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The witness in court : problems of demeanor in the courtroom setting Wilder, Gillian M. 1969

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THE WITNESS IN COURT: PROBLEMS OF DEMEANOR IN THE COURTROOM SETTING by GILLIAN M. WILDER B.Sc.(Soc.) University of London, 1959 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS in the Department of ANTHROPOLOGY AND SOCIOLOGY We accept t h i s thesis as conforming to the required standard. THE UNIVERSITY OF BRITISH COLUMBIA A p r i l , 1 9 6 9 . In present ing th is thesis in p a r t i a l f u l f i lment of the requirements for an advanced degree at the Un iver s i t y of B r i t i s h Columbia, I agree that the L ibrary sha l l make i t f r e e l y ava i l ab le for reference and Study. I fur ther agree that permission for extensive copying of th is thesis for s cho la r l y purposes may be granted by the Head of my Department or by his representat ives. It is understood that copying or pub l i ca t i on of th is thesis for f i n anc i a l gain sha l l not be allowed without my wr i t ten permission. Department of /T^^y^^^f^^^-^ <x*-~#C ^ ^ - z ^ r ^ - - g / - v The Un ivers i ty of B r i t i s h Columbia Vancouver 8, Canada Date ^/^^ J<?£C. S Abstract The concern of t h i s thesis i s to diseover sone ipf the basic p r i n c i p l e s which structure int e r a c t i o n i n the courtroon. The data on which the analysis i s based consists of material collected by observation i n the Magistrates' Courts. Various "rules" which structure s o c i a l i n t e r a c t i o n i n general are examined as to t h e i r relevance to courtroom inte r a c t i o n and problems related to the presentation of s e l f of lay participants i n court. I t i s f i r s t proposed that various of these "rules" are subject to v i o l a t i o n i n the courtroom., These v i o l a t i o n s f a c i l i t a t e the purposes of the court i n that they make i t possible fer witnesses' arguments to be examined exhaustively. The effects of these v i o l a t i o n s on witnesses demeanor, considering the s p e c i f i c s e t t i n g of the court, are described and analysed. Following t h i s , the attribut-es of Vprepe-r demeanor", defined as demeanor acceptable te ether i i i ; p a r t i c i p a n t s , f o r l a y witnesses i n the courtroom are i s o l a t e d and examples g i v e n of witnesses who f a i l e d to show these a t t r i b u t e s d u r i n g t h e i r appearances i n c o u r t . Ah a n a l y s i s i s presented of the process of c a t e g o r i z a t i o n of these witnesses as u n f i t i n t e r a c t a n t s by p r o f e s s i o n a l courtroom p a r t i c i p a n t s , and the consequences of these c a t e g o r i z a t i o n ? f o r the witn e s s e s . Those who f a i l e d to show "proper demeanor" are c o n t r a s t e d with witnesses whose appearances i n co u r t were more s u c c e s s f u l . F i n a l l y , the kinds of e x p l a n a t i o n s and arguments which are put forward as p a r t of the p r e s e n t a t i o n of s e l f by l a y p a r t i c i p a n t s i n co u r t are examined with p a r t i c u l a r r e f e r e n c e to whether or not they are seen as a p p r o p r i a t e by l a y and p r o f e s s i o n a l p a r t i c i p a n t s . i v . TABLE-OF CONTENTS Page A b s t r a c t i i Table of Contents i v Aolcnowledgonents v Cha.pt er 1 i n t r o d u c t i o n 1 2 Sone P r i n c i p l e s of Courtroon I n t e r a c t i o n 19 3 Deneanor i n the Courtrooms What i s A c c e p t a b l e 68 k P r e s e n t a t i o n of Deneanor 121 5 C o n c l u s i o n 153 B i b l i o g r a p h y 158 V . I would l i k e to thank Dr. Roy-Turner f o r his help and encouragement during a l l stages of this study, I would also l i k e to acknowledge the kindness of Magistrate Douglas Hume and the o f f i c e r s of his Cburt without whose assistance t h i s thesis could not have been written. 1; CHAPTER 1 INTRODUCTION This study arises out of a general interest i n the structure of s o c i a l i n t e r a c t i o n and, in p a r t i c u l a r , the structure of interaction i n the court-room in r e l a t i o n to the problem of demeanor. It seeks through an analysis of the s i t u a t i o n of the lay participant during the conduct of a t r i a l , to show the various factors of the courtroom s i t u a t i o n and the' adversary system which influence how each lay participant behaves during his appearance i n Court and how t h i s i s interpretated by and influences the responses of the rest of the actors present. The '.data on which the analysis i s based was c o l l e c t e d over a period of three months i n the Vancouver Magistrates' Courts. The t h e o r e t i c a l framework of the study depends to a certain extent on the work of A l f r e d Schutz, who was concerned with the search f o r the basic p r i n c i p a l s of F o c i a l interaction i h general. 2. One, of Schutz' chief contributions was his work on the attributes of common sense knowledge and the importance of ''thinking?.as usual" to the members of a p a r t i c u l a r culture."*" Thinking as usual may be defined as the system of knowledge which a member of a culture acquires by virtue of his membership. Schutz' concept has some important ingredients: "the system of knowledge thus acquired (through c u l t u r a l membership) incoherent, inconsistent and only p a r t i a l l y clear as i t i s takes on f o r the members of the in-group the appearance of a s u f f i c i e n t coherence, c l a r i t y and consistency to give anybody a reasonable chance of understanding and being understood. Any member born within the group accepts the ready made standardized scheme of the c u l t u r a l pattern handed down to him by ancestors, teachers and authority as an unquestioned and unquestionable guide i n a l l the situations that normally occur within the s o c i a l world. ^ Thus Schutz stressed the unquestioned and unquestionable aspects, which could be defined as the normative aspects, of "thinking as usual". I take i t that members of bur p a r t i c u l a r culture have some 3-kind of recipe drawn frora ' jthinking as usual" which w i l l govern t h e i r actions, verbal and otherwise, i n a s o c i a l s i t u a t i o n and that one such s i t u a t i o n i s an appearance i n court. Such an appearance, however, may be defined not sinply as a part of ordinary s o c i a l i n t e r a c t i o n but as part of the p a r t i c u l a r series of events which take place i n court and may be terned the j u d i c i a l process. Interaction i n court i s structured not sinply by the "thinking as usual" which governs s o c i a l situations i n general but also t^e "thinking as usual" of actors whose work setting i s the courtroon. Like Schutz, Srving Goffraan and Harold Garfinkel have been concerned with the investigation of the basic p r i n c i p l e s of s o c i a l i nteraction i n s o c i a l situations i n general. They have also been concerned with the p r i n c i p l e s which structure in t e r a c t i o n i n p a r t i c u l a r s o c i a l settings, Garfinkel has proposed that nenbers of a p a r t i c u l a r culture share "background expectancies" which allow nenbers of the same culture to make similar sense of what goej on within that culture.^ "Common understanding" are s o c i a l l y sanctioned grounds of inference which members of the culture share about ways i n which s o c i a l i nteraction may be interpreted.^ Members of s p e c i f i c c u l t u r a l settings share additional common understandings about matters relevent to that p a r t i c u l a r s e t t i n g . ^ Both Goffman and Garfinkel have stressed the normative aspect of common understandings. Goffman refers to the unspoken ^ules of interaction and observes that, "Infraction (of these rules) c h a r a c t e r i s t i c a l l y leads to feelings 7 of uneasiness and negative s o c i a l sanctions". Garfinkel undertook a series of "experiments" to demonstrate the reaction of members of our culture to break downs of common understandings and i n doing Q so was able to isolate some of t h e i r properties. He refers to the "enforceable character" o i ' common understandings. "common understandings consist of the enforceable character of action i n compliance with the expectations of l i f e as a morality. Common sense knowledge of the facts of s o c i a l l i f e for the members of society i s i n s t i t u t i o n a l i z e d ^ knowledge of the r e a l world.' ° I take i t that Garfinkel i s re f e r r i n g , here,-to the same pheomenon, that i s , the l i k e l i h o o d of breakdown of expectations producing negative s o c i a l sanctions, as that to which Goffman was r e f e r r i n g i n the passage c i t e d i n the previous paragraph. Garfinkel distinguishes between common understandings as product which he defines as, ''shared agreement on substantive matters that what i s said w i l l be made out i n accordance with methods that need not be specif ied" , a n d common understandings as process, defined as "various methods whereby something the person says or does i s recognized to accord with a rule".'3""'" Normally this process of not specified; i t i s taken for granted as part of what every competent member of a p a r t i c u l a r culture or c u l t u r a l setting knows. Following Garfinkel, i t ?iay be observed that one of the properties of common 6. discourse i s that members of ourcc u l t u r e engaged i n conversations which are c h a r a c t e r i s t i c a l l y "short hand" versions of the unspoken process of inf e r e n c e , i n t e r p r e t a t i o n and use of assumption which goes on between i n t e r a c t a n t s . This study i s concerned i n part w i t h the process aspect of common understandings, whereby an a c t i o n , i n c l u d i n g a v e r b a l a c t i o n , i s seen to accord w i t h a r u l e recognized by members to be in operation i n a p a r t i c u l a r s e t t i n g . I t i s hoped to make c l e a r the processes i n v o l v e d i n the operation of common understandings i n the courtroom, and to show how they s t r u c t u r e the i n t e r a c t i o n i n that s e t t i n g . "What i s understood" by courtroom a c t o r s i s reported i n the a n a l y s i s together w i t h examples of i n t e r a c t i o n drawn from the t r i a l s which were observed. In the sec t i o n s of the study where examples of i n t e r a c t i o n are analysed., the utterances of the p a r t i c i p a n t s are set out on the l e f t hand side of the page and a commentary on the i n t e r a c t i o n on the r i g h t hand side 7. of the page. T h i s method of p r e s e n t i n g data i s analogous to t h a t used i n the r e p o r t i n g of a problem which G a r f i n k e l set some of h i s stud e n t s . They were asked to r e p o r t "common c o n v e r s a t i o n s " together with what was understood by i n t e r a c t a n t s i n v o l v e d i n the 12 c o n v e r s a t i o n s . In r e p o r t i n g t h i s study G a r f i n k e l suggested: "That one not read the r i g h t hand column as corresponding contents of the l e f t , and. that the students' t a s k of e x p l a i n i n g what the c o n v e r s a t i o n a l i s t s t a l k e d about d i d not i n v o l v e them i n e l a b o r a t i n g the contents of what the c o n v e r s a t i o n a l i s t s s a i d . (He suggested) i n s t e a d that t h e i r w r i t t e n e x p l a n a t i o n s c o n s i s t e d of t h e i r attempts to i n s t r u c t (him) i n how to use what the p a r t i e s said, as a method, f o r seein g what the c o n v e r s a t i o n a l i s t s s a i d . -'-3 iiy commentary on the courtroom d.ata i s an attempt to d.escribe what appeared to be the " i n n e r temporal course of i n t e r p r e t i v e work""1"^ i n G a r f i n k e l ' s terms which took place d u r i n g the appearances and. t r i a l s I observed, i n the Hagistrates' 1 Court. My c l a i m of be i n g able to .make sense of the i n t e r a c t i o n 8. i s based on my p o s i t i o n as a member of the same general c u l t u r e as the l a y i n t e r a c t a n t s i n cou r t , liy p a r t i c u l a r i n t e r e s t , however, i s to make s p e c i f i c the aspects of common understandings of our common c u l t u r e which are not normally s p e c i f i e d by i n t e r a c t a n t s i n everyday s o c i a l s i t u a t i o n s , or as G a r f i n k e l puts i t "that need be s p e c i f i e d only on s p e c i a l occasions." With regard to common understandings shared by p r o f e s s i o n a l courtroom a c t o r s and s p e c i f i c to the courtroom s e t t i n g , some f a m i l i a r i t y was gained by reading, t a l k i n g w i t h lawyers (although t h i s was not done on a systematic b a s i s ) and int e r v i e w s and conversations w i t h the magistrate f o l l o w i n g each se s s i o n of data c o l l e c t i o n . I n a l l about t h i r t y hours of tape recordings were c o l l e c t e d i n court. I t i s on these recordings, together w i t h notes on non-v e r b a l a c t i o n taken during the observation p e r i o d s , 16 that the bulk of the a n a l y s i s r e s t s . 