures and so the judge can infer that the offender will still be remorseful at the time of sen-
tencing (and, indeed, beyond), even if no particular or obvious remorse-indicative demea-
nours are present in the courtroom. What sorts of evidence of remorse outside the
courtroom do the judges prefer, that is, find most convincing as evidence of genuine remorse?
5.1. Actions speak louder than words
For some judges, remorse-indicative actions outside court are not just better evidence of
remorse; they are the only evidence worth accepting. As one judge explained: ‘One of the
GRIFFITH LAW REVIEW 13

15. difficulties I think for judges is how they determine remorse is genuine. And I only do it by
what people do after the offence, rather than what they say about it.’ For this judge, the
offender’s own attestations of remorse and any supposed remorseful demeanours carry
no weight, so the remorse-indicative actions are not corroborative but rather
determinative.
Another judge said:
Sometimes [offenders’] actions speak louder than their words, so you’ll see that they’re
remorseful from the way they reacted to the offence, or the way that, subsequent to the
offence, they’ve gone to the police and spoken to the police. What they’ve said to the police
in an interview is pretty important.
This approach takes the offender’s own, self-initiated actions as a better indicator of gen-
uine remorse. The actions are not in response to a judge’s question or prompted by coun-
sel’s advice. The actions, being unbidden, are taken to be genuine and authentic.
5.2. Immediate remorse
A very important form of evidence of remorse is where the remorse was apparent immedi-
ately after the offending. One judge said: ‘Immediate remorse is most powerful’. Regarding
an offender convicted of murder for deliberately running over a man with her car, another
judge explained what convinced him of her remorse:
[Her remorse] was obvious because the moment she got out of the car, she immediately
ran down to the front of the car and attempted to lift the front of the car off the person
underneath […]. She was in a terrible state up on the road, and a nurse came along, and
she was pulling her hair out and she was in a highly distressed condition. […] [T]here
was also clear evidence from the jail authorities of her constant anguish about what
she’d done: medical reports of clinical nurses and clinical psychologists who were treating
her bipolar disorder. Her remorse had been so genuine and [for] so long, and had caused
her such anxiety and had caused her such anguish, that she deserved something off the
non-parole period.
Rossmanith had been at the woman’s sentencing hearing, during which the offender had
sat in the dock weeping and tugging at the edges of her suit jacket as if to prevent her
insides from spilling.38
She had looked so distressed. Rossmanith asked the judge about
this afterwards — whether in fact it had been her demeanour in court that had convinced
him of her contrition. The judge was irritated by the question. ‘Yes, but who can tell?’ he
snapped. ‘People can be very good actors.’ And then he listed what had convinced him:
that is, what the woman had done and said from the moment she crashed her car into,
and on top of, the young man.
The temporal immediacy of remorse here is seen as indicating genuineness. This can
put at a disadvantage those offenders who come to experience sincere remorse only
after a period of time. There can be various factors that might inhibit a person from
immediately understanding what they have done, but when a lucid perception is achieved,
it need not be any less genuine. If judges only accept immediate remorse as genuine, then
this would seem somewhat limiting.
38
For an account of this sentencing hearing, see Rossmanith (2018), pp 3–7.
14 K. ROSSMANITH ET AL.

16. 5.3. Temporal consistency
A key aspect of these internal and external dimensions of remorse is that in some sense
they need to endure. That is, remorse is not a passing feeling or mood that might settle
in for a day or two but then lift once one has cheered up a bit. There needs to be some
consistency and durability to genuine remorse. This also means that offenders often
need to demonstrate that they have been remorseful over a significant period of time.
This was an important factor for some judges. One judge said: ‘What you do find some-
times is a pattern of expressions of remorse in the other evidence consistent with the evi-
dence they give on the day.’ Another judge said:
The main thing you take into account, and the most reliable thing is what people have said on
different occasions and whether or not there’s contradiction. [There are people who] visibly
carry the burden of their remorse. [One particular offender I’m thinking of] is suffering and
she will suffer for the rest of her life. I’ve no doubt about that.
