Is the judiciary really so bad at judging character?

When I had a cough last week, my son Joe,  who has autism, shouted at me and covered his ears. I didn’t mean to cough but, to Joe, so what? His autism means he doesn’t get other people’s intentions. People like him are sometimes said to lack a ‘theory of mind’ — lacking the idea that Dad or anyone else even has a mind, possessed of its own thoughts and intentions.

This complicates his life infinitely. And that alerts us to a commonplace miracle: the contrast with the rest of us. Often we can see inside other people’s heads. We’re prolific theorisers about what they’re thinking. What’s more, we’re often right: if you flash the cash as we hit the bar I understand that you intend to buy the round; if you open the door and step aside I understand your courteous intention to let me through; when hero and heroine finally kiss it’s because they both know — though neither speaks. At its best, this faculty verges on mind reading.

Malcolm Gladwell is not focussed in this case on human capacity at its best. From Talking to Strangers you might conclude that far from being mind readers, we’re hopeless at divining what’s going on behind other peope’s eyes, sometimes with catastrophic results. Worse, we congratulate ourselves on our acuity, even as liars and rogues play us for fools. Thus, among apparently poor judges of others are people whose job is to judge them well.

The police, CIA, FBI, political leaders, spies and judges themselves all come out badly, Gladwell suggests, in thinking they’re sleuths of the mind when in some cases a computer — with no human intuition at all — does better. But the implication is that we’re all worse than we like to think.