9-• The .data i s intended to show that members of our common c u l t u r e are able to understand each other and make s i m i l a r inferences and s i m i l a r sense of what i s not e x p l i c i t l y s t a t e d during i n t e r a c t i o n . I t a l s o shows, however, a d i f f e r e n t degree of s o p h i s t i c a t i o n on the part of lay and p r o f e s s i o n a l a c t o r s i n the courtroom i n r e c o g n i z i n g that a c e r t a i n a c t i o n accords w i t h a r u l e i n operation i n the s e t t i n g . In other words c e r t a i n common understandings s p e c i f i c to the courtroom s e t t i n g were not shared by l a y i n t e r a c t a n t s . One important d i f f e r e n c e between l a y and p r o f e s s i o n a l a c t o r s was t h a t , whereas l a y witnesses f r e q u e n t l y took f o r granted that the processes of unspoken common understandings inherent i n the general c u l t u r e would o b t a i n i n the courtroom s e t t i n g , i t seemed to be the aim of lawyers and p r o f e s s i o n a l courtroom a c t o r s g e n e r a l l y to make the i m p l i c i t e x p l i c i t , as part of the process of f i n d i n g out "what r e a l l y happened" about a set of events. Frequently xtfitnesses i^ere pressed to be more s p e c i f i c when they expected " s o c i a l l y sanctioned 10. grounds of i n f e r e n c e " to "be i n o p e r a t i o n . S i m i l a r l y , witnesses were not always aware of the ^ u b i e t i e s of the j u d i c i a l process and the adversary system. A witness, f o r i n s t a n c e , might not see the importance of a c e r t a i n statement which was c r u c i a l to the case as i n t e r p r e t e d by the p r o f e s s i o n a l a c t o r s . Or the s i g n i f i c a n c e of c e r t a i n techniques, f o r example, those of cross-examination, might be d i f f e r e n t depending on whether the i n t e r a c t a n t was l a y or p r o f e s s i o n a l . Thus, a witness may i n t e r p r e t p a r t of a c r o s s -examination as an unreasonably h o s t i l e a t t a c k on h i m s e l f while p r o f e s s i o n a l p a r t i c i p a n t s i n t e r p r e t e d t h i s as simply p a r t of cross-examination. Courtroom I n t e r a c t i o n and the Demeanor of Witnesses The focus of t h i s study i s on the problem of demeanor i n the courtroom as i t r e l a t e s to the management of impressions by l a y i n t e r a c t a n t s . The term ''demeanor" i s used to denote c e r t a i n aspects of the i n t e r a c t a n t which Goffman has examined u s i n g the 17 concepts of " f a c e " , " l i n e " and "demeanor". 11. Goffman d i s t i n g u i s h e s between " f a c e " , "the p o s i t i v e s o c i a l value a person e f f e c t i v e l y claims f o r h i m s e l f and l i n e , "The p a t t e r n of v e r b a l and non-verbal a c t s by which he expresses h i s view of the s i t u a t i o n and through t h i s h i s e v a l u a t i o n of the p a r t i c i p a n t s , p a r t i c u l a r l y h i m s e l f . "-^ 9 He proposes that an i n t e r a c t a n t must m a i n t a i n proper demeanor ( d e f i n e d as demeanor which i s acc e p t a b l e to the other i n t e r a c t a n t s ) i n order 'to be able to c l a i m f a c e . Goffman's term demeanor i n v o l v e s , " a t t r i b u t e s d e r i v e d from i n t e r p r e t a t i o n s others make of the way i n which the 2 i n d i v i d u a l handles h i m s e l f d u r i n g s o c i a l i n t e r c o u r s e . " I t i s t y p i c a l l y conveyed though deportment, dress and b e a r i n g . These as p e c t s of the management of impressions by an i n d i v i d u a l i n v o l v e d i n s o c i a l s i t u a t i o n s w i l l be subsumed under the term demeanor i n t h i s study. T h i s i s meant to i n c l u d e the impression others r e c e i v e and the assessment they make of the p h y s i c a l a t t r i b u t e s and the v e r b a l l i n e which witnesses present i n c o u r t . 12. I t i s maintained t h a t v a r i o u s f a c t o r s of the s i t u a t i o n i n the I-iagistrate' s Court s t r u c t u r e the i n t e r a c t i o n and make the p r e s e n t a t i o n and maintenance of demeanor p r o b l e m a t i c . On the most g e n e r a l l e v e l the f a c t of a t r i a l t a k i n g p l a c e and the i n s t i t u t i o n a l i z e d adversary system p r e s c r i b e s a. c e r t a i n procedure which i s p a r t of the common understandings of p r o f e s s i o n a l a c t o r s and presumably of some a t any r a t e of the l a y p a r t i c i p a n t s . The purpose of the co u r t i s to determine, w i t h i n a c c e p t a b l e l i m i t s of p r o b a b i l i t y , the " t r u t h 1 ' about a p a r t i c u l a r s et of events and to judge a man g u i l t y or not g u i l t y . Evidence i s produced about the events and the judge makes a d e c i s i o n . In a c r i m i n a l case the Crown and the accused r e p r e s e n t opposing s i d e s . Each presents h i s case and each i s a b l e to c a l l w i t n esses. As We i n s t e i n s t a t e s , under the adversary system, "the s i d e which c a l l s a witness i s p l a c e d i n the p o s i t i o n of vouching f o r the witness and the opponant assums the burden of a t t a c k i n g h i s c r e d i b i l i t y " . ^ The witness presents 13-h i s evidence and the opposing s i d e has the r i g h t of cross-examination, which has been d e s c r i b e d as "a 22 h o s t i l e attempt to shake the w i t n e s s 1 testimony". The d e c i s i o n of the c o u r t must be made on the b a s i s of i n t e r a c t i o n i n the courtroom which i n c l u d e s the evidence of witnesses on both s i d e s about the events i n q u e s t i o n . Cn occasions one or both s i d e s w i l l t r y to b o l s t e r t h e i r case by producing a p i e c e of p h y s i c a l evidence i n the form of an e x h i b i t . Since t h i s i s a l l the judge has, i t f o l l o w s that h i s o p i n i o n of whether or not the witness i s t e l l i n g the t r u t h i s p a r t i c u l a r l y germane to h i s making the d e c i s i o n i n the case. Thus the e v a l u a t i o n of a w i t n e s s 1 demeanor i s c r u c i a l to h i s c r e d i b i l i t y . C o n s i d e r i n g ' t h e adversary system which s a n c t i o n s t h i s h o s t i l e attempt to shake testimony, i t can be seen that the management of impressions f o r l a y i n t e r a c t a n t s i n the courtroom i s p a r t i c u l a r l y p r o b l e m a t i c . The l a y i n t e r a c t a n t ( h e r e i n a f t e r the term "witness" w i l l be used as a g e n e r a l term f o r 1*1.. l a y i n t e r a c t a n t . I t i s meant to i n c l u d e the accused, defendant, complainant or witness. The more s p e c i f i c terms w i l l be used when they are necessary to make the a n a l y s i s c l e a r e r ) must present h i m s e l f i n a c e r t a i n f a s h i o n and take care to meet t h r e a t s to h i s demeanor when they occur. Goffman has been concerned to i s o l a t e c e r t a i n r u l e s of i n t e r a c t i o n as b eing those to which p a r t i c i p a n t s adhere i n c o n v e r s a t i o n s d u r i n g encounters and i n o r d i n a r y s o c i a l s i t u a t i o n s . Those r e l a t i n g to the p r e s e n t a t i o n of s e l f are of p a r t i c u l a r r e l e v a n c e here.^3 i t j _ s proposed that the r u l e s which Goffman has d e f i n e d as s t r u c t u r i n g everyday i n t e r a c t i o n , i n p a r t i c u l a r those which serve to uphold the p r e s e n t a t i o n of s e l f and to m a i n t a i n the l i n e and demeanor of the i n t e r a c t a n t , are s u b j e c t to i n f r a c t i o n i n the courtroom.- I t i s maintained t h a t these i n f r a c t i o n s f a c i l i t a t e the purposes of the court i n t h a t the c o u r t i s enabled to enquire e x t e n s i v e l y i n t o the witness' argument, and assess 15-h i s demeanor d u r i n g t h i s e nquiry. Such e n q u i r i e s are o r d i n a r i l y p r o s c r i b e d d u r i n g s o c i a l i n t e r a c t i o n by the o p e r a t i o n of r u l e s of avoidance and t r u s t . These r u l e s w i l l be examined as to t h e i r r e l e v a n c e to demeanor i n the courtroom i n Chapter I I . Chapter I I i n c l u d e s an examination of methods by which the witness' demeanor i s " t e s t e d " d u r i n g c r o s s -examination and witnesses r e a c t i o n s to these e x p e r i e n c e s . An a n a l y s i s of what c o n s t i t u t e s "proper demeanor" i n co u r t i s undertaken i n Chapter I I I - Chapter IV i s an e x p l o r a t i o n of l a y and p r o f e s s i o n a l common understandings about the p r e s e n t a t i o n of demeanor by the witness. FOOTNOTES: CHAPTER I 1. See A l f r e d Schutz "The Stranger", C o l l e c t e d Papers, Volume II,. Maurice Natanson (Ed.) Martnius N i g h o f f : The Hague, 1962. 2. Op. c i t p. 95 3. The "unquestioned" aspects of Schutz' " t h i n k i n g as u s u a l " are s i m i l a r to the "taken f o r granted" aspects of G a r f i n k e l ' s concept of "common understandings". 4. Ha r o l d G a r f i n k e l "Studies of the Routine Grounds of Everyday A c t i v i t i e s " , S t u d i e s i n Ethnomethodology, P r e n t i c e H a l l , Englewood C l i f f s , New Jersey^ 1967. 5. Lpc. c i t . 6. See G a r f i n k e l ' s work on the Los Angeles S u i c i d e P r e v e n t i o n Centre e t c . r e p o r t e d i n "What i s Ethnomethodology", S t u d i e s i n Ethnomethodology, p. 11 f f . 7. E r v i n g Goffman, "The Nature of Deference and Demeanor:, I n t e r a c t i o n R i t u a l , Doubleday and Company, Garden C i t y , N . Y . 1967-8. G a r f i n k e l , S t u d i e s of the Routine Grounds of  Everyday A c t i v i t i e s , pp. 35 - 7o. 9. I b i d , p. 53 10. G a r f i n k e l , "What i s Ethnomethodology, p. 2h 17. 11. Lpc. c i t . 12. Garfinkel, Studies of the Routine Grounds of  Everyday A c t i v i t i e s , p. 3&~* 13. Garfinkel, What i s Sthnomethodology, p. 27 lb. Op. c i t . p. 525 15. Garfinkel, Remarks on Ethnomethodology, M.S.S., U.C.L.A., 1 6 . During the data c o l l e c t i o n I took the role of non-participant observer i n the courtroom. As far as I could judge my presence had no appreciable ef f e c t on the interaction. Since the court i s open to the public I simply joined the other observers who are normally present i n a magistrate's court. My tape recorder was placed next to the O f f i c i a l Court tape recorder, with the magistrate's permission. It was operated by the Court Reporter. I was able to take notes from the benches provided for the public without, apparently, disrupting the int e r a c t i o n i n any way. 17. See Erving Goffman, "Facework" and "Deference and Demeanor", Interaction Liitual, pp. 5 - ^6 and ^7 - 96. 18. Goffman, Facework, p. 5* 19• Lpc. c i t . 1 8 * 20. Goffman, Deference and Deneanor; p. 78. 21. Jack B, vleinstein "The Law's Attempt to Obtain Useful Testimony" Journal of Social Issues,-, Volume 13, No. 2 1957, P. 7-22. Loc. c i t . 23, Goffman, Facework and Deference and Demeanor passim. 19.* CHAPTER II SOME PRINCIPLES OF COURTROOM INTERACTION Chapter I discussed the various aspects of the courtroom s i t u a t i o n which structure interaction between the participants. On a.;general l e v e l i t was proposed that the courtroom s i t u a t i o n , including the various interests of the participants and the adversary system which sanctions a hos t i l e attempt, to shake testimony, structures the int e r a c t i o n . On a less general leveL, i t i s proposed that some of the p r i n c i p l e s of i n t e r a c t i o n put forward by Goffman, together with some attr i b u t e s of common discourse pointed out by Garfinkel, are relevent to the actual utterances produced during a t r i a l . A common thread which runs through s o c i a l i n t e r a c t i o n i n general and i s related to the actual utterances produced i n Court, i s G a r f i n k e l 1 s concept of "common understandings", discussed i n Chapter I. The statement that interactants "take f o r granted that what i s said w i l l be mrde out .in accordance with 20 i methods t h a t heed not be specified";"'" appears to be p a r t i c u l a r l y r e l e v e n t to courtroom i n t e r a c t i o n ; I t was observed t h a t witnesses u s u a l l y expressed themselves i n terms s i m i l a r to those used i n everyday i n t e r a c t i o n ; making the assumption that p r o f e s s i o n a l a c t o r s w i l l make the i n f e r e n c e s , understand the i m p l i c a t i o n s , and accept the assumptions which are c u l t u r a l l y s a n c tioned as i n h e r e n t i n t h e i r d i s c o u r s e . These common c u l t u r a l e x p e c t a t i o n s , however, are f r e q u e n t l y v i o l a t e d i n the courtroom. The cou r t does not take f o r granted that what i s s a i d i s b e i n g made out i n accordance w i t h c e r t a i n common unde r s t a n d i n g s . I t seems to be the task of lawyers examining t h e i r own witnesses or cross-examining those of the other s i d e to make the i m p l i c i t e x p l i c i t . Thus, the " e l i p t i c a l t a l k " or "loose t a l k " t y p i c a l of everyday i n t e r a c t i o n i s o f t e n not s u f f i c i e n t l y e x p l i c i t f o r the courtroom. T h i s i s one aspect of courtroom i n t e r a c t i o n which w i l l be examined i n the a n a l y s i s . Goffman proposed t h a t there are two types 21. of "rules" which structure s o c i a l i n t e r a c t i o n i n geneial and serve p a r t i c u l a r l y to maintain interactants "demeanor". That i s , avoidance r i t u a l s and presentation r i t u a l s . The p r i n c i p l e of a voidance (rules regarding keeping distance), i t s implications in everyday int e r a c t i o n and'its operation i n courtroom inte r a c t i o n i s p a r t i c u l a r l y relevent to thi s study. Goffman proposes that rules of avoidance help to 3 maintain both "face" and "demeanor". The p r i n c i p l e of trust (my term) i s one which Goffman relates to the maintenance of face. 1 4' (Mote: in t h i s thesis Goffman's " l i n e " "face" and "demeanor" are subsumed under the term "demeanor" which includes verbal l i n e or argument SEE CHAPTER I ) . This chapter examines some s p e c i f i c propositions drawn from Goffman's work i n r e l a t i o n to the maintenance of demeanor. It provides instances of i n f r a c t i o n s of these propositions which were observed in the courtroom and the reactions of witnesses when faced with them. It i s suggested 22. that these infractions f a c i l i t a t e the purpose of the court and are sanctioned by the adversary system and the necessity i h court f o r witnesses to provide explanations for t h e i r involvement i n the case; They are part of the background expectancies of the courtroom. This i s at variance with the assumption that those involved i n ordinary int e r a c t i o n are expected to adhere to these p r i n c i p l e s . It would be misleading to imply, however, that infractions of these p r i n c i p l e s never occur during every day s o c i a l i n t e r a c t i o n . The rules of avoidance may be disregarded; embarrassing and humilitating moments are sometimes precipitated by s o c i a l actors; and tactless questions may be asked. 