The courtroom is thus not always the site of the offender’s performance of remorse; it
is often, and often much more importantly, the site of the performance analysis, with
the performance (or performances) having already taken place elsewhere and over
some time. An account of the offender’s remorse enactments that have taken place
outside the court over the last six months, year, two years or more, and that are
still continuing, forming a sort of ‘arc of contrition’, is presented to the court through
various witnesses (possibly including the offender themselves). The evidence stitches
together various of the offender’s sayings and doings over a period of time, along
with interpretations of those sayings and doings, to form a sort of ‘remorse
dramaturgy’.
5.4. Third party opinions as to the offender’s remorse
The evidence of out-of-court remorse that judges seem to prefer does not seem to include
the opinions of third parties as to an offender’s remorse. That is, judges do not generally
like to be told by other people that the offender is remorseful. Rather, that conclusion is for
the judge to decide. Regarding the decision for offenders to get into the witness box and
speak for themselves, one of the judges Rossmanith spoke with said:
In the District Court I have seen offenders get into the witness box. Hearing it come from an
offender in person is much more powerful than reading it in a report. I always worry about
reading it in a report when the person is not prepared to get into the box, because you’ve
either got the courage of your convictions, or you haven’t.
Claims that an offender is remorseful made by professionals such as psychologists and
psychiatrists in their reports seem to have limited impact. This might be because of a
general lack of trust in such reports or a more limited distrust in relation to such people
making inferences as to remorse, possibly exacerbated by a lack of consistency among
psychologists and psychiatrists regarding the definition and criteria for remorse. As one
judge told Rossmanith: ‘We see quite a few cases where the person being sentenced
never jumps in the [witness] box, [and yet there is] a psychological report which
includes elaborate statements of remorse. Those reports are not given much weight.’
And as another judge said in an exchange with counsel in a sentencing hearing,
GRIFFITH LAW REVIEW 15

17. ‘I have to say I do not believe psychologists are entitled to express opinions as to
remorse’.39
Ritualistic, unconvincing statements from counsel at the bar table that ‘my client is very
remorseful, your Honour’ have little weight without further evidence. This was reinforced
by the 2007 amendments to the NSW sentencing legislation. The amendments made clear
that there needs to be evidence of remorse, and not just a claim of remorse, if remorse is to
be taken into account as a mitigating factor. The new section 21A(3)(i) of the Crimes (Sen-
tencing Procedure) Act 1999 (NSW) provides that ‘the remorse shown by the offender’ is a
mitigating factor to be taken into account in determining the appropriate sentence,
but only if: (i) the offender has provided evidence that he or she has accepted responsibility
for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage
caused by his or her actions or made reparations for such injury, loss or damage (or both).
Similarly, letters to the court from the offender’s family and friends, assuring the judge of
the offender’s remorse, have little impact if there is no other evidence to support the claim.
In a NSW case where a man pleaded guilty to recklessly inflicting grievous bodily harm, his
lawyer argued at the sentencing hearing that he was remorseful, presenting to the court
reports from a forensic psychiatrist and a counsellor, as well as references from the offen-
der’s family and friends. People wrote of his shame, of his ‘deep feelings of despair and
regret’, and of his ‘genuine remorse’. The judge was unconvinced. In his judgment, he
wrote: ‘I would have liked to have seen more in the way of concern’ for the victim, and
that the offender’s remorse ‘could have been more forthcoming.’ He wrote that, when
the offender does not get into the witness box, the court ‘was entitled to be appropriately
discriminating in accepting statements from the bar table as to the level of remorse’.40
Not
all judges, though, are necessarily sceptical of such third-party opinions when it comes to
assessing a person’s remorse. One of the judges Rossmanith spoke with explained that,
because an offender’s mother, brother, or friend, knows the offender and knows how he
expresses himself, ‘if that mother, brother or friend says “He’s told me how sorry he is.
He’s devastated about this”, and if that witness comes across as genuine, I find it just as
useful [as if the offender gave evidence himself.]’
6. Conclusion
This article has presented a variety of candid judicial views about how judges decide whether
or not an offender is remorseful, together with some commentary and interpretation of our
own. We have not sought to quantify the views expressed nor to try to forge an ‘average’ or
standard judicial view out of the disparate materials. It is clear that this is an area wherethere
are a variety of views in play. Our hope is simply to prompt further reflection and discussion
about this crucially important — but strangely still underdeveloped — aspect of sentencing
practice. We are, in a sense, responding to Susan Bandes’ call when she argues that, when it
comes to advancing our knowledge about how the courts make decisions about remorse,
and the limits of judges’ abilities to make such evaluations, researchers should ask empirical
questions and try to answer them.41
In this way we might assist in helping decision-makers
39
See Barbaro and Zirilli v The Queen [2012] VSCA 288 at [29].
