Courtroom Observations Research Articles

Being in two minds: accommodating emotional victim narratives in Dutch courtrooms.

When Victim Impact Statements (VISs) were introduced in Dutch criminal law in 2005, victims were required to limit their statement to the impact of the harm done by the crime. In 2016, a major amendment lifted this restriction. Even though the statement may (still) not be used as legal evidence, critics worried that the change in scope would invite heightened levels of emotion into the courtroom, which would in turn undermine magistrates' objectivity. A comprehensive evaluation of the old/restricted legislation and a follow-up analysis of courtroom observations showed that the Dutch system was rather well-equipped to accommodate the expressive function of the VIS before 2016. These studies pay some attention to emotional labor to show how emotional narratives were being dealt with in the courtroom. Recently, a new evaluation of the VIS (post-2016) has been carried out. Observation data of this recent study is qualitatively analyzed and compared to previous findings. The paper also gives insight in the way magistrates manage emotionality in the courtroom in relation to perceptions of objective decision making. Results show that, despite the fact that balancing emotion work with safeguarding objectivity introduces feelings of uncertainty, magistrates accommodate empathy between themselves and the victim, but also open up a space for empathy between the defendant and the victim.

Linguistic dimensions of the crimmigration regime: Language ideological working conditions in US Immigration Court

AbstractThis essay uses an examination of communication in Los Angeles Immigration Court (2014–2017) to demonstrate how legal professionals’ beliefs about language foster and entrench underexplored linguistic dimensions of the US crimmigration regime. Scholars have shown that within courtroom interactions, legal ideas about language hold back the administration of justice in asylum proceedings, and language interpretation itself can perpetuate the administrative violence of these proceedings. I combine ethnographic courtroom observations and critical examination of internal agency policy to show how ideas about language, inherited from legal professional culture and training, aggregate into adverse working conditions, allowing for only a performance of procedure, and amplifying the US crimmigration system. Of particular interest are ideologies of a monoglot standard and national language imaginaries, referentialism and referential transparency, and decontextualization. Abolitionist logics and reform of legal education offer possible strategies for structural intervention.

Intimate Partner Violence: Factors that Influence Court Decisions in Addis Ababa City Administration

The judiciary, due to its pivotal position, has the potential to play a crucial role in safeguarding women from intimate partner violence (IPV). Despite this, there exists a lack of research on the adjudication of intimate partner violence against women (IPVAW) cases in Ethiopia. This article aims to identify the factors that influence the decision-making process and the final judgments delivered by the judiciary in IPVAW cases within the Addis Ababa City Administration. A qualitative research method was employed as a general research approach to gather data from purposively selected victims/survivors and duty-bearers within the purposively selected sub-cities of Addis Ababa. Primary data were gathered through semi-structured in-depth interviews, focus group discussions, courtroom observations, and court case analysis. The research revealed that various legal, institutional, social, and cultural frameworks present in the study area significantly impact the adjudication of IPVAW cases. These can be categorized into factors directly related to the legal framework of the country and those that go beyond the black letters of the law. The findings suggest the need for a multi-faceted approach to address these factors, including strengthening the legal framework of the country, providing capacity-building training for actors, and raising public awareness about the gravity of the act.

The pains of going to court: Unrepresented defendants’ ability to effectively participate in court proceedings

Within this article, the pains that unrepresented defendants experience when representing themselves in court will be discussed from the perspective of court professionals and the researcher. For the purpose of this article, an unrepresented defendant is someone who at some stage during court proceedings is not represented by a lawyer. Based upon data gathered from 20 semi-structured interviews with court actors and courtroom observations at two magistrates’ courts, it will be argued that while most defendants tend to struggle to effectively participate in court proceedings (e.g. follow and understand what is taking place), this is particularly the case for those who are unrepresented. It is important that defendants can participate in court proceedings for due process, human rights and liberal democratic reasons.