3y the very fact, however, that such matters are normatively proscribed, i n f r a c t i o n i s l i k e l y to have cer t a i n marked effects on the interactant whose demeanor i s threatened. The person who finds himself i n such a si t u a t i o n . ; i n wrong face" i n Goffman 1s terms^ 2 3 . 6 expediences ''lack df judgmental support". Goffman proposed that " f e l t lack of judgmental support (from an encounter) may take him aback, confuse him and momentarily incapacitate him as an interactant";? Such instances by the nature of the si t u a t i o n are frequent i n the courtroom. Some witnesses, especially some defendants, apparently f e e l themselves to be i n wrong face throughout t h e i r appearance i n court. This i n spite of the l e g a l d e f i n i t i o n that they are technically innocent u n t i l proved g u i l t y . The most frequent instances, however, of f e l t lack of judgmental support may be observed when rules of avoidance and trust are broken. In focusing on the witness' reactions to infr a c t i o n s of normatively prescribed rules of everyday s o c i a l interaction, a d i s t i n c t i o n made by Goffman i s he l p f u l . Regarding the attributes of "situated a c t i v i t y " , he makes the d i s t i n c t i o n between "merely situated a c t i v i t y " , " a c t i v i t y which may occur i n situations but not of situations c h a r a c t e r i s t i c a l l y 8 occuring at other times outside situations"* and the 2k.. " s i t u a t i o n a l " aspect of situated a c t i v i t y ; "the parts that could not occur outside situations being i n t r i n s i c a l l y dependent on the conditions that p r e v a i l therein".^ I t i s maintained that i t i s useful to make this d i s t i n c t i o n i n analysing courtroom in t e r a c t i o n . There are c e r t a i n aspects of witnesses demeanor, fo r instance, c e r t a i n reactions he may have to situations i n which he finds himself, which are attributable to the fact that he i s i n court. For example, a person Wiiose personal l i f e i s inquired into may be surprised and possibly shocked that "personal questions" are asked of him by a lawyer but he may "also bo a f r a i d that c e r t a i n aspects of his personal l i f e may be revealed which w i l l materially e f f e c t the case. This i s l i k e l y to have consequences fo r his demeanor. The s i t u a t i o n a l aspects of utterances w i l l be pointed out in the analysis. Examples w i l l be arranged within the framework of a discussion of the relevance of the p r i n c i p l e s of trust and avoidance to courtroom in t e r a c t i o n . The propositions themselves are drawn 2 5 , from Goffman's Face work and Deference and Demeanor; THE PRINCIPLE OF TRUST Goffman maintains that an interactant's l i n e during s o c i a l encounters i s not inquired into. It i s accepted on trust,"a state where everyone temporarily accepts everyone else's l i n e i s established""^. An interactant i s accepted as a bone fide participant on the basis of his v i s i b l e a t t r i b u t e s . Furthermore, "oh the basis of a few known attributes he i s given the r e s p o n s i b i l i t y of possessing a vast number of others" The p r i n c i p l e of trust as put forward by Goffman i s e x p l i c i t l y and deliberately- v i o l a t e d i n the courtroom, i n regard to witnesses' l i n e s . For example, a defendant pleading not g u i l t y i s expected by the court to put forward an explanation and argument, possibly to bring witnesses; i n short, to present a case i n order to back up his plea; A witness for either side i n a t r i a l i s l i k e l y to be subjected to an intense examination and cross-examination and his c r e d i b i l i t y 26, i s judged, by professional participants partly on his reactions to this experience; For instance, i f a witness' evidence i s contradictory or he seems confused during cross-examination, this may a f f e c t his c r e d i b i l i t y for the court. A credible witness' verbal l i n e w i l l be consistent with the demeanor of a t r u t h f u l man which he i s tryin g to present to the court. Since the witness' l i n e i s not accepted on trust, he must make positive e f f o r t s to make his demeanor acceptable to the court. Chapter IV i s concerned with the e f f o r t s made by witnesses and th e i r lawyers on th e i r behalf, to present themselves as "properly demeaned" and put forward an acceptable verbal l i n e i n the absence of his p r i n c i p l e of t r u s t . This Chapter, Chapter I I , i s concerned with e x p l i c i t v i o l a t i o n s of the p r i n c i p l e of trust during cross-examination, with p a r t i c u l a r emphasis on witnesses reactions to these v i o l a t i o n s ; Cross-examination i s the i n s t i t u t i o n a l i z e d means whereby lawyers "test" the verbal l i n e of 27. w i t n e s s e s . T h i s t e s t i n g sometimes amounts to or may be interpreted, by the witness as a h o s t i l e p e r s o n a l a t t a c k and has consequences f o r demeanor. I t became apparent d u r i n g the period, of o b s e r v a t i o n t h a t lawyers have a f a i r l y c o n s i s t e n t r e p e t o i r e of methods whereby they a t t a c k the witnesses demeanor, v i a h i s c r e d i b i l i t y . I t may be inferred, t h a t I f a witness f e e l s h i s c r e d i b i l i t y i s b e ing questioned, he w i l l experience some l a c k of judgmental support. Witnesses d u r i n g cross-examination f r e q u e n t l y e x h i b i t the c l a s s i c r e a c t i o n s to f e l t l a c k of judgmental support as outlined, by Goffman and quoted above. The examples taken from cross-examination w i l l show some of the methods used by lawyers to t e s t the witnesses demeanor i n terms of h i s c r e d i b i l i t y , r e a c t i o n s to these method.s and steps taken by witnesses to meet these t h r e a t s to demeanor. Example 1 i s taken from the cross-examination of a passenger i n a car which was i n v o l v e d i n an a c c i d e n t . I t shows the r e f u s a l of the defence lawyer to accept what the crown witness says "on t r u s t " . By repeated detailed questions he was able to throw doubt on her evidence by r a i s i n g the inference that she was not aware of a l l that was going on at the time; The analysis on the right hand side of the page should show how th i s inference was created. The witness, from her reactions; apparently experienced lack of judgmental support during cross-examination. The lawyers questions show that he was concerned with the "ingred-ients of the charge". His c l i e n t was charged with, " f a i l i n g to y i e l d the right of way" so that an important question i s who has the right of way. It seems that lay interactants are not always aware of these aspects of the case and sometimes misinterpret the lawyer's concern. In this cross-examination, however, the witness became aware of the importance of her evidence about where the other car was at the time of the impact. EXAMPLE 1 DEFENCE LAWYER: Now, as you "entering the i n t e r -were entering the intersection section" shows that 29.. were you arid the driver of your car having a conversation? WITNESS: I was speaking to her at the time "but she was paying attention to her driving; the lawyer was concerned with the issue of "prior entry" which was an important aspect of the case. The witness inferred that the lawyer was implying that the driver would have been distracted from her driving i f she was involved i n a conversation. She admitted that she and the driver were having a conversation but agreed with the lawyer i n terms most advantageous for the driver. That i s , "I was speaking to her". She also attempted to f o r e s t a l l any imputation of the driver's concentration by adding that she was paying attention to her d r i v i n g . The witness 30.. gave the impression of be i n g overanxious to defend the d r i v e r ; r a i s i n g the i n f e r e n c e that she was b i a s e d . DEFENCE LAWYER: Well, The Lawyer r e f o c u s e d the what were you paying i n t e r a c t i o n on what the a t t e n t i o n to while you witness was doing, were t a l k i n g to her. Were you l o o k i n g a t her then? WITNESS: I cou l d n ' t The witness t r i e d to s i d e s t e p say. the q u e s t i o n by g i v i n g a vague answer. DEFENCE LAWYER: Well f o r The lawyer's q u e s t i o n i m p l i e d you to know that she t h a t he c o u l d not accept the was paying a t t e n t i o n to w i t n e s s 1 statement t h a t the her d r i v i n g you have to d r i v e r was paying a t t e n t i o n be l o o k i n g a t her face without knowing how the witness while ycu were t a l k i n g knew t h i s , to her, wouldn't you? 31.. WITNESS: Well I would say so but I Was also tr y i n g to get my seat bel t done up too, so * er, as f a r as being p a r t i c u l a r , I couldn't. The witness admitted that she was doing other things besides talking to the driver, i n an attempt to excuse her i n a b i l i t y to be p a r t i c u l a r . The defence lawyer continued to question the witness about where the driver was looking at the time of the impact. WITNESS: Well she wasn't looking at me, she wasn't looking at me, I know that. The witness was fl u s t e r e d by the lawyer's insistence. She sounded surprised and upset that her evidence should be subjected to such intense examination. She showed the fact that she was upset by repeating herself. Her tone of voice showed that she thought the lawyer was being unreasonable, i n demanding more accuracy.-32. DEFENCE LAWYER: Well, I suggest that the only reason you know that; i s i f you were paying attention to where she was looking. The lawyer t r i e d to i n s i s t that the witness t e l l where she herself was looking. He apparently was t r y i n g to raise the inference that i f she were paying attention to the driver she could not have seen other car. WITNESS: Well, t h i s I know, she was looking ahead. The witness seened to be aware of the inference the lawyer was try i n g to r a i s e . She t r i e d to state blankly that she was looking ahead without being more s p e c i f i c . Her tone of voice was i n s i s t e n t with more emphasis than might be used i n everyday in t e r a c t i o n . She apparently was experiencing lack of judgmental support and answered the lawyer with h o s t i l i t y , 33-The lawyer was appararently more interested i n the issue of p r i o r entry than whether the driver of the car was concentrating on her d r i v i n g . The witness again reiterated the two points which she saw as the important parts of her evidence; she saw the car and the driver was looking ahead. She was unable or unwilling to be more s p e c i f i c , She could not provide the evidence f o r which the lawyer was asking to support her assertion. By repeated questions and insistence that the witness be s p e c i f i c the lawyer reduced this part of the witness' evidence to two blank assertions. He t r i e d to imply that these assertions were not s u f f i c i e n t for the DEFENCE LAV/YER: And you say that because you were looking at her face, weren't you? WITNESS: Well, I said, I can't be exact now, I know that I saw the car and I know she was looking ahead but i f i t needs to be p a r t i c u l a r l y exact I can't right now. 3^. court to i n f e r that the witness knew what she was ta l k i n g about. Whether or not the court accepted her evidence or thought i t reasonable that she should simply "know11 these things i s not relevent here. What is relevent, i s that the example shows an instance of v i o l a t i o n of the p r i n c i p l e of trust which normally holds i n s o c i a l interaction, by a professional courtroom actor, and how this created problems, for a witness which had consequences for her demeanor as a witness who knew what she was talking about. Example 2 shows another t y p i c a l v i o l a t i o n of the p r i n c i p l e of trust which occurs i n cross-examination. The Tfitness was for the defence; a by-stander at the scene of an accident. The prosecutor t r i e d to make the witness be more accurate and s p e c i f i c i n his account of the events he said he saw. His l i n e was subject to detailed examination. The example points to the d i f f e r e n t standards of certainty entertained by lay and professional actors i n the courtroom s i t u a t i o n . EXAliPLg 2 35. The witness was g i v i n g evidence as to what the d r i v e r of the c a r s a i d a f t e r the a c c i d e n t . PROSECUTOR: S i r , d i d you a t any time be f o r e the c o l l i s i o n see the c a r tha.t was t r a v e l l i n g north? WITNESS: No, I d i d n ' t . PROSECUTOR: You d i d n ' t The i n f e r e n c e was t h a t , i f see the c a r , t h a t were the case, the witness c o u l d not have known very much about t h e _ a c c i d e n t . WITNESS: No. The witness' agreement e s t a b l i s h e d the p o i n t that he had not seen the c a r before the a c c i d e n t , more c e r t a i n l y i n the mind of the c o u r t . 