40
Butters v R [2010] NSW CCA 1.
41
Bandes (2016), p 326.
16 K. ROSSMANITH ET AL.

18. reflect on their own working practices, thus revealing certain assumptions (what Bandes
terms ‘folk knowledge’) that underscore remorse assessment in the courts.
It is worth noting that the findings in our article are particular to an Australian juris-
diction, New South Wales. Different legal jurisdictions may well have different legal rules
and procedures in relation to how evidence of offender remorse is gathered, accepted and
processed and in relation to the legal significance of findings of remorse and its absence.42
Moreover, within different legal jurisdictions, there may well be different legal cultures
and, indeed, different ‘moral communities’43
at work, shaping, in less juridical or formal
ways, how judges expect, look for, elicit, resist and respond to claims and evidence of
remorse. Accordingly, we do not wish to suggest that the particular issues and concerns
revealed in Rossmanith’s research will be simply replicated in all jurisdictions, even in
all Australian jurisdictions. Nonetheless, given the widespread interest in remorse and
the often similar challenges it poses across many jurisdictions, there is probably good
reason to suspect that many of the views of the NSW judges presented here will find echoes
among other judiciaries. It is to be hoped that future research will confirm this suspicion as
well as reveal new and further dimensions to this fascinating aspect of criminal justice.
Disclosure statement
No potential conflict of interest was reported by the authors.
Funding
This work was supported by Macquarie University [Grant Number 9201001805].
Notes on contributors
Dr. Kate Rossmanith is a Senior Lecturer and Researcher in Cultural Studies at Macquarie Univer-
sity, Australia. She is also a creative nonfiction writer, and is the author of Small Wrongs: How we
really say sorry in love, life and law (Hardie Grant Books, 2018), which investigates remorse in the
criminal justice system and remorse in our everyday lives. Small Wrongs has been nominated for
literary awards in the UK and Australia. Her essays have appeared in The Monthly and Best Aus-
tralian Essays 2007. In 2018 her short documentary Unnatural Deaths was published by The Guar-
dian as part of a series exploring archives on film. Kate is a co-editor of Remorse and Criminal
Justice: Multi-Disciplinary Perspectives (Routledge, forthcoming).
Dr. Steven Tudor is a Senior Lecturer in the School of Law, La Trobe University, Melbourne, Aus-
tralia. His research interests include law and emotions, freedom of conscience and philosophical
issues raised by the criminal law. Among Steven’s publications are Compassion and Remorse:
Acknowledging the Suffering Other (Leuven, 2001) and, with Michael Proeve, Remorse: Psychological
and Jurisprudential Perspectives (Ashgate, 2010). He is a co-editor of Remorse and Criminal Justice:
Multi-Disciplinary Perspectives (Routledge, forthcoming).
Dr. Michael Proeve is a Senior Lecturer in the School of Psychology at the University of Adelaide.
He is a clinical and forensic psychologist with experience in forensic mental health and correctional
42
For some important research on judges’ views of remorse in other in other jurisdictions, see Zhong et al (2014) and Van
Oorschot et al (2017). Zhong and colleagues conducted interviews with the judges in the U.S. state of Connecticut, while
more recently Van Oorschot and colleagues conducted interviews with, and observation of, judges in the Netherlands.
See also Johansen (forthcoming) with its focus on judges in Danish courtrooms.
43
See Weisman (2014), pp 12–18 on remorse and moral communities.
GRIFFITH LAW REVIEW 17

19. settings. His research interests are in the areas of remorse and shame, mindfulness, and assessment
and treatment of sexual offenders. He is the co-author of Remorse: Psychological and Jurisprudential
Perspectives (Ashgate, 2010), and a co-editor of Remorse and Criminal Justice: Multi-Disciplinary
Perspectives (Routledge, forthcoming).
