Performing Authority: Communicating Judicial Decisions in Lower Criminal Courts

Abstract

In the courtroom legal authority must be performed by the presiding judicial officer. It is also a social situation where information and emotions must be managed in face-to-face interactions. This paper investigates how magistrates perform their authority in the delivery of decisions in open court. An observational study of criminal cases in Australian lower courts shows that magistrates communicate sentencing decisions in a distinct manner. Magistrates frequently look and speak directly to the person being sentenced (the defendant), in line with everyday conversational conventions, and preface their decision with explanations, which allow for some engagement with the defendant. When delivering other kinds of decisions (in criminal cases), such as adjournments, magistrates display less engagement with the defendant. These findings underscore the important ways in which the embodied presence of the defendant and the interactional dimensions of the courtroom can impact on the legal process and the legitimacy of judicial authority.

Judging in lower courts: Conventional, procedural, therapeutic and feminist approaches

“…Sentencing is a key location where a philosophy of judging may manifest itself in everyday practice. Sentencing in Australia, for example, is often an area of wide judicial choice (Mackenzie et al , 2010), and most sentencing decisions in lower courts are given ex tempore (Bolton, 2012; Roach Anleu and Mack, 2013b). An impersonal judicial manner may be especially appropriate during sentencing, as a way to reinforce the wrongfulness of the criminal conduct (Hunter, 2005; Ptacek, 1999; Were v. Police [2003] SASC 116).…”

“…When a judicial officer imposes sentence, giving reasons is often legally required (Australian Law Reform Commission, 2006; Mackenzie, 2005). Communicating reasons allows the magistrate to highlight the law and facts that underpin the sentence, distancing her- or himself from personal responsibility for the substance and effect of the decision (Roach Anleu and Mack, 2013b; Tata, 2007). Stating the basis for the decision, including specific legal requirements, reinforces the conventional adversarial norm of the judge as a neutral decision-maker who must apply the law, and demonstrates that the sentence results from a dispassionate evaluation rather than from bias or emotional reaction (Roach Anleu and Mack, 2005; Thomas, 1963).…”

“…18–19). The considerable, relatively informal interaction which may occur between the judicial officer and the parties in lower courts, especially with unrepresented parties, may allow judicial officers to communicate with a participant in ways that will enhance perceived procedural fairness (Tyler, 1984; 1988; 1990). Conduct associated with procedural fairness might include a judicial officer communicating effectively to a defendant, such as by explaining processes and decisions carefully (Mack and Roach Anleu, 2011; Roach Anleu and Mack, 2013b). Meeting ordinary conversational expectations, such as looking at and speaking directly to a defendant, conveys respect.…”

“…Other features of the lower-court environment include the pressure of time and the volume of cases coupled with the need to meet court efficiency performance measures, limited information or ability to elicit information (whether from the parties or other sources), and limited responses in terms of decisions, including sentencing (Mack and Roach Anleu, 2011; Roach Anleu and Mack, 2013b; Hunter, 2005; Mileski, 1971). Judicial officers are aware of the practical contingencies of their work context and need to manage them in various ways (Fielding, 2011; Mack and Roach Anleu, 2007).…”

A qualitative examination of the experiences of defence lawyers in working with emotional material in the criminal law

“…Despite the insistence that the law and its legal actors are unemotional, emerging research has begun to examine the emotional experiences of legal professionals and their use of emotional displays in the courtroom (e.g. Bergman Blix & Wettergren, 2016;Flower, 2019;Holt, 2015;Roach Anleu & Mack, 2015). This research has highlighted the subtle use of emotions when presenting evidence to emphasise certain facts (Flower, 2018;Bergman Blix & Wettergren, 2016).…”