36. PROSECUTOR: I see, and she said she just glanced away. The Prosecutor's tone of voice for : |I see" implied that the fact that the witness did not see the car was a serious admission. He quoted the witness' previous statement, apparently, to show that the statement was vague and subject to several interpretations. This was highlighted by the use of the pronoun "she". WITNESS: Yes. PROSECUTOR: And how do you know that i t was the driver of the car that said that? The implication was that the court needed more evidence than the inference made by the i\ritness at the scene of the accident, since he had not actually seen the g i r l d r i v i n g the car. 37 WITNESS: The re was r e a l l y no r e a s o n t o doubt i t because the p a s s e n g e r was s t i l l t h e r e and the d r i v e r o f the c a r i d e n t i f i e d h e r s e l f t o ne as the owner , PROSECUTOR: As the owner . The w i t n e s s made the m i s t a k e o f showing t h a t he assumed the owner t o be the d r i v e r . He i m p l i e d t h a t i t was p o s s i b t o make the i n f e r e n c e , g i v e n the s i t u a t i o n . P r e s u m a b l y he meant t h a t the p a s s e n g e r was s t i l l i n the p a s s e n g e r s e a t b u t he n e g l e c t e d t o p o i n t t h i s ou t s p e c i f i c a l l y . The p r o s e c u t o r p i c k e d up the i n f e r e n c e and emphas ied i t f o r the c o u r t . He i m p l i e d t h a t a l t h o u g h i t m i g h t have been " o b v i o u s " t o the w i t n e s s t h a t t he owner was a l s o the d r i v e r o f the ca.r, he had no t r u l y ob . j e c t i v e e v i d e n c e on w h i c h t o base h i s a s s u m p t i o n . 38. WITNESS: She had just purchased the car recently a.nd she was deploring the fact that i t had to ... The witness t r a i l e d o f f . These observations did not estab l i s h the fact that the owner of the car was driving i t at the time of the accident, The witness apparently r e a l i z e d t h i s a f t e r he had started to give these d e t a i l s about what she said. PROSECUTOR: I see and were you able to say anything else about what she mentioned when she said she just glanced away. Did she expand that i n any way? The prosecutor l e t the inference rest that the witness did i n fact not know she was the driver of the car. He further implied that the mere statement "she just glanced away" was not s u f f i c i e n t f or the court. WITNESS: Actually she was just sort of i n a The witness t r a i l e d o ff having t r i e d to draw on c ommon c u11ura1 understandings. 39; PROSECUTOR: She just na&e that broad statement. of nor people behave when they have been Ih an accident. Prosecutor again implied that the broad statement was not detailed enough f o r the court. WITNESS: She just, er, I The witness t r a i l e d o f f . He didn't question her or anything I just went up to ... PROSECUTOR: Yes? was apparently puzzled and upset by the Prosecutor's attempts to make him look vague. The witness apparently r e a l i z e d how vague he sounded and t h i s was not going to help his argument. The Prosecutor implied that nothing the witness could say would make very much difference to the fact that he did not know very much 4o. about the accident. WITNESS: (cont inued) The witness took refuge i n I just went to look to the plea that he was an see i f anybody got hurt. innocent by-stander. The implication of t h i s observation was "Why am I subjected to this when I was only try i n g to help il PROSECUTOR: I see. No further questions. The example shows how the imposition of c l a r i t y and s p e c i f i c i t y may attack the c r e d i b i l i t y of a witness. The witness made inferences t y p i c a l of those made i n everyday int e r a c t i o n but these were not acceptable to the Prosecutor. The witness interpreted the fact that his l i n e was not accepted on trust as a instance of lack of judgmental support. He was puzzled and upset by the Prosecutor's attempts to make him look vague. i n . Example 3 i s another example of a witness' l i n e being thoroughly tested during cross*-examination. In this case the witness was a man charged with impaired d r i v i n g . Unlike the two previous examples which showed c h i e f l y ttfitnesses reactions to requests f o r more s p e c i f i c i t y and c l a r i t y . The accused's reactions i n example 3 seems to be bound up with the fact that he could not remember what happened on the night he was arrested. Thus he used phrases commonly used i n everyday s o c i a l situations, not simply because these are the ones he was used to but also to cover up his i n a b i l i t y to remember. Ris reactions showed a considerable confusion and concern, and are doubtless related to the possibly damaging facts of the case. That i s , i f his memory about the night he was arrested was poor the court might make the inference that he was impaired. This i s the s i t u a t i o n a l aspect to this excerpt of i n t e r a c t i o n . This example i s also of interest because the prosecutor asked questions of the accused i n a hos t i l e kz. tone of v o i c e , a p p a r e n t l y conveying c o n s i d e r a b l e l a c k of judgmental support EXAMPLE 3 PROSECUTOR: In r e l a t i o n to the p h y s i c a l t e s t t h a t were performed when d i d you s i g n these p i e c e s of paper? T h i s i s an e x t e n s i o n of the pro s e c u t o r ' s p r e v i o u s q u e s t i o n s about the sequence of events on the n i g h t the accused was a r r e s t e d i n c l u d i n g request f o r the exact time a t which c e r t a i n events o c c u r r e d . The accused had used i n e x a c t answers to the pr o s e c u t o r ' s questions and seemed to be unsure as to the d e t a i l e d answers the p r o s e c u t o r expected him to give .• ACCUSED: I t was q u i t e a The p r o s e c u t o r had a l r e a d y while a f t e r . I n d i c a t e d to the accused that the exact time of events 43. MAGISTRATE: Quite a while a f t e r the physical? ACCUSED: It was i n between the physical and the, er, impairment of, er,' the b r e a t h i l i z e r t e s t . PROSECUTOR: I refer you to Exhibit 2 Mr. 3. Do you recognize that document? i n question was es s e n t i a l . At this point i n the cross-examination i t looked as i f the accused was taking refuge i n the kinds of loose talk used i n everyday interaction in order to cover up the fact that the night of his arrest was not clear in his mind. The magistrate indicated that this reply was too vague. The accused t r i e d to be more s p e c i f i c he seemed hesitant and upset (shown by stammering) over this p a r t i c u l a r request. He gave the appearance of not being sure. The prosecutor asked the question i n an accusatory tone of voice, communicating lack of judgmental support. 44. ACCUSED: Yes, s i r . PROSECUTOR: What i f I said, to you that you signed, these documents at about 10:15 i n the morning of the same day? What would you say to that Mr. 3.? The witness was confronted, d i r e c t l y with a piece of paper that he had signed. The confrontation was made s p e c i f i c by the prosecutor, He asked, this question i n a hostile tone of voice and confronted, the witness with the fact that he knew the exact time .at which the document was signed and this proved, that the witness' previous answers were wrong, and created the inference that he was i n fact impaired, at that time. ACCUSED: 10:15? The accused, r e a l i z e d the enormity of his po s i t i o n . He t r i e d to s t a l l f or time by V 5 . PROSECUTOR:: ;(pause) ... Inng a f t e r you were charged! ACCUSED: I ... how long are you ... er ... you have me there because I wouldn't be able to t e l l . simply repeating part of the evidence with which he had been confronted. The prosecutor's voice was contemptuous. He immediately turned away from the accused, creating the impression that he no longer considered the accused worthy of attention since his c r e d i b i l i t y as a r e l i a b l e witness had been thoroughly shaken. The accused was confused and upset and momentarily incapacitated by the prosecutor's confrontation. He stammered and s t a l l e d before attempting to produce an excuse that he would not be able to t e l l the time. 46. The accused's reactions i n this example were, I suggest, related to a number of factors. F i r s t , his unease and confusion at being asked to be absolutely s p e c i f i c about time (more s p e c i f i c that an actor i n everyday int e r a c t i o n i s expected to be). Secondly, he was concerned to cover up the fact that he did remember very l i t t l e about the night of his arrest. The dismantling of his demeanor as a r e l i a b l e witness was accomplished by ho s t i l e expressions on the part of the prosecutor, repeated implications that the witness did not know what he was talking about, and eventually a confrontation of the witness with a piece of physical evidence which showed that his memory was quite f a u l t y . The f i r s t three examples of t h i s chapter have been concerned to show that witness' verbal l i n e s are not accepted on trust i n the courtroom. Witness' reactions are related to t h e i r unease at the infractions of rules of everyday interaction, and s i t u a t i o n a l concerns r e l a t i n g to t h e i r appearance i n court. The next section deals with v i o l a t i o n s of the p r i n c i p a l s of avoidance and includes further 47. examples of the effects of s i t u a t i o n a l concerns on the demeanor of witnesses. THE PRINCIPAL OF AVOIDANCE Goffman defined avoidance r i t u a l s as "those forms of deference which lead the actor to keep at a distance from the recipient and not v i o l a t e what Sinnol has c a l l e d "the ide a l sphere" that l i e s around the 13 rec i p i e n t " J The r i t u a l s involve both physical and verbal avoidance. As part of verbal avoidance he proposes that " i n our society rules regarding keeping ones distance are multudinuous and strong.-^ References or questions about aspects of personal l i f e are c a r e f u l l y avoided. This proposition i s p a r t i c u l a r l y subject to i n f r a c t i o n i n the courtroom. Inquiries into persnnal l i f e are frequently made i f they are to be considered relevent to the purpose of the court. The lawyer on the witnesses own side may inquire into his personal l i f e to provide some explanation f o r his appearance i n 48. court. Such an inquiry may be undertaken by a lawyer as part of his strategy i n establishing a c e r t a i n demeanor for the defendant. To create the inference, for instance, that considering his personal l i f e , he i s not the kind of person l i k e l y to have done such a thing or that having been judged g u i l t y there were extenuating circumstances which might persuade the judge to impose a l i g h t e r sentence than he otherwise might have done. The opposing side may make inqu i r i e s into.-.a witness' personal l i f e i n order to show that he i s not the kind of person l i k e l y to t e l l the truth. These inq u i r i e s are l i k e l y to- have consequences fo r demeanor (especially i f the witness sees what the lawyer i s about). Goffman has delineated more s p e c i f i c a l l y matters which participants avoid i n keeping verbal distance i n the following proposition "an important focus of d e f e r e n t i a l avoidance consists i n the verbal care that actors are obliged to exercise so as not to bring i n to discussion matters that might be p a i n f u l , embarrassing, or humilitating to the r e c i p i e n t . " 49. These matters may be aspects of personal l i f e which have these a t t r i b u t e s or p a i n f u l s i t u a t i o n s i n which the r e c i p i e n t was i n v o l v e d . Embarrassment may have to be faced i n court and matters are o f t e n discussed which may be p a i n f u l or h u m i l i t a t i n g to the witness. Again, as pointed out under the general p r o p o s i t i o n , such matters may be discussed by e i t h e r the witness' own side or the opposing s i d e . Two of the three examples, i n t h i s s e c t i o n , however, are taken from cross-examinations so that i t may be seen how such matters are used by cross-examining lawyers to throw doubt on the witness' evidence. In cross-examination the witness' embarrassment may be the s i g n a l f o r extensive probes by the lawyer since he may conclude that the witness i s t r y i n g to hide something. In some instances witness' embarrassment may be the r e s u l t of a f e a r that damaging f a c t s w i l l be d i s c l o s e d which w i l l e f f e c t the case. These a d d i t i o n a l s i t u a t i o n a l aspects of the d i s c u s s i o n of p a i n f u l embarrassing or h u m i l i t a t i n g matters w i l l be considered i n the a n a l y s i s . 