References
Cases (reported)
Baltimore & Ohio Railroad Co v Schultz 43 Ohio 270; 1 NE 324 (1885) Barbaro and Zirilli v The
Queen [2012] VSCA 288 at [29].
Butters v R [2010] NSW CCA 1
R v Phillips [2012] VSCA 140 at [101]–[102] per Harper JA
Sherrard v Jacob [1965] NI 151
Secondary Sources
M Bagaric and K Amarasekara (2001) ‘Feeling Sorry? – Tell Someone Who Cares: The Irrelevance
of Remorse in Sentencing’ 40(4) The Howard Journal of Criminal Justice 364.
Susan A Bandes (2011) ‘Evaluation of Remorse is Here to Stay: We Should Focus on Improving its
Dynamics’inPHRobinsonandSGarvey(eds)CriminalLawConversations,OxfordUniversityPress.
Susan A Bandes (2016) ‘Remorse and Demeanour in the Courtroom: Cognitive Science and the
Evaluation of Contrition’ in J Hunter, P Roberts, S Young, and D Dixon (eds) The Integrity of
Criminal Process: From Theory into Practice, Hart Publishing, 309–26.
RF Baumeister, AM Stillwell, and TF Heatherton (1994) ‘Guilt: An Interpersonal Approach’ 115
Psychological Bulletin 243.
S Bibas and R Bieschbach (2004) ‘Integrating Remorse and Apology into Criminal Procedure’ 114
The Yale Law Journal 85.
Jeremy A Blumenthal (1993) ‘A Wipe of the Hands, A Lick of the Lips: The Validity of Demeanor
Evidence in Assessing Witness Credibility’ 72 Nebraska Law Review 1157
M Costanzo and S Costanzo (1992) ‘Jury Decision Making in the Capital Penalty Phase: Legal
Assumptions, Empirical Finding, and a Research Agenda’ 16 Law and Human Behavior 185.
R Crozier (1998) ‘Self-consciousness in Shame: The Role of the ‘Other’’ 28(3) Journal for the Theory
of Social Behaviour 273.
I Dilman (1999) ‘Shame, Guilt, and Remorse’ 22(4) Philosophical Investigations 312.
RA Duff (2001) Punishment, Communication and Community, Oxford University Press
T Gilovich, VH Medvec, and D Kahneman (1998) ‘Varieties of Regret: A Debate and Partial
Resolution’ 105 Psychological Review 602.
Maggie Hall (2017) The Lived Sentence: Rethinking Sentencing, Risk and Rehabilitation, Palgrave.
Maggie Hall and Kate Rossmanith (2016) ‘Imposed Stories: Prisoner Self-narratives in the Criminal
Justice System in New South Wales, Australia’ 5(1) International Journal for Crime, Justice &
Social Democracy 38.
Michael Jackson (ed) (1996) Things as They Are: New Directions in Phenomenological
Anthropology, Georgetown University Press.
Louise Victoria Johansen (forthcoming) ‘“Impressed” by Feelings: How Judges Perceive
Defendants’ Emotional Expressions in Danish Courtrooms’, Social and Legal Studies
J Landman (1993) Regret: The Persistence of the Possible, Oxford University Press.
Kathryn Leader (2008) Trials, Truth-telling and the Performing Body, Thesis submitted in fulfil-
ment of the requirements for the degree of Doctor of Philosophy, University of Sydney.
Laurie L Levenson (2008) ‘Courtroom Demeanor: The Theatre of the Courtroom’ 92 Minnesota
Law Review 573.
HB Lewis (1971) Shame and Guilt in Neurosis, International Universities Press.
J Lindsay-Hartz (1984) ‘Contrasting Experiences of Shame and Guilt’ 27 American Behavioral
Scientist 689.
R Lippke (2008) ‘Response to Tudor: Remorse-based Sentence Reductions in Theory and Practice’ 2
Criminal Law and Philosophy 259.
18 K. ROSSMANITH ET AL.

20. Raymond Madden (2010) Being Ethnographic: A Guide to the Theory and Practice of Ethnography,
Sage.
J Martel (2010) ‘Remorse and the Production of Truth’ 12(4) Punishment and Society 414.
Jeffrie Murphy (2006) ‘Well Excuse Me! – Remorse, Apology, and Criminal Sentencing’ 38 Arizona
State Law Journal 371.