The Norwegian Victim Lawyer in a Nordic Context: Professional Boundaries, Legal Hierarchies and Purification Processes

The victim lawyer has become a common feature in Nordic jurisdictions. Designed to enable victims to participate effectively in the criminal justice system, victim lawyers emerged largely due to the advocacy of the women’s movements and their concern for survivors of rape and other forms of sexual violence. In this paper, we conduct a thematic analysis of interviews and courtroom observations, focusing on how the role and professional status of the Norwegian victim lawyer are perceived. Against the backdrop of the other Nordic jurisdictions, we draw on Bourdieu’s idea of the legal field as a site of struggle to identify perceived legal hierarchies from the perspective of victim lawyers. The findings indicate that the introduction of the victim lawyer in Norway has created tensions and contestations that revolve around both professional and political concerns. These include concerns about the relationship between legal and non-legal work, boundaries of the victim lawyer role and tensions between professional and political loyalties.

The Impacts of Drug and Alcohol use on Sentencing for First Nations and Non-Indigenous Defendants

This paper examines the ways personal use of illicit substances and alcohol are constructed as either mitigating or aggravating factors to explain offending. We consider the differential constructions of these factors for people who appear in supreme and district courts in northern Queensland, Australia, for offences involving illicit substance use, alcohol use, drug-related offences, and violence. Qualitative analysis of courtroom observations is understood through the lens of Critical Race Theory (CRT). Our findings reveal that personal use of illicit substances was primarily constructed by legal practitioners as an indicator of disadvantaged circumstances when discussing non-Indigenous defendants. In these cases, drug use was connected to other disadvantages such as poor mental health, physical pain, and trauma. In contrast, alcohol use was primarily raised as an aggravating factor for First Nations defendants, constructed by legal practitioners as a personal flaw linked to violent offending, and overshadowed the interrelated disadvantages that many First Nations defendants experience. This reflects social attitudes about First Nations people, reinforces individualistic explanations for offending patterns, and points to the institutional racism embedded in the structural processes of Queensland's higher courts that continues to profoundly impact First Nations people.

Gender and Financialization of the Criminal Justice System

(1) The increase in women’s mass incarceration over the past forty years raises questions about how justice-involved women experience the financial aspects of the criminal justice system. (2) We conducted in-depth interviews with twenty justice-involved women and seven criminal law and reentry professionals, and conducted courtroom observations in southeastern Pennsylvania. (3) The results from this exploratory research reveal that women’s roles as caregivers, their greater health needs, and higher likelihood of being poor creates barriers to paying fines and fees and exacerbates challenges in reentry. (4) These challenges contribute to a cycle of prolonged justice involvement and financial instability.

From Legislation to Everyday Practices in Guatemala's Violence against Women Courts

AbstractWe explore how formal mandates associated with Guatemala's 2008 ‘Law against Femicide and Other Forms of Violence against Women’ and with specialised violence against women (VAW) courts have encountered significant challenges due to state-imposed constraints. Drawing on courtroom observations, analyses of case files, and interviews, we find that while formal mandates incorporated feminist understandings of violence against women, which were often internalised among court officials, in daily practice specialised courts reproduced tendencies to depict violence as interpersonal, fragment people's experiences and enact narrow forms of justice that do not incorporate the full intent of the 2008 VAW Law and institutions intended to support it. This case study thus illuminates how and why legal solutions alone are not sufficient to reduce gender-based violence and feminicide, particularly in the face of uneven and openly hostile challenges posed by governments.

Immigration trials and international crimes: Expressing justice and performing race

This article examines the performative collisions between the wrong of genocide and the invocation of this international crime as a means to secure carceral control of borders. Drawing on courtroom observations, legal transcripts and the media coverage of an immigration trial in the United States, the article explores the performative relationship between international criminal law and immigration law. It argues that this relationship helped to construct and racialize the category of the ‘criminalized migrant’ while establishing the perceived ‘civility’ of criminal law as a primary means of enacting domestic border control. While race was never made explicit in the trial, it emerged in a fractured but significant way, as the horror of the Rwandan genocide against the Tutsi reinforced the wrong of violating immigration law.