50. Example k- i s an excerpt from a c r o s s -examination d u r i n g which a matter a p p a r e n t l y p a i n f u l , embarrassing and h u m i l i t a t i n g f o r the witness was d i s c u s s e d . The witness, the complainant i n a case of a s s a u l t , was questioned about whether or not he was m e n t a l ^ i l l . The Defence Counsel a p p a r e n t l y sought to e s t a b l i s h t h a t the complainant was an unstable person l i k e l y to p i c k a f i g h t which would throw doubt on the charge of a s s a u l t brought a g a i n s t h i s man. The witness' r e a c t i o n s to these q u e s t i o n s aboiit p e r s o n a l matters may be seen as showing embarrassment and h u m i l i t a t i o n t o g e t h e r w i t h c o n s i d e r a b l e unease t h a t these matters should be brought out i n c o u r t . The witness a p p a r e n t l y saw these i n q u i r i e s as a t h r e a t to h i s demeanor as a wronged man, the v i c t i m of an unprovoked a s s a u l t . EXAMPLE 4 DEFENCE LAWYER: ( f o l l o w i n g a s e r i e s of loud a g g r e s s i v e and a p p a r e n t l y h o s t i l e q u e s t i o n s about In a s k i n g whether the complainant was an o u t - p a t i e n t of a mental h o s p i t a l the lawyer asked a p e r s o n a l 5 1 . the a s s a u l t ) . Now, i s i t t r u e t h a t you are an o u t - p a t i e n t of the Crease C l i n i c ? q u e s t i o n of the k i n d normally avoided i n everyday i n t e r a c t i o n , I t can be i n f e r e d t h a t such a qu e s t i o n would cause the witness p a i n and embarrassment, whether or not i t was t r u e , t h a t he was a mental p a t i e n t or had been. I f the lawyer co u l d e s t a b l i s h t h a t the complainant was s t i l l an out-p a t i e n t then the cou r t might draw the i n f e r e n c e that he was unstable and p o s s i b l y mental i l l . WITNESS: (paused and muttered). What do you mean, Crease C l i n i c ? The witness a p p a r e n t l y saw t h i s q u e s t i o n as a t h r e a t to h i s demeanor. He t r i e d to imply t h a t he d i d not know what the. defence counsel was t a l k i n g about. He i n t e r p r e t e d t h i s r e f e r e n c e to h i s 52. DEFENCE LAWYER: Have you ever been to Crease C l i n i c ? WITNESS: (paused, looked, o b s t i n a t e and. stony) . When? LAWYER: Have you ever been there? WITNESS: I have been there f o r d i f f e r e n t , I have been there eleven years ago, not now. pe r s o n a l l i f e as s i t u a t i o n a l l y embarrassing. The lawyer d i d not accept the i m p l i c a t i o n t h a t the witness d i d not know what the lawyer was t a l k i n g about. The witness was t e m p o r a r i l y i n c a p a c i t a t e d he t r i e d a g a i n to a v o i d the lawyer's q u e s t i o n by a s k i n g him a question« The lawyer simply repeated the q u e s t i o n . He gave the witness no chance to a v o i d p r o v i d i n g embarrassing d e t a i l s of h i s p e r s o n a l l i f e . Witness sounded angry and upset he i m p l i e d t h a t although he had been a p a t i e n t i n the mental h o s p i t a l h i s 53. i l l n e s s was no longer r e l e v e n t and e s p e c i a l l y not to t h i s case, He s t a r t e d to say th a t he had been there ( i , e . the c l i n i c ) a t d i f f e r e n t times but ended by emphasing the f a c t t h a t he was there a number of years p r e v i o u s l y . DEFENCE COUNSEL: Wel l The lawyer t r i e d to counter i s i t not true t h a t you the f a c t t h a t the witness was have had a mental a p a t i e n t 11 years p r e v i o u s l y d i s o r d e r . by implying that a mental d i s o r d e r may .be permanent. That i s , i t i s probably s t i l l r e l e v e n t . WITNESS! I asked the The witness denied the d o c t o r and he s a i d i n f e r e n c e r a i s e d by the "NO there n o t h i n g wrong lawyer, w i t h you. DEFENCE COUNSEL: So 11 The lawyer ignored the years ago you were i n w i t n e s s : d e n i a l . He 54. Crease C l i n i c , r e i t e r a t e d the witness' admission that he had been a p a t i e n t so that i t was e s t a b l i s h e d i n the minds of the court. The witness i n Example 4 t r i e d t oblock the lawyer's questions about a p a i n f u l episode i n h i s l i f e . He was apparently aware of the s i t u a t i o n a l relevence of these questions to the..case, and h i s anger and h u m i l i t a t i o n was compounded by these concerns. Example 5 i s an e x t r a c t from the c r o s s -examination of the wife of the complainant i n Example 4 . This example i s i n t e r e s t i n g from the point of view of the v a r i e d techniques used by the lawyer i n c r o s s -examination. Aspects of the witness' personal l i f e were i n q u i r e d i n t o and matters were discussed which were p a i n f u l , embarrassing and h u m i l i t a t i n g to her, but at the sane time the defence counsel used techniques such as changing the t o p i c of examination a b r u b t l y and asking questions i n a loud and h o s t i l e tone of v o i c e , to i n q u i r e i n t o the witness' testimony. During the course of the cross-examination the witness mad.e an admission which was damaging to the crown's case (she was a Crown witness). The example i s fiven however c h i e f l y to show the effects of the v i o l a t i o n of p r i n c i p l e s of avoidance on the demeanor of the witness. The lawyer was asking the witness what she knew of the accused DEFENCE COUMSEL: (using a gentle tone of voice). Well,has he always been v. gentleman to you? WITNESS: I never talked to him.o LAWYER: You never talked with hinv The lawyer's tone of voice indicated that he d.oubted whether t h i s could, be true, WITNESS: No. LAWYE1 xou never talked to him on Robson? The lawyer spoke rapidly, raised his voice so that his 56, WITNESS: No, I didn't, LAWYER: (ignoring the r e t o r t ) . T e l l i n g him you are cn the brink of question sounded l i k e an accusation; The answer had a quality of retort* Shows that the witness was angry at the accusation, suicide: WITNESS: No. The witness' tone of voice conveyed that she was upset and humilitated. LAWYER: That you were a f r a i d of your husband?. WITNESS: No. The questions and answers followed one another, i n rapid succession* the entire interaction had speeded up-. Apparent anger on the part 57. of tho lawyer was met by apparent anger and puzzlement on the part of the witness. The witness' puzzlement implied that these accusations and suggestions c e r t a i n l y did not f i t the fa c t s . LAWYER* You didn't say that he blamed you f o r his son's blindness? WITNESS: Who s i r ? The witness sounded shocked and angry at t h i s reference to her son's handicap; LAWYER: Did you t e l l Mr. W, this? WITNESS: No. LAWYER: Did you % e l l h i n you wuuld knock on the c e i l i n g i f you needed help? 58. WITNESS i I d id not The witness' r e p l y was emphasied, i n d i c a t i n g anger and shock. Her answers communicated a sense of out-rage presumably t h a t these a c c u s a t i o n s should be made a t a l l , a l s o t h a t they should be made i n court s i n c e they were r e l e v e n t to the k i n d of man her husband was. T h i s as mentioned i n Example 4 was very r e l e v e n t to the case, s i n c e an uns t a b l e and unreasonable nan would be more l i k e l y to provoke an a s s a u l t o LAWYER: Has your husband got mental i l l n e s s ? The lawyer suddenly changed t o p i c . Such a change of t o p i c i s unusual i n every-day i n t e r a c t i o n when e f f o r t s are u s u a l l y made to show 59. that the new topic i s appropos the previous one to provide sone kind of a bridge passage, so that the change w i l l not seen abrupt, e;g. by the way, in c i d e n t a l l y , and so f o r t h . The witness seemed to be thrown off balance by the abrupt change of topic. - L D WITNESS: Yes The witness was apparently thrown off balance by the abrupt change of topic so that she made no attempt to soften the fact that her husband had mental i l l n e s s . LAWYER: When was he i n Crease C l i n i c last? The lawyer made the assumption that her husband was i n Crease C l i n i c , He gave the impression that he already knew something about the alleged mental i l l n e s s . 6 o . WITNESS: 10 years ago. The witness spoke very s o f t l y her tone was emotional, Having nade the witness angry i n the previous section of examination, the lawyer upset her by r e f e r r i n g to her husband's mental i l l n e s s . LAWYER: Now, i s he an As i n the previous section outpatient at the moment, the lawyefspace of questioning being treated? was very f a s t . His tone was loud and somewhat bul l y i n g , WITNESS No, s i r . The witness kept her answers short. She seemed intent on not revealing more than she had to. LAWYER: Well were you staying i n Suite No. 2 were you l i v i n g there? This i s yet another abrupt change of topic, WITNESS: No, I was babysitting -This gave a reasonable explanation for '.her presence 61. i n Suite No. 2. She denied the lawyer's inferences she was l i v i n g apart from her husband. LAWYER: Did you hear your husband y e l l i n g " I ' l l f i x him, I ' l l f i x him, in the h a l l . This i s yet another ohange of topic, without any bridge passage. WITNESS: He wasn't y e l l i n g at him he was y e l l i n g at me. LAWYER: Well, what was he y e l l i n g at you? WITNESS: When anything goes wrong, he y e l l s at me. The witness was apparently confused and upset by the previous part of the cross-examination and thought the lawyer was r e f e r r i n g to her everyday relationship with her husband, whereas 62. he was i n fact r e f e r r i n g to the night when the. alleged assault took place; The witness had apparently made the admission that her husband was an unpredictable angry man i n that he habitually y e l l e d when things went wrong. This apparently was the kind of admission* for which the lawyer had hoped when re f e r r i n g to the husband's mental i l l n e s s previously. LAWYER: (moderating his The lawyer immediately tons and speaking picked up the inference, gently). I see- Well softened his tone and spoke are you a f r a i d of this gently, apparently hoping to yell i n g ? draw the witness out. WITNESS: Well, I had Dr; G; examine him and he 63. said, he i s not a dangerous nan. LAWYER: And you had no fear of him? WITNESS: Nd s i r ; LAWYER: You had no fear The lawyer repeated the of your husband? question to emphasise the point of her denial to the court i WITNESS: Dr. G. said he is not a dangerous man. The witness simply repeated her assertion, the inference being that since he was not a dangerous man there was no reason to be a f r a i d of him. At this point the witness' tone was somewhat desparate. LAWYER: Well why did you ask Dr; G: i f he was a dahgeirous man i f This was said i n an accusatory tone of voice as i f the lawyer f e l t his 64. you weren't a f r a i d ? p o i n t had "been proved. The example shows how the demeanor of the witness was a f f e c t e d by reference to p a i n f u l , embarrassing and h u m i l i t a t i n g matters, The lawyer apparently hoped to show that the complainant was unstable by i n q u i r i n g i n t o h i s a l l e g e d mental i l l n e s s . The lawyer's other techniques of examination, h i s accusations that the wife was a f r a i d , h i s h o s t i l e tone of v o i c e , h i s abrupt change of t o p i c and h i s f a s t pace of asking questions, seemed to add to her confusion and p e r p l e x i t y . The witness was extrenely upset by the i n q u i r i e s i n t o the personal matters and made a f o r t u i t o u s ( f o r the defence counsel) admission that her husband always y e l l e d at her when things went wrong. From t h i s the lawyer i n f e r r e d that she must be a f r a i d of her husband- While h i s d i r e c t l i n e of i n q u i r y about her husband's mental i l l n e s s was blocked by the witness he was able to make the point about her r e l a t i o n s h i p w i t h her husband f o l l o w i n g her damaging (to the Crown's case) admission; The witness i n t h i s instance seemed to be aware of the s i t u a t i o n a l relevence of her 65-r e l a t i o n s h i p with her husband. In Chapter 2 I have set otit to show t h a t the p r i n c i p l e s of t r u s t and avoidance which normally o b t a i n on s o c i a l i n t e r a c t i o n are s u b j e c t to i n f r a c ' t i o n i n the courtroom, I t was p o i n t e d out t h a t these i n f r a c t i o n s occur as p a r t of the j u d i c i a l process and are a p p a r e n t l y i n s t i t u t i o n a l i z e d as p a r t of common understandings of courtroom i n t e r a c t a n t s . I t should be noted, however, t h a t although they may be p a r t of the background expectancies of the p r o f e s s i o n a l courtroom a c t o r , l a y witnesses may not be so prepared* The a n a l y s i s of the examples presented i n t h i s chapter show t h a t the r e a c t i o n s of the witnesses to these v i o l a t i o n s . I a l s o t r i e d to show the i n f l u e n c e of the s i t u a t i o n a l aspect of courtroom i n t e r a c t i o n from the demeanor of witnesses. 