The Digital as Evidence: Personal Digital Information and the Rethinking of Judicial Focal Concerns in Sentencing

• In Event: Focusing on Focal Concerns

Abstract

Our personal digital information (e.g., social media posts/comments, internet searches, browsing histories) is increasingly being used in legal decisions (McKay & Lee, 2020). While such information purports to signify who we are, what we think, and what we do, it has multiple subjective interpretations and is notoriously untrustworthy (McKay & Lee, 2020). Expanding on long-standing criminological and sociological insights about the ways in which legal and social processes differentially construct people’s character, this research examines how personal digital information is used by judges to support legal decisions. The project uses an “inhabited institutions” approach (Ulmer, 2019) along with a social psychological attributions framework to qualitatively explore the use of digital information in criminal sentencing decisions across three Australian states over a 12-month period. Findings focus on how legal decision makers employ and interpret inherently subjective digital information through the typical judicial focal concerns of blameworthiness, culpability, and community safety. The findings carry implications for the potential augmentation of bias in judicial sentencing as a result of increased reliance on personal digital information.

Authors

• Suzanna Fay, The University of Queensland

• Jonah Rimer, The University of Queensland