Utterly surprised – a note on epistemic emotions in prosecutorial decision making

Nina Törnqvist, Uppsala University, Sweden

’I’m utterly surprised’. These are the words by the prosecutor commenting on the judgement in one of this year’s most high-profile trials in Sweden. However, as she needed the weekend to calm down and compose herself before she spoke with the press, we can assume that surprise was not her single, initial emotional response when hearing that the man she had charged with rape against a ten-year-old girl was fully acquitted in the appellate court.  Stating that she chose not to comment on the judgement before she was grounded in ‘a more civil servant state of mind’, I believe that the prosecutor’s choice to express surprise rather than anger in this situation tell us something important about the (dis)passionate emotion regime of the criminal legal system. But why is it that surprise is a more appropriate emotion to express than anger?

In general, anger is associated with irrational behaviour and rushed decisions, and can thus be an uncomfortable professional position (especially in Swedenperhaps not as much in US). In contrast, surprise indicates an epistemological shift that aligns well with the idea of prosecutors as ‘professional knowers’, with an eagerness to discover (new) truths about particular topics. However, in this particular case, surprise and anger seem to be deeply entangled. As surprising events tend to be beyond our control, I suggest that the prosecutor uses surprise to convey a strong dissent with the legal interpretation made by the appellate judges. Rather than signifying an actual interruption of existing knowledge, the surprise expressed by the prosecutor echoes a firm assertion of her earlier assessment of the case and evidence.[1] This example thus highlights the communicative quality of emotions, where power and status are at stake.

Nevertheless, engaging in ethnographic fieldwork, studying legal decision making for the last five years in the project JustEmotions, and prosecutors’ professional performances in my PhD thesis, I also believe that there is another story important to tell about the emotional aspects of prosecutors’ work. As experienced sensations, surprise, anger and other emotions involve a readiness to act that fuel legal practices and decisions. To a large extent, the emotional influences on legal decision making have been neglected in previous research, thus missing an important key to understand how these decisions come about. In our article, Epistemic emotions in prosecutorial decision making (Vol 50, Issue 2, 2023), my co-author Åsa Wettergren and I, probe deeper into the dynamics between emotions with distinct knowledge-driving qualities, epistemic emotions, and prosecutors’ pursuit of knowledge during preliminary investigations and court proceedings. Emotions such as surprise, curiosity, doubt and certainty are all directly conducive to knowledge seeking processes. Without emotions that motivate, monitor or halt lines of inquiry we, or prosecutors for that matter, would never initiate an investigation or – sorry for the (un)intended pun – never rest our case. Connecting current strands of research within philosophy, psychology and sociology of emotions, where reason and emotion are seen to be intrinsically intertwined, we are interested in understanding the ways in which prosecutors come to know their decisions ‘feelingly’. 

To further our understanding of the dynamic interplay between emotions, knowledge acquisitions and decision making, we develop the notion of the certainty-doubt spiral. Through empirical examples, we demonstrate that an agile knowledge position, where the prosecutors are able to move in and out of certainty and doubt, aid the emergence of a conscientious and well-considered decision. As ‘a reaction to the sudden discovery of unexpected knowledge’, surprise spins the certainty-doubt in different ways. As we show in our article, surprises in prosecutorial work can be both welcome and unwelcome. During the preliminary investigation, a welcome surprise might entail unexpectedly catching a suspect, evoking feelings of pleasantness, elation and certainty. In contrast, an unwelcome surprise, arising from an unexpected decision from the court to release of a suspect from custody, can unfold in disappointment, frustration and doubt. In the article, we show how an unwelcome surprise in getting a charge dismissed in court, can trigger a reflexive process in which new interpretations of the case are tested, underscored by worry and regret about earlier legal interpretations and decisions. Serving a meta-cognitive function, surprise invigorate reflexive practices about existing knowledge. Sometimes surprise feed into doubt and acceptance, sometimes into certainty and anger as in the initial example.

Importantly, there is a temporal dimension of the ‘welcomeness’ of a surprise, during the preliminary investigation prosecutors are devoted to make sure no stones are left unturned and are open for further inquiry. In later stages in the criminal justice process, where prosecutors need to have reached some certainty regarding their chances in court, information that alters what is known about a case is rarely welcome. Being jolted into an alternate way of seeing things during court proceeding is thus often a flustering, negative experience. 

In their everyday work, prosecutors make various decisions that have a profound impact on people’s lives. Encompassing a short excursion into the outskirts of the terrain of legal decision making, our study on the role of epistemic emotions in prosecutorial decision making hold the potential to raise important questions about how these emotions bolster prosecutors’ agency and professional reflexivity. Just as in many other legal systems, prosecutors in Sweden are required to adhere to the principle of objectivity. In practice, the principle of objectivity demands for an ability to continuously challenge and swiftly reassess knowledge previously acquired. Epistemic emotions aid prosecutorial decision making as they indicate the quality of one’s knowledge and how much confidence to place in it. With this work, we hope to spark a scholarly interest in how surprise as well as curiosity, doubt, certainty and other epistemic emotions, through reflexivity, can become valuable asset for doing objectivity – and, by extension, enhance the legitimacy of the rule of law.  

[1] The case was brought to the Supreme Court in Sweden by the prosecutor general and received a review permit regarding procedural error in mid-May 2023.

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