Jeffrie Murphy (2007) ‘Remorse, Apology, and Mercy’ 4 Ohio State Journal of Criminal Law 423.
Michael Proeve, David Smith, and Diane Mead Niblo (1999) ‘Mitigation Without Definition:
Remorse in the Criminal Justice System’ 32 Australian and New Zealand Journal of
Criminology 16.
Michael Proeve and Steven Tudor (2010) Remorse: Psychology and Jurisprudential Perspectives,
Farnham, Ashgate
IJ Roseman, C Wiest, and TS Swartz (1994) ‘Phenomenology, Behaviors, and Goals Differentiate
Discrete Emotions’ 67(2) Journal of Personality and Social Psychology 206.
Kate Rossmanith (2014) ‘Getting Into the Box: Risky Enactments of Remorse in the Courtroom’ 12
About Performance 7.
Kate Rossmanith (2015) ‘Affect and the Judicial Assessment of Offenders: Feeling and Judging
Remorse’ 21(2) Body & Society 167.
Kate Rossmanith (2018) Small Wrongs: How We Really Say Sorry in Love, Life and Law, Hardie
Grant Books.
SE Sundby (1998) ‘The Capital Jury and Absolution: The Intersection of Trial Strategy, Remorse
and the Death Penalty’ 83 Cornell Law Review 1557.
JP Tangney (1991) ‘Moral Affect: The Good, the Bad, and the Ugly’ 61 Journal of Personality and
Social Psychology 598.
G Taylor (1985) Pride, Shame and Guilt: Emotions of Self-Assessment, Clarendon Press.
I Thalberg (1963), ‘VI.—REMORSE’ LXXII Mind 545.
Alan Tieger (2003) ‘Remorse and Mitigation in the International Criminal Tribunal for the Former
Yugoslavia’ 16 Leiden Journal of International Law 777.
Steven Tudor (2001) Compassion and Remorse: Acknowledging the Suffering Other, Leuven, Peeters.
Steven Tudor (2005) ‘The Relevance of Remorse in Sentencing: A Reply to Bagaric and Amaraskara
(and Duff)’ 10 Deakin Law Review 760.
Steven Tudor (2008a) ‘Why Should Remorse be a Mitigating Factor in Sentencing?’ 2 Criminal Law
and Philosophy 241.
Steven Tudor (2008b) ‘Remorse, Reform and the Real World: Reply to Lippke’ 2 Criminal Law and
Philosophy 269.
Irene van Oorschot, Peter Mascini, and Don Weenink (2017) ‘Remorse in Context(s): A Qualitative
Exploration of the Negotiation of Remorse and Its Consequences’ 26(3) Social & Legal Studies
359.
Bryan S Ward (2006) ‘Sentencing Without Remorse’ 38 Loyola University Chicago Law Journal 131
Richard Weisman (2004) ‘Showing Remorse: Reflections on the Gap between Expression and
Attribution in Cases of Wrongful Conviction’ 46(2) Canadian Journal of Criminology and
Criminal Justice 121.
Richard Weisman (2009) ‘Being and Doing: The Judicial Use of Remorse to Construct Character
and Community’ 18 Social and Legal Studies 47.
Richard Weisman (2014) Showing Remorse: Law and the Social Control of Emotion, Ashgate.
Olin Guy Wellborn III (1991) ‘Demeanor’ 76 Cornell Law Review 1075.
FW Wicker, GC Payne and RD Morgan (1983) ‘Participant Descriptions of Guilt and Shame’ 7(1)
Motivation and Emotion 25.
LA Wood and C MacMartin (2007) ‘Constructing Remorse: Judges’ Sentencing Decisions in Child
Sexual Assault Cases’ 26 Journal of Language and Social Psychology 343.
M Zeelenberg, WW van Dijk, ASR Manstead, and J van der Pligt (1998) ‘The Experience of Regret
and Disappointment’ 12(2) Cognition and Emotion 221.
R Zhong, Madelon Baranoski, Neal Feigenson, Larry Davidson, Alec Buchanan, and Howard V
Zonana (2014) ‘So You’re Sorry? The Role of Remorse in Criminal Law’, 42(1) Journal of the
American Academy of Psychiatry and the Law Online March 2014, 39.
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