COVID-19 and the courtroom: how social and cognitive psychological processes might affect trials during a pandemic

ABSTRACT

Around the world, almost every aspect of people’s lives has been affected by the novel coronavirus (COVID-19). We focused on one context that has received relatively little attention to date: the courtroom. Guided by established psychological findings and theories, we explored how the emergence of COVID-19 and proposed protective measures against the virus (i.e. face masks, physical distancing) could affect legal decision-making at trial. For the majority of the phenomena that we considered, the extant literature predicted negative or mixed effects. Because it appears likely that extralegal factors related to the pandemic will affect outcomes, the fairness of proceedings must be called into question. Overall, this work suggests that the reopening of the courts might be premature. It also highlights the importance of leveraging established psychological findings to address questions arising from unpredictable events when direct research is not yet available.

KEYWORDS:

• COVID-19
• novel coronavirus
• pandemic
• decision-making
• courtroom

Data availability statement

Data sharing is not applicable to this article, as no new data were created or analyzed in this study.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Terminology varies throughout the literature. Although emotions, moods, affect, and feelings refer to different concepts, they can be used interchangeably by researchers. For example, the mood as information theory is also referred to as the feelings as information theory by its originators (e.g., Schwarz, 1990; Schwarz & Clore, 2003). Where possible, we have adopted the terms used by the original researchers in their articles.

2 For the sake of efficiency, we use the general term ‘decision-makers’ to encompass anyone charged with rendering a verdict or sentence at trial (i.e., judges and jury members). Although the majority of psychological processes would affect all decision-makers equally, we have made note of predicted effects for different subgroups and types of trials (i.e., jury vs. bench) where warranted.

3 Depending on the type of niqab, it may conceal more of the upper cheeks and forehead than a traditional face mask. There is no direct evidence that either of these regions are diagnostic of deception, however. Thus, we consider it appropriate to compare a niqab to a face mask in this domain because they both cover the lower portion of the wearer’s face.

4 The Centers for Disease Control and Prevention (2020) recommend that there should be at least 6 feet between individuals to decrease the spread of COVID-19. Consider a standard courtroom. Twelve jurors would not be able to sit six feet apart in a jury box. By moving some jurors, there will be variability in their proximity to the defendant and the judge.