The Fine Line: Rural Justice, Public Health and Safety, and the Coronavirus Pandemic

In this article, we provide an early glimpse into how the issues of public health and safety played out in the rural United States during the coronavirus pandemic, focusing on Washington State. We utilize a combination of news articles and press releases, sheriff’s department Facebook posts, publicly available jail data, courtroom observations, in-depth interviews with those who have been held in rural jails, and interviews with rural law enforcement staff to explore this theme. As elected officials, rural sheriffs are beholden to populations that include many who are suspicious of science, liberal agendas, and anything that might threaten what they see as individual freedom. At the same time, they expect local law enforcement to employ punitive measures to control perceived criminal activity in their communities. These communities are often tightly knit, cohesive, and isolated, with high levels of social support both for community members and local leaders, including sheriffs and law enforcement. This complex social context often puts rural sheriffs and law enforcement officers in difficult positions. Given the multiple cross-pressures that rural justice systems faced in the wake of the COVID-19 pandemic, we explore the circumstances in which they attempted to protect and advocate for the health and safety of both their incarcerated and their nonincarcerated populations. We find that certain characteristics of rural communities both help and hinder local law enforcement in efforts to combat the virus, but these characteristics typically favor informal norms of social control to govern community health. Thus, rural sheriff’s departments repeatedly chose strategies that limited their abilities to protect populations from the disease, in favor of appearing tough on crime and supportive of personal liberty.

Creating Lightbulb Moments: Developing Higher-Order Thinking in Family Law Classrooms Through Court Observations

This article fills a critical gap in the family law literature by arguing that teaching doctrinal family law in conjunction with the application of established learning theory and pedagogy yields a deeper engagement with the subject matter and leads to more practice-ready lawyers. ABA Standards 301, 303, and 304 do not clearly articulate the distinction between experiential education and experiential earning, doctrinal law classrooms are often bereft of experiential learning activities. By incorporating active learning and inclusive pedagogy in the doctrinal classroom and following recommendations from the MacCrate Report and Family Law Education Reform Project, students will be better prepared to address issues of professionalism and equity in their future practice. In particular, this paper reports on an experiential learning assignment in my Family Law class in which students visited domestic relation court settings to “marry” theory and doctrine with the practice of family law. I describe how incorporating a courtroom observation activity in Family Law stimulates higher-order thinking as categorized by Bloom’s Taxonomy. I discuss trends in learning theory, share the questions students answered in the assignment, and explore some of the students’ observations of and reflections on the family law courtroom, including the effects on litigants, children, and lawyers. I conclude that courtroom observations and written reflections can better prepare students for their future experiences in legal clinics and initial law practice and can be implemented in other doctrinal courses as well. Providing law students with an opportunity to observe court settings helps them integrate theory and practice in doctrinal classes, supports robust learning outcomes, is relatively easy to implement, and is highly rewarding for the student and legal education as a whole.

The Price of Poverty: Policy Implications of the Unequal Effects of Monetary Sanctions on the Poor.

Over the last several decades, with the rise of mass incarceration in the United States and its steep costs, governments at the federal, state, and local levels have dramatically ramped up monetary punishment. Monetary sanctions are now the most common type of criminal penalty in the United States. The growth of fines, fees, and other legal financial obligations (LFOs), and the ensuing legal debt, reflect a shifting of the system's costs onto its primarily low-income and indigent subjects. This study provides an exploration of previously underexamined ways in which monetary sanctions impose distinct burdens on the poor. Interviews with 121 defendants in Texas and New York, along with courtroom observations, demonstrate that criminal legal debt is particularly challenging for people with low incomes in three meaningful ways. First, systems set up to handle indigency claims do not adequately address the needs or complex individual circumstances of those who simply do not have the ability to pay. Oftentimes, alternatives are unavailable or statutorily prohibited. Second, the lack of alternatives to payment lead to compromising situations, which then compel indigent defendants to make difficult choices about how to allocate scant resources. Finally, being encumbered with fines and fees and participating in alternatives like community service comes with taxing time requirements that can prove uniquely challenging for those who are poor. These three findings lead us to propose a series of policy recommendations revolving around three key themes: (a) enhancement of indigency procedures, (b) equity in monetary sanctions, and (c) alleviating burdens by improving accessibility.