66. FOOTNOTES: CHAPTER 11 1. Garfinkel, What i s Ethnomethodology, p. 24 2. See Goffman, The Nature of Deference and Demeanor. 3. For the "avoidance process" as one kind of face-work see Goffman, On Face Work p. 15 f . f . For "Avoidance r i t u a l s " as a form of deference see Goffman, Deference and Demeanor p. 62 f . f . 4. The p r i n c i p l e of trust which usually holds i n s o c i a l situations i s inferred from the following quotations from Goffman's Face Workc In s o c i a l situations i n general "a state where everyone temporarily accepts everyone else's l i n e i s established" (p. 17) and "on the basis of a few known attributes he i s given the r e s p o n s i b i l i t y of possessing a vast number of others" (p. 7). 5- Op. c i t • 6. Loc . c i t 7. Loc . c i t 8. Erving Goffman, Behaviour i n Public Places, Free Press, Glencoe, I l l i n o i s , 19631 P « 2 2 . 9. Lpc. c i t . 67.. 10. In Goffman, Interaction R i t u a l . 1 1 . Goffman, Facework, p. 17 . 12. Op. c i t p. 7 13. Goffman, Deference and Demeanor, p. 6 2 . 14. Op. c i t p. 65 15• Loc. c i t 16. Roy Turner, has observed that, "Transitions are needed, apparently, i n order to bring about topic changes and i n our society we seem to have no lack of expressions which do the job of according the other his conversational r i g h t s , while enabling us to exercise our own. I have i n mind such things as "by the way", "that reminds me", "speaking of so and so", etc." "Problems i n the Study of Interaction". Paper read at the P a c i f i c S o c i o l o g i c a l Association Meeting at Vancouver, A p r i l 66 p. 8 . 68. CHAPTE1. ^ ±1 DEMEANOR IN THE COURTROOM Chapter 111 has two major concerns. The f i r s t i s to d e l i n e a t e the a t t r i b u t e s of "acceptable demeanor" of witnesses i n cou r t and the second to show the processes whereby p r o f e s s i o n a l courtroom a c t o r s " c a t e g o r i z e " l a y i n t e r a c t a n t s i n terms of demeanor. Chapter 11 showed t h a t the witnesses' demeanor d u r i n g h i s appearance i n court i s problematic i n t h a t i t i s not p r o t e c t e d by the r u l e s of s o c i a l i n t e r a c t i o n which normally h o l d d u r i n g encounters. Governed by the unique needs of the Court (the i n s t i t u t i o n a l i z e d j u d i c i a l process) the witness' demeanor i n c l u d i n g h i s v e r b a l " l i n e " i s s u b j e c t to a thorough examination. I t i s t e s t e d and t r i e d . I t may undergo cross-examination. I t f o l l o w s that c e r t a i n g e n e r a l p r i n c i p l e s about demeanor accep t a b l e to the Court are capable of i s o l a t i o n . The q u e s t i o n of what i s acceptable to the cour t may be p a r t l y answered by the o b s e r v a t i o n and a n a l y s i s of i n s t a n c e s of unacceptable demeanor i n terms of the c o u r t ' s r e a c t i o n to them and s i m i l a r l y of 69. instances of apparently acceptable demeanor. I t i s proposed that demeanor i n the courtroom i s subject to expectations of s o c i e t y i n general about what i s "proper", together w i t h other expectations s p e c i f i c to the courtroom s e t t i n g . An appearance i n court may be seen as one of the general c l a s s of " f a t e f u l events" to which Goffman r e f e r s . 1 During such events a c t o r s are expected to e x h i b i t c e r t a i n major forms of character that bear on the management of f a t e f u l events. These are a t t r i b u t e s of "moral character" as defined by our s o c i e t y : courage; gameness; i n t e g r i t y ; g a l l a n t r y and composure, which includes s e l f - c o n t r o l and s e l f - p o s s e s s i o n , both p h y s i c a l and emotional.^ The a t t r i b u t e s most r e l e v e n t to an appearance i n court are i n t e g r i t y , with p a r t i c u l a r emphasis on 3 honesty and composure. I t seemed e s s e n t i a l i n the courtroom, that l a y witnesses have the a t t r i b u t e s of composure, s e l f - p o s s e s s i o n and e s p e c i a l l y emotional s e l f - c o n t r o l . 70. Examples w i l l be given of f a i l u r e s to maintain composure which i n c u r r e d the overt d i s a p p r o v a l of the court. This r e a c t i o n was u s u a l l y expressed by the magistrate i n the form of sanctions of the witnesses' behaviour which culminated on occasion i n the p h y s i c a l removal of the witness from the courtroom. Some instances of considerable l a c k of composure were observed, however, which i n c u r r e d no d i r e c t sanctions, f o r i n stance, extreme nervousness. These and t h e i r bearing on the expectations of s o c i e t y i n general that a person who i s the focus of a f a t e f u l event ought to be composed w i l l be examined i n some d e t a i l l a t e r i n the chapter. I t can be seen that the a t t r i b u t e of i n t e g r i t y i s c r u c i a l f o r a witness appearing i n court, e s p e c i a l l y f o r the accused, since i t i s l i k e l y to bear on the d e c i s i o n i n the case. In the t r i a l s observed the magistrate u s u a l l y r e f e r r e d to h i s assessment of the i n t e g r i t y of the accused i n h i s Reasons f o r Judgment. One f u r t h e r important a t t r i b u t e which was expected of witnesses was that of showing respect to 71. the court. Several occasions were observed when witnesses were sanctioned for not showing "proper respect". Showing respect could be subsumed under Goffnan's Attribute of Moral Character, composure, but i t xvi 11 be considered separately here because of i t s central importance. Some estimation of i t s importance can be made from the observation that a lack of respect for the court may be defined as "contempt" and treated as a criminal charge. Examples w i l l be presented of witnesses who neglected to show proper respect and were overtly sanctioned by the court. The three attributes of composure, i n t e g r i t y and showing respect have been treated separately but, i n the event, sanctioned witnesses sometimes lacked composure, f a i l e d to show respect for the court and were judged to lack i n t e g r i t y . Their general demeanor was unacceptable.' I t i s maintained that a considerable variety of behaviour may be subsumed under these somewhat general attributes proposed by Goffman as being part of "moral character". The examples w i l l be examined i n some d e t a i l i n terms of the infractions of these three main prescriptions of moral character 72. and i n terns of general demeanor. The analysis i s intended to show what constitutes lack of respect, loss of composure, etc. i n the courtroom. In contrast, examples w i l l be presented of apparently acceptable demeanor, t h e i r acceptability inferred from the reactions of the court. This course w i l l furnish some sp e c i f i c examples of witnesses engaged i n the management of a p a r t i c u l a r type of the general class of " f a t e f u l events" together with examples of witnesses who f a i l e d i n t h e i r attempted management. The assessment of demeanor i n terms of these att r i b u t e s of moral character seems to be an important part of the "categorization" of witnesses by professional actors. The analysis of responses to witnesses, by other courtroom participants, should help to make th i s process clear. Garfinkel has referred to the process of categorization as part of the "taken for granted" aspect of common understanding shared by the members of a p a r t i c u l a r setting. The a b i l i t y to categorize is, learned during s o c i a l i z a t i o n into the setting. He 73 = points out:-"With respect to the problematic character of p r a c t i c a l actions and to the p r a c t i c a l adequacy of t h e i r i n q u i r i e s , members take for granted that a member must at the outset 'know' the setting i n which he i s to operate i f his practices are to serve as measures to bring p a r t i c u l a r locative features of these settings to recognizable account". Categorization i n the courtroom takes various forms. An accused must be categorized as g u i l t y or not g u i l t y . A witness nay be categorized as confused, l y i n g , and so on. Witnesses may be judged f i t or u n f i t court-room interactants. Categorization by the court i s usually expressed by the magistrate who acts as a decision maker. He may refuse to hear a witness who has been categorized as an u n f i t interactant and from the i n t e r a c t i o n i t may be clear that the process of categorization has involved some assessment of the witnesses deneanor. Other nenbers of the courtroon setting categorize witnesses. For example, during the adjournment of the t r i a l of a man charged with breaking 74. and e n t e r i n g , i n d i s c u s s i n g the accused's evidence, some policemen and court o f f i c i a l s described him as a "smoothie" and obviously g u i l t y . Although these people had no d i r e c t i n f l u e n c e on the d e c i s i o n of the court, the man was found g u i l t y . I suggest that these members of the courtroom s e t t i n g and s o c i a l i z e d i n t o the s e t t i n g share common understandings w i t h the magistrate about the c a t e g o r i z a t i o n of l a y i n t e r a c t a n t s . Examples w i l l be presented together w i t h a) an a n a l y s i s of witness demeanor i n terms of the releven t a t t r i b u t e s of moral character and b) an a n a l y s i s of the process of c a t e g o r i z a t i o n of witnesses by p r o f e s s i o n a l i n t e r a c t a n t s . The f i r s t set of examples includes part of the appearance of two witnesses who f a i l e d completely i n t h e i r management of the f a t e f u l event i n which they were in v o l v e d , i n that they "were cate g o r i z e d as u n f i t i n t e r a c t a n t s , and removed from the courtroom. I t i s proposed that one of the c r i t e r i a by which p r o f e s s i o n a l i n t e r a c t a n t s judge a witness' f i t n e s s to remain i n court i s the degree to which witnesses attend to the "conventions of i n t e r a c t i o n " , 75. both those appropriate to everyday interaction and those s p e c i f i c to the courtroom. By conventions of inter a c t i o n I mean the process whereby interactants provide one of a certain class of utterance which as a part of common understandings i s expected by other interactants at a p a r t i c u l a r point i n the inte r a c t i o n . For example, the expected sequence of question and answer i n the courtroom: as a general rule professional interactants ask the questions and lay interactants supply the answers. At certain points explanations may be cal l e d for, at others excuses may be presented which are seen as relevent by lay interactants but irrelevent by professional actors.5 Thus, " t a l k i n g out of turn" i n court, for instance, a witness asking questions of the magistrate, may be seen as sanctionable behaviour by professional interactants. I t may be construed as showing lack of respect for the court. A further factor i n the categorization of lay interactants i s t h e i r response to sanction by professional actors. Failure to respond i s l i k e l y to provide more evidence that the witness should be removed from the courtroom. 7 6 . The analysis of the examples w i l l also be directed to witnesses attention to those conventions of inte r a c t i o n . EXAMPLE 1 A complainant i n an assault charge was being questioned by the court. There was no lawyer for the defence. The complainant seemed unsteady as she walked into the courtroom. She answered the questions i n a loud and bell i g e r e n t tone of voice. Her speech was slurred„ MAGISTRATE: Are you the complainant i n th i s natter? COMPLAINANT: Yes, I an. PROSECUTOR: I just wonder i f she i s i n any condition to address the court Your Worship. The prosecutor was addressing the Magistrate. He apparently used aspects of the witness' general physical deneanor, her walking unsteadily and 77. MAGISTRATE: (addre s sing the prosecutor) I want to get the information. peering about her, as evidence from which he concluded that she was an u n f i t interactant. The prosecutor wondering about her being " i n any condition" to address the court implied that there was a "proper" condition for a witness appearing i n court. The Magistrate indicated, that he was w i l l i n g at that point to overlook the improper condition to which the prosecutor was re f e r r i n g i n order to get the relevent information on the matter, I t would seem that i n some circumstances witnesses nay be allowed to appear i n an equivocal condition, for instance, when this 78. COMPLAINANT: I wasn't drinking, I'n sorry I do not drink-, I'n just crippled up. Since when do you c a l l a l l crippled people drunk? consideration i s over-riden by the necessity of "getting information". The conplainant stunbled over her words. She interrupted the magistrate when he was tal k i n g to the prosecutor. She talked out of turn since she had not been addressed i n thi s natter. The usual sequence of verbal in t e r a c t i o n i n court i s f o r the lay interactant to speak only when he has been asked a question or "given the floor", The witness' interruption constituted lack of respect for the court. Further, she inferred fron the Prosecutor's remark that he meant she was drunk* She made an inference; which was improper and offered an excuse "I'n just crippled up" before she had been accused, again out of turn, The conventions of everyday interaction preclude the offering of an excuse before i t i s c a l l e d f o r . She further complicated her appearance by demanding why the prosecutor c a l l e d a l l crippled people drunk, an improper question since the layman i s not expected to ask questions of professional actors. The question nay be construed as di s r e s p e c t f u l ; especially since i t was asked i n a loud, demanding tone of voice: The witness showed 80. MAGISTRATE: Well, I'n going to remand, you i n custody u n t i l tomorrow morning ... as a... a f a i l u r e to adapt to the courtroom s i t u a t i o n ; The complainant's disregard for the conventions of interaction was so flagrant that the magistrate decided at th i s juncture; r e l a t i v e l y early i n the witness' appearance, that the complainant was an u n f i t courtroom interactant. Apparently her "condition" as interpreted a f t e r her previous utterance over-rode his concern for getting the information. That the magistrate considered her appearance to be a serious breach of what i s proper i n court may be inferred from the fact that he remanded her i n custody. 