SLSS Court Observation Report

SLSS Court Observation Report   The courtroom is a ritualized space, involving costume, language, spatial organization and so on, and courts, therefore, constitute performative exercises of power. Discuss and analyse some of the ways in which courts demonstrate power and/or power relations. Introduction When it comes to the law, it is often related to social order and justice. In order to enforce the law, some people are given legal power. The courtroom is a place where the use of power is clearly demonstrated. As different courtroom actors play different roles, power is not equally distributed among them. Besides, due to the long history of our legal system, the court is a ritualised space involving a lot of traditional elements and all these elements symbolise power. For example, the judge’s bench is always at a particularly higher level, meaning that the judge holds the ultimate authority. Behind the judge’s bench is the coat of arms of Australia, which symbolises that the judge is appointed to represent the Commonwealth. Therefore, it is not difficult to discover the presence of power disparity if we spend some time observing in a courtroom. Using participant observation as the basic method of gathering data, this article aims to analyse the operations of the court and the power relations between courtroom actors in a courtroom, and to discover whether justice is really served by the court. The observation of court proceedings is carried out in the Local Courts on Levels 4 and 5, Sydney Downing Centre. Judges and Sentencing In accordance with Smith and Natalier (2005: 121), traditional legal concept suggests that judges’ and magistrates’ responsibility is to apply legal principles in a rational and objective way; each party tells their own story, and then the judge, or the jury (if applicable) determines which version is true, on the basis of evidence. Whilst in most of the ‘daily’ criminal cases there are no juries, such that the outcome of a case is solely the judge’s decision. While we may think that evidences always reveal the truth, in some circumstances there are not any solid evidences such as seized exhibits and surveillance camera recordings, nor any third person individuals who have witnessed the happening of the crime. The whole case simply relies on the statements provided by parties involved, or the testimony of the victim in the crime. As a consequence, the judge has control over the outcome of the case to a very large extent. During the observation in Sydney Downing Centre Local Courts, there were quite a number of cases of this kind. In one of them, the only evidence was a self incriminating statement made to the police by the defendant, in which the defendant admitted that he had committed the crime. The defense counsel, however, claimed that the statement was made under duress and sustained pressure, and therefore he asked for the exclusion of such evidence. The magistrate ruled in favour of the defendant after the ‘voir dire’ procedure. From the above, it is observed that while judges exercise their greatest power in deciding whether the prosecution’s or the defendant’s version is true, many factors are taken into account in order to protect the rights of the accused. On the other hand, there are exceptional cases. In another court proceeding observed, the magistrate suggested that the defendant’s statement was highly unreliable, and he pointed an accusing finger at the defendant saying that: ‘You know what you did.’ The defendant even nodded her head. But what comes as a surprise was that the defendant was found not guilty because the prosecution failed to prove its case beyond a reasonable doubt. This example illustrates the idea of presumption of innocence, and questions whether defendants’ interests can sometimes be overprotected. Knowing that the defendant must have committed a crime, the judge does not necessarily have enough power to convict him/her. After all, the power to prove the case beyond doubt lies on the prosecution’s side, and it is the prosecution’s responsibility to make clarifications on the doubt. Otherwise, the benefit of doubt goes to the defendant. Sentencing is also a way that judges demonstrate their power. With reference to Smith and Natalier (2005: 129), judges have to consider many factors including the seriousness of the offence, previous criminal record of the defendant, the range of penalties applicable, harm caused to the victim, and recent court decisions of similar offences. As observed in the courtroom, the penalties are always similar for cases of the same nature, and magistrates often prefer to obtain assessment reports from probation and parole officers to see if community service orders would be a suitable alternative. It is also noteworthy that a 25% discount of the penalty is usually awarded for a defendant entering a guilty plea, as an incentive for the defendant to face the consequence of wrongdoing. Thus, it is shown that judges tend to achieve restorative justice, and they decide appropriate sentences in the aim to reduce the risk of re-offending. Courtroom Languages Language is always a form of demonstrating one’s professional knowledge, while knowledge is related to power. Power relationships can be easily observed by looking into the use of language in the courtroom. The hierarchy of power is most explicitly displayed when lawyers refer to magistrates as ‘Your Honour’ or ‘Your Worship’. A magistrate in the Downing Centre courtroom seemed to notice this, and she called the defense counsel ‘mate’. However, for a defendant, the use of legal language can be distressing. They are often needed to synchronise their answers and stances, in a way far removed from the conventions of everyday communications of ordinary people (Carlen, 1976: 51). During the observation, a defendant entered a guilty plea for a minor offence, but he refused to admit the brief facts. The magistrate told him: ‘If you would like to go for a guilty plea, you must agree to the facts, as they are the essence of the charge’. The defendant explained: ‘I plead guilty just because I don’t want to cause any more trouble’. The magistrate said: ‘But if you don’t admit the facts, we will treat this as not guilty’. The defendant looked confused, said: ‘I agree’. As suggested by Carlen (1976: 54), this demonstrates the way that court proceedings proceed, regardless of the fact that many people are actually unable to understand what is going on, and to participate in what is going on. As a result, it is barely surprising that many defendants feel helpless in the court, especially when they do not have a lawyer representing them. Power is also displayed when courtroom actors are eliciting information from witnesses. Witnesses are required to answer in response to the particular question, and they are not allowed to suggest other things which they believe to be important (Smith and Natalier, 2005: 129). During the observation, a witness was testifying and he got unamused when he was asked a series of short questions related to the identification of the defendant, such as ‘how far were you apart from the defendant when you spotted him at the scene?’. The witness asked ‘Is this important?’ and he got rebuked. Questions are usually asked by courtroom actors in a more direct way during cross-examination, but they can be irritating when one side is putting its case to the other side’s. In the trial hearings observed, witnesses are always asked manipulative questions like ‘I put it to you that you have been lying to us, do you agree with that?’, while they are only allowed to simply answer either ‘Yes’ or ‘No’ but not to give explanations. This can be unfair as witnesses are not given any chance to further clarify on false accusations. Conclusion After the observation on court judgement and sentencing procedures, it is acknowledged that judges and magistrates try their very best to achieve justice by carefully exercising their supreme power. The principle of procedural due process is especially remarkable in promoting fairness, despite that there are some limitations in serving justice. Be that as it may, it is undeniable that uneven power distribution often exists in a courtroom. While legal representatives hold certain power, defendants and witnesses have no say. Being unfamiliar with the complex rules and procedures, these non-legal representatives sometimes do not even understand what is going on in the courtroom. All in all, it remains questionable whether the way that court proceedings are carried out can really accommodate fair treatment for the powerless. References 1.Carlen, P. 1976. The Staging of Magistrate’s Justice. British Journal of Criminology. 16(1): 48-55. 2.Smith, P. and Natalier, K. 2005. Understanding Criminal Justice: Sociological Perspectives. London: Sage. Page 1

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