“Rotten Row is Rotten to the Core”: The Material and Sensory Politics of Harare's Magistrates’ Courts after 2000

AbstractThis article analyzes how state power and authority were established and critiqued through the performative, material, and sensory characteristics of Harare's Criminal Magistrates’ Courts in Zimbabwe. Drawing on courtroom observations and interviews conducted with human rights lawyers and their clients between 2010 and 2018, this article shows how Zimbabwe's deteriorating political and economic situation after 2000 caused a decline of the material conditions in court. Lawyers and their clients played on this decline to emphasize how the state failed to display its authority. Simultaneously, these material conditions highlighted the ruling party's (ZANU‐PF) preoccupation with law's coercive rather than legitimating utility. A focus on material attributes, however, does not suffice in examining the ways in which court proceedings impose and challenge the authority of the law and of the state. The sensory dimensions of courtrooms also require attention. Within the courtroom, it was vital for actors to engage the visual, auditory, and—importantly—the olfactory reminders of the horrific conditions in police detention and prison. By doing so, lawyers and their clients reasserted and questioned not only the authority of law but also the control certain state actors exerted on and over the bodies and emotions of Zimbabwean citizens within legal spaces.

"Are You Able-Bodied?" Embodying Accountability in the Modern Criminal Justice System.

Monetary sanctions are a common tool for enforcing accountability within the criminal justice system. However, it is unclear how individuals with disabilities who have a limited capacity to work interact with the system of monetary sanctions. Drawing on courtroom observations and interviews in Washington State, we find that although the court does take disability into account when imposing economic sanctions and monitoring payment compliance, individuals with disabilities end up in a perpetual cycle of administrative hearings that can result in serious financial and health consequences for those involved. Implications for findings are discussed.

Community Courts & Race: An Examination of Community Court Judges, Staff, and Racial Dynamics

Current research has found racial disparities in outcomes of problem-solving courts throughout the country. However, most of the research has not explored the causes of these racial disparities. This research qualitatively explores two prominent community courts in the northeast. Themes emerge about courtroom racial dynamics through courtroom observations and semi-structured interviews. The findings indicate that the racial makeup of the staff and judges play a role in maintaining a therapeutic rapport with non-white participants. Suggestions on how problem-solving courts can potentially improve racial dynamics are discussed.

Courtroom Discourse of the ‘Hybrid’ Japanese Criminal Justice System

In the Japanese courtroom, an adversarial orientation is often manifested in the ways in which prosecution and defence counsels each utilize discourse strategies to construct competing narratives, for example, by asking coercive negative questions in cross-examination. Alternatively, counsel’s attempt at building a convincing narrative is at times thwarted by the judge’s inquisitorial orientation to attempt to elicit ‘the truth.’ This paper aims to explore the discourse of Japanese criminal trials, drawing on an ethnographic study of communication in courtroom settings in Japan. The paper specifically focuses on how the hybridity of adversarial and inquisitorial orientations to the justice process are realized in courtroom discourse. Drawing on courtroom observation notes, lawyer interviews and other relevant materials as data, I analyze Japan’s ‘hybrid’ legal system through observing its trial genre structure, narrative construction processes and courtroom discourse strategies. Analysis suggests that blame, moral preaching and attribution of collective responsibility are sometimes incorporated into the process of questioning the defendant and witnesses in a court of law. Within this paper, the analysis of trial discourses reveals that while operating in the framework of adversarial principles, Japanese criminal trials also allow for a discursive practice particular to these courtroom settings which seeks to maintain moral and social order in Japan as a society that is structured on a hierarchical institutional power structure. The paper concludes that specifically designed language powerfully conveys the delivery and attainment of justice, where further research anthropological linguistic work can advance our understandings of the legal process, in Japan and beyond.