81. COMPLAINANT? (breaking The witness again talked out i n ) . I n custody! I of turn. She was being have to get doctor care. addressed by the magistrate but she interrupted hin, showing lack of control and objected to his decision, showing lack of respect. The complainant attempted to provide an adequate excuse " I have to get doctor care" for not being remanded. Medical excuses are c h a r a c t e r i s t i c a l l y "good" excuses i n everyday l i f e . Thay frequently "get you off" . MAGISTRATE" (finishing) As a material witness. COMPLAINANT: I ! 1 1 be here - but I would l i k e to go now. I 82, would l i k e to cancel The complainant t r i e d to that b a i l please, establ i s h herself as a responsible person by t e l l i n g the magistrate that she would be i n court the following day. She t r i e d to ignore the interaction Which had intervened between her f i r s t appearance i n court when she had refused to continue b a i l for the accused. Her referance to wanting to cancel the b a i l may be seen as a reminder to the court that she was the accused's bondwoman, i n order to re-establish herself as a person of power. She made an abortive attempt to exercise that power by try i n g to cancel the b a i l . MAGISTRATE" I'm quite This may be interpreted as sure you w i l l : ma'am'. a dry reference to the fact 83. that, since she would be i n custody, there would be no doubt that the complainant would be i n court the following day. PROSECUTOR; Go x\rith the The accused was led out of policewoman please. the courtroom by a policewoman. The witness i n Example 1 exhibited demeanor t o t a l l y • unacceptable to the court. She was categorized as an un f i t interactant. The example shows the kind of actions which may be construed by the court as lack of respect. Actions such as interrupting the magistrate, addressing the prosecutor when the complainant had not been addressed, offering excuses inappropriately; i n short, disregarding the conventions of courtroom and everyday int e r a c t i o n . The witness lacked physical and emotional s e l f - c o n t r o l i n that she staggered and her tone of voice was loud and b e l l i g e r e n t . Example 11 i s another instance of a witness whose demeanor was unacceptable to the court. The accused i n t h i s case was categorized as an u n f i t 84. ir.teractant, again because she was drunk, although t h i s categorization was not nade u n t i l her second appearance on the sane day, following an adjournnent.. The magistrate's questions give sone ind i c a t i o n of the process of categorization; The witness plunged ahead i n the interaction without waiting for the forn a l procedure of the court to be gone through, thus showing a lack of respect for the court; her nanner i n court was b e l l i g e r e n t , she repeated herself and t r a i l e d off without f i n i s h i n g sentences which was construed as a lack of con.posure. She paid nore attention to the conventions of inte r a c t i o n , however, than the witness i n the previous exanple. I t i s t h i s , I would suggest; which was the chief factor i n the delay i n the court's categorization of her as an u n f i t interactant. EXAMPLE 11 PROSECUTOR: Charge of vagrancy A for t r i a l t h i s norning ..Your Worship. MAGISTRATE: (to witness) Do you want to go ahead now? 85. WITNESS t I»n not g u i l t y because I have got permission.- I've got witnesses here* This 'was a p o i n t i n the i n t e r a c t i o n when a d i r e c t answer to the magistrate's question was c a l l e d f o r ; The magistrate had not asked f o r the defendant's plea,, that i s g u i l t y or not g u i l t y but whether she wanted her case to be heard. The defendant disregarded court procedure* I f she had wanted to go ahead the charge should have been read and her ple a heard. This may be seen as l a c k of respect f o r the court. MAGISTRATE: You've got witnesses i n court? The magistrate accepted the witness' change of subject. He may have had defined her di s r e g a r d f o r procedure as ignorance I 86\ WITNESSJ Yeah, right out, The witness exhibited•lack of o o . , over there (pointing) WITNESS; Yeah, I an not g u i l t y because because furthermore I have permission to <> . . composure i n pointing but gave an appropriate answer to the magistrate's question; The xvitness continued to ignore proper procedure. She showed lack of emotional s e l f - c o n t r o l i n i n s i s t i n g that she was not g u i l t y . Her insistence gave the impression that she thought the court might not recognize her claim. This can be seen as showing lack of respect for the court. Her hurried attempt to give an explanation of why she was not g u i l t y was uncalled for at t h i s juncture. MAGISTRATE: You haven't been drinking t h i s morning have you? The accused's''lack of respect and attempt to give an uncalled for 87. WITNESS: No. '.: haven't S i r . but th i s g i t s ne, MAGISTRATE: You don't look very good now and explanation apparently nade the Magistrate suspect that she had been drinking. The witness gave an appropriate reply to the magistrate's question and offered an excuse for her insistence» This i s , "t h i s g i t s me", implying that i f one i s angry one might be forgiven f or being carried away, In t h i s utterance she paid attention to the conventions of inter a c t i o n . By c a l l i n g the magistrate, S i r , she showed respect f o r the court. The magistrate indicated that there were other factors which I noticed you came into ought to be explained. (There court smoking ;;» were notices displayed outside the courtroom that smoking was not allowed). 88, WITNESS! (started to speal: before the magistrate had finished his sentence), Yeah, because I'm doing everything , ., „ yeah, I r e a l i z e that but I'm too nervous, MAGISTRATE: Why did you do that? WITNESS: Nervous MAGISTRATE: And you say you're not under the influence of alcohol or drugs? The witness provided the excuse for which the magistrate asked by implication. She gave a plausible exalanation considerin the courtroom's s i t u a t i o n , that i s , that she was nervous. Although she interrupted the magistrate,her reply was of the appropriate class. The magistrate disregarded the fact that the witness had interrupted him,by repeating the question. He did not sanction her. The witness repeated her excuse. The magistrate asked again whether she was intoxicated. He asked,in fact, f or a denial of the inference he had apparently drawn from her demeanor. 89-WITNESS: No,Sir. The witness replied to his question with an appropriate answer. The magistrate apparently accepted the witness' explanation that she was nervous and went on to question her about a date upon which she was sentenced previously. The witness could not remember and the case was stood down u n t i l the de t a i l s had been determined by the prosecttor. After the break the witness returned to court. She was staggering and swaying as she stood i n front of the magistrate. MAGISTRATE: Just. Are The magistrate decided at you sure you're a l r i g h t ? t h i s point that the witness Would you mind determining was an u n f i t interactant, whether t h i s g i r l has af t e r a l l . He seemed to be been drinking (to a influenced by the accused's police o f f i c e r ) ? physical demeanor which confirmed the impression he had had of her before, WOMAN POLICE OFFICER: She's The Police O f f i c e r bent down been drinking Your Worship and put her face close to the 90. witness' face.. Apparently to sine 11 the witness' breath. This was an interesting example of the " v i o l a t i o n of personal space" referred to by Goffman (Deference and Demeanor). Apparently, i f a witness i s suspected of being an u n f i t interactant his personal space i n the physical sense becomes v i o l a b l e . MAGISTRATE: Yes, I 'n going to remand your case u n t i l tomorrow. No bail.- I 'm not s a t i s f i e d that you are at a l l capable of handling yourself today i n a case of t h i s nature. Tomorrow the t r i a l o Thank you O f f i c e r . 91. WITNESS: (being l e d out The witness was h u s t l e d out to the c e l l s ) - J u s t a un c e r n o n i o u s l y . Having been minute I c l a s s i f i e d as an u n f i t courtroom i n t e r a c t a n t . Other courtroom a c t o r s were ab l e to ho l d her by the arms and remove her from the courtroom. An i n t e r e s t i n g comparison may be made between t h i s example (Example 11) and the pr e v i o u s one (Example 1) and some r a t h e r s u b t l e d i f f e r e n c e s d i s c e r n e d . Although the second witness e x h i b i t e d some of the same a t t r i b u t e s of demeanor as the f i r s t w i tness, the mag i s t r a t e d i d not f i n a l l y c a t e g o r i z e her as an u n f i t i n t e r a c t a n t u n t i l a f t e r the adjournment. Some d i f f e r e n c e s between the two were t h a t , whereas the second witness was able to recognize an a p p r o p r i a t e p o i n t i n the i n t e r a c t i o n when an excuse c o u l d be presented, the f i r s t o f f e r e d an u n c a l l e d f o r excuse and b e r a t e d the pr o s e c u t o r , showing l a c k of re s p e c t f o r the c o u r t . The f i r s t witness i n t e r r u p t e d the magi s t r a t e and d i s r e g a r d e d the conventions of 92. i n t e r a c t i o n i n the courtroom. Although the second witness d i s r e g a r d e d courtroom procedure t h i s may have been construed as ignorance on her p a r t by the m a g i s t r a t e . She was s t i l l a ble to show some r e s p e c t f o r the c o u r t . The a t t r i b u t e s of the second witness' demeanor which e v e n t u a l l y l e d the m a g istrate to have her removed from the c o u r t seemed to have been her l a c k of p h y s i c a l s e l f - c o n t r o l a f t e r the adjournment, which compounded h i s e a r l i e r o b s e r v a t i o n s t h a t "she d i d n ' t look very good" and she came i n t o court smoking. EXAMPLE 111 T h i s example shows a circumstance under which a witness e x h i b i t i n g some of the same a t t r i b u t e s as the witness c i t e d above, was not questioned about her f i t n e s s to appear i n c o u r t . She was a p p a r e n t l y d e f i n e d as nervous and the d e f i n i t i o n was not e q u i v o c a l . During her appearance the witness had a l i m i t e d command of speech. She appeared s t u p i f i e d . She stammered and a p p a r e n t l y had d i f f i c u l t y remembering the circumstances about which she was t e s t i f y i n g . However, her speech was not s l u r r e d , her tone was not b e l l i g e r e n t and she stuck . 