Courtroom Discourse of the ‘Hybrid’ Japanese Criminal Justice System

In the Japanese courtroom, an adversarial orientation is often manifested in the ways in which prosecution and defence counsels each utilize discourse strategies to construct competing narratives, for example, by asking coercive negative questions in cross-examination. Alternatively, counsel’s attempt at building a convincing narrative is at times thwarted by the judge’s inquisitorial orientation to attempt to elicit ‘the truth.’ This paper aims to explore the discourse of Japanese criminal trials, drawing on an ethnographic study of communication in courtroom settings in Japan. The paper specifically focuses on how the hybridity of adversarial and inquisitorial orientations to the justice process are realized in courtroom discourse. Drawing on courtroom observation notes, lawyer interviews and other relevant materials as data, I analyze Japan’s ‘hybrid’ legal system through observing its trial genre structure, narrative construction processes and courtroom discourse strategies. Analysis suggests that blame, moral preaching and attribution of collective responsibility are sometimes incorporated into the process of questioning the defendant and witnesses in a court of law. Within this paper, the analysis of trial discourses reveals that while operating in the framework of adversarial principles, Japanese criminal trials also allow for a discursive practice particular to these courtroom settings which seeks to maintain moral and social order in Japan as a society that is structured on a hierarchical institutional power structure. The paper concludes that specifically designed language powerfully conveys the delivery and attainment of justice, where further research anthropological linguistic work can advance our understandings of the legal process, in Japan and beyond.

Litigating without speaking legalese

The increasing number of unrepresented litigants in various jurisdictions raises the question of what challenges these lay people face in their access to justice. This article seeks to examine this by conducting a small ethnographic study and survey in Hong Kong. Based on 6 hours of courtroom observation in two cases and 8 hours of pre-trial, during trial and post-trial interview data obtained from 7 sessions, we show that unrepresented litigants may find navigating difficult legal phrases, legal homonymy, legal genre and linguistic repertoire in court particularly challenging. They also risk overestimating the merit of their case when they deploy lay strategies (i.e. a translation approach or a literal reading approach) to legal interpretation and case preparation. The survey results lend support to our ethnographic study by revealing why unrepresented litigants seem to be ill-prepared for their cases in the eyes of legal professionals. We conclude that unrepresented litigants face both linguistic and legal challenges during their participation in legal processes, and often these challenges are intertwined. We therefore suggest that both linguistic accommodation and legal assistance are essential to help unrepresented litigants participate effectively in legal processes. This is especially important in the adversarial courtrooms of common law jurisdictions, to ensure access to justice for the general public.

Prosecution of female genital mutilation in the United Kingdom: Injustice at the intersection of good public health intentions and the criminal law

Female genital mutilation (FGM) is a harmful traditional practice and a serious public health issue in the countries where it is carried out. It is also a violation of the rights of the girls to whom it is done. The main action taken in the United Kingdom to stop FGM, has been to criminalise it. Public health measures, such as the provision of specialist clinics for those who experience complications of FGM have been implemented as well, and some education in schools is provided. This article is about the injustice that has arisen from the pursuit of prosecutions for FGM in the United Kingdom, in spite of good public health intentions. Since 2012, there have been four criminal cases, several arrests that never came to trial, and for reasons of safeguarding, an unknown number of investigations with the threat of girls being taken into care, and people stopped from travelling with girl children to visit their families in FGM-practising countries. To date, only one criminal case in 2019 – R v. N (FGM) – which is the main subject of this article, has resulted in a guilty verdict. This article outlines this history in relation to the criminal law and uses courtroom observation to analyse what happened in the 2019 case in detail. It argues that the conviction depended on medical opinion and the highly uncertain evidence of two children and was influenced by a spurious link to witchcraft that should never have been permitted in the courtroom. It argues that this conviction is unsafe and should be appealed. It further argues that to use protection orders only because a child’s mother had FGM, in the absence of any evidence of risk, is discriminatory and a form of impermissible racial/ethnic profiling. The article concludes that the United Kingdom should stop recording a history of FGM in women seeking healthcare. It calls for the current law against FGM to be reconsidered and replaced with positive measures for countering FGM which have the support and involvement of the community groups to whom they are addressed.

Negotiating Release? Analysing Decision Making in Bail Court

The vast majority of accused in Canada are released on bail with conditions pending the resolution of their case. As members of the court-room workgroup, the defence, the Crown, and the Justice of the Peace (JP) are tasked with negotiating a set of release conditions in a timely fashion; yet little work has attempted to understand how exchanges between these court-room participants shape the number and type of bail conditions imposed and how closely their in-court actions align with their legally mandated roles. Data collected from court-room observations of 257 bail cases in southwestern Ontario show that the distinct occupational roles of the defence, the Crown, and JPs are blurred within bail proceedings, contributing to a culture of numerous conditions and restrictive releases.