93-tanaciously to the point. Further, she did not stagger when she carae into the courtroom. Thus, she exhibited considerable lack of composure but showed respect for the court throughout her appearance. Her nervousness was apparently inferred by the court since the prosecutor adapted his examining technique (she was a crown witness) so that she was able to give her evidence and be of some use to him. One factor i n the categorization of t h i s witness as being "just nervous", I would suggest, was her attention to the conventions of inte r a c t i o n . This i s shown i n the part of her evidence analysed below. The witness was cal l e d and entered the courtroom i n a very hesitant manner. She was shown into the witness box by the court o f f i c e r and stood peering about her uncertainly, b l i n k i n g her eyes rapidly and clasping her hands t i g h t l y behind her back. The witness was sworn i n and asked her name and address. PROSECUTOR: (very business- The prosecutor spoke very l i k e and e f f i c i e n t ) . hurriedly. I t might be Now dir e c t your attention surmised that the f i r s t 94. part of the utterance was a r e l a t i v e l y unusual turn of phrase for lay interactants, That i s , "now dir e c t your attention s p e c i f i c a l l y " . s p e c i f i c a l l y to between 8 o 1 clock i n the evening of October the 16th and 12:30 i n the morning of October the 17th - what do you r e c a l l i f anything at that time? WITNESS: (silence) This was an instance of a "spot" i n the interaction which ought to have been f i l l e d by an answer, The witness did not give one. PROSECUTOR: Did anything The prosecutor rephrased part happen at that time? of the question i n simpler terms, The process of interpretation involved i n t h i s section of the intera c t i o n , I would suggest, may be described thus: following an inappropriate response to a verbal action (here, silence i n answer to a 95-question) other interactants review the reason for the inappropriate response. Thus f a i l u r e to answer i n court may be due to various factors, for example, w i l f u l refusal to answer, lack of understanding of the question, incapacity due to impairment or incapacity due to nervousness etc. In t h i s example the witness' physical demeanor - b l i n k i n g of her eyes, clasping her hands etc. was defined as nervousness. Further, her manner to the court showed respect i n that she did not speak out of turn and her tone of voice was w e l l modulated. WITNESS: I'm sorry, The witness s t i l l could not could you repeat that? answer the question but comprehended that her f a i l u r e 96. should be recognized i n some fashion. She offered an apology and asked for the question to be repeated. The inference being that she did not understand. PROSECUTOR: W e l l , I ' l l The prosecutor adapted his rephrase the question, examining technique again. Your Worship. I refer The witness was s t i l l to Exhibit 7 - do you categorized as "just nervous", recognize t h i s a r t i c l e ? WITNESS: Yes- The witness provided an appropriate answer to the prosecutor's question. The examination continued and the witness exhibited signs of tension and nervousness throughout the entire appearance. The witness i n th i s example was categorized by the court as a person exhibiting demeanor proper to lay witnesses appearing i n court. Although she lacked composure she incurred no overt sanctions. 97-The c o u r t a p p a r e n t l y d e f i n e d her f a i l u r e to f i l l c e r t a i n spots as due to an a c c e p t a b l e reason. That i s , nervousness-: She was a l s o cognizant of the conventions of i n t e r a c t i o n - The p r o s e c u t o r continued to examine i n s p i t e of the d i f f i c u l t i e s she o b v i o u s l y had understanding him and rephrased h i s questions to t r y to e l i c i t the i n f o r m a t i o n he needed from her. I t seems th a t some l a c k of composure i s a c c e p t a b l e to the court i f i t i s occasioned by nervousness r a t h e r than i n t o x i c a t i o n , The next set of two examples shows occasions on which witnesses l o s t composure. They f a i l e d to show the p r e s c r i b e d a t t r i b u t e s of moral c h a r a c t e r . They l o s t emotional and p h y s i c a l s e l f - c o n t r o l , but they were not c a t e g o r i z e d as u n f i t i n t e r a c t a n t s and were allowed to continue t h e i r evidence. EXAMPLE IV The witness, a defendant, i s d e s c r i b i n g h i s a r r e s t while being examined by h i s own lawyer. 9 8 . WITNESS: They took me . down town and i t wasn'.t u n t i l the next day t h a t I found out what they d i d do. They took the wedding r i n g r i g h t o f f my wife's f i n g e r f o r one, they took the r i n g , they took e v e r y i n g i n the house. LAWYER: ( c u t t i n g i n ) . Mow l e t ' s s t i c k to the p o i n t IIr. M . Mow c a r r y on from t h e r e . T h i s was a h i g h l y emotional p i c a of sympathy. The witness had l o s t h i s s e l f - c o n t r o l . At t h i s p o i n t he seemed about to sob. T h i s was a c l a s s i c example of f a i l u r e to e x h i b i t moral c h a r a c t e r . The lawyer (a p r o f e s s i o n a l i n t e r a c t a n t ) a p p a r e n t l y r e a l i z e d t h a t t h i s emotional tone would not appeal to the c o u r t . Although the s i t u a t i o n was s t r e s s f u l and the matters he had to d e a l w i t h were u p s e t t i n g , i t was e v i d e n t l y p a r t of the c o u r t ' s e x p e c t a t i o n s , that he not lose c o n t r o l . The lawyer t r i e d to d i r e c t h i s c l i e n t to show more 9 9 . s e l f - c o n t r o l by mildly sanctioning him i . e . " l e t ' s s t i c k to the point Mr. M." WITNESS: (ignoring lawyer's caution) God! and they t o l d me that there was a series of The witness did not react to the lawyer's warning that his And the next thing you loss of control would be seen know I've been charged as "improper" demeanor by the court. He continued to give his evidence i n a t e a r f u l tone burglaries and I was the of voice sounding upset and one and I. could see i t speaking r a p i d l y . He implied from the beginning I was,that he was completely helpless under the circumstances, and by implication blameless, set up as a perfect 'There was nothing I could have patsy for those two chaps, done about i t " . He suggested as well as the pol i c e . that he was merely a victim of There was nothing I some unscrupulous people, could have done about i t . MAGISTRATE: (following The magistrate dryly admonished, a further question and the witness for his lack of 100. answer by the lawyer control by r e f e r r i n g to his and the witness). I getting back into the s p e l l was l o s t from that point of things, on when Hr. M. got back into the s p e l l of things. Thus,the witness was sanctioned for lack of emotional s e l f - c o n t r o l i n the courtroom; having to refer to his arrest was too much for him. This was not interpreted by the court, however, as an instance of reasonable loss of control, although i t was not serious enough for him to be categorized as an u n f i t interactant. EXAMPLE V Example V i s an analysis of part of the appearance i n court of a witness who showed a lack of respect for the court and a lack of composure. He l o s t emotional and physical s e l f - c o n t r o l during his evidence. Although he was not deemed an u n f i t interactant, he was categorized as a witness exhibiting sanctionable behaviour. Examination by the defence counsel of a ( 101. person charged with assault causing bodily harm, LAWYER: Did you ever have a conversation with Hr. X? (the person who was alleged to have been assaulted). WITNESS: Yes. DEFENCE COUNSEL: Yes? This was an appropriate answer to the question. Apparently; the answer was not s u f f i c i e n t f or the Court. The lawyer encouraged him to continue. WITNESS: The conversation was about, I brought my garbage down eight days before Christmas. The moment he saw me before the furnace he stood up before the furnace and shouted at me with The witness l o s t both emotional and physical s e l f -control i n that his tone of voice was dramatic, he was shouting and waving his arms. Ke was carried away by having to talk about his previous dealings with the complainant. 102. outstretched hands. I am an outlaw; I'm fed up with youi if., I don't take t h i s nonsense any more. You are endangering the whole public here. (Witness was shouting, gesticulating and dramatizing). LAWYER: Well, what, what ... (trying to stem the flow). The lawyer t r i e d to interrupt the accused. Apparently to stop the accused providing further evidence of lack of moral character through loss of physical and emotional s e l f - c o n t r o l . MAGISTRATE: Well, now. We're not acting a play, w i l l you just give your evidence here. The magistrate indicated that the witness' behaviour was not acceptable to the court. His lack of composure was 103. WITNESS: Yes,indeed, (he looked c r e s t f a l l e n ) . sahctionable and showed a lack of respect for the court. The witness accepted the sanction and modified his behaviour thereafter. Here, i t i s of interest that the witness modified his behaviour a f t e r he was sanctioned for his lack of moral character. He, l i k e the witness i n Example IV, was not categorized as an u n f i t interactant as a result of his behaviour. The following two examples contrast a t o t a l l y unsuccessful demeanor during a court appearance and a highly successful one i n terms of the reaction of the court to the witness' behaviour. EXAI1PLE VI The Defendant was brought In from the c e l l s . He strode across the courtroom looking very sure of himself, 104. MAGISTRATE: Do you know what you're charged wi t h Mr. S., Common Ass a u l t ? DEPENDANT ( r e p l y i n g i n an The witness, while a t t e n d i n g exasperated tone of v o i c e ) . I t h i n k so. I t ' s "been that way eigh t times,' nine times. MAGISTRATE: We l l , I'm not concerned w i t h your record. DEFENDANT: Mr. H. may I ask you one thing? Look ... p a r t i a l l y to the conventions of i n t e r a c t i o n , provided more informati o n than was c a l l e d f o r and i m p l i e d that he was exasperated by the proceedings, Plis exasperation showed l a c k of respect f o r the court. The magistrate construed t h i s confidence as a reference to the witness' record. This may be seen as a sa n c t i o n on the witness' l a c k of respect. The Defendant's tone was c o n f i d i n g . He t r i e d to t a l k to the magistrate on a man to 105. man basis and disregarded courtroom procedure. He t r i e d to create the inference that he was equal to the magistrate, an inappropriate demeanor for a witness, In court the witness i s i n a subordinate position to the magistrate. Further, he asked the magistrate a question. Again, t h i s was inappropriate according to the conventions of courtroom in t e r a c t i o n . MAGISTRATE: (interrupting) The magistrate t r i e d to F i r s t l y , you know what di r e c t the accused's attention the charge means, do to correct courtroom procedure you? Have you decided indicating that the witness 1 what to do with the question was inappropriate. charge? Do you want an adjournment for some reason? DEFENDANT: I would l i k e The witness ignored the i o 6 . to ask you something i f I may. magistrate's question. He t r i e d to bring i n his own subject matter. The conventions of courtroom interaction demand that magistrate 1s questions be answered. Witnesses are not i n a position to choose t h e i r own topic of conversation. MAGISTRATE: Yes? The magistrate was v i s i b l y annoyed. This may be interpreted as a non-verbal sanction on the accused's behaviour. DEFENDANT: (again his The defendant t r i e d to pass the manner implied that he matter off as a result of the was addressing the vagj.rles of his wife i n . magistrate man to man). charging him and then putting You see she's my common up b a i l . lie established he law wife. She's was a landlord, however, by charged me with assault inference, a man of substance. 10?. eight or nine times. I've one assault charge pending now which I'm on p a i l for and she has put up the b a i l , ::>2 , 000P 00 , and she t r i e s to . n o w l a s t night she was i n a bad humour and I had one of the tenants rrder a t a x i over to the Psychiatric ward at the hospital ... (the defendant continued). This explanation was extraneous to the magistrate's concern of whether the defendant wanted the matter to go forward at t h i s time. The accused's explanation was uncalled f o r . The magistrate continued questioning the defendant. I t became apparent that the defendant could not remember the date of his previous appearance nor the name of his lawyer. He gave the appearance of being confused. He eventually remembered these things and continued the story of the alleged assault. This was followed by a discussion of b a i l on the previous case which was put by his common law wife. MAGISTRATE: No, no, I'm The demeanor the defendant not going to set any b a i l wanted to present was at 1 0 8 . u n t i l tomorrow morning. variance with the impression You w i l l remain i n the court received of him. custody. Now, you can He had annoyed the magistrate phone your lawyer at his by i n s i s t i n g on giving an o f f i c e i f you wish. explanation at an inappropriate time and by not showing respect for the court. He had disregarded the conventions of courtroom interaction. In fact the magistrate was sanctioning the witness for his inappropriate behaviour by not granting b a i l . DEFENDANT: You mean ther P. 1 s no b a i l I The witness objected to the decision. MAGISTRATE: No b a i l u n t i l tomorrow morning. DEFENDANT: Then T am to The accused provided an lose my business again. explanation for his objection I operate a business. and a reason for his i m p l i c i t 109-request t h a t the mag i s t r a t e r e c o n s i d e r . MAGISTRATE: A l r i g h t - I ' l l The magistrate a p p a r e n t l y set b a i l f o r ^ OO.OO cash or p r o p e r t y . PROSECUTOR: Here's the complainant now, Your Worship. DEFENDANT: Here's the C ompla i nant. W i l l you continue my b a i l , J e s s i e ? accepted t h i s as a bona f i d e reason f o r g r a n t i n g b a i l . The sum was r e l a t i v e l y low compared to the pr e v i o u s b a i l . Witness a g a i n t a l k e d out of turn, showing l a c k of r e s p e c t f o r the cou r t by d i s r e g a r d i n g the conventions of courtroom i n t e r a c t i o n . The magistrate or p r o s e c u t o r i s supposed to i n i t i a t e i n t e r a c t i o n , . . COMPLAINANT: No, I won't. 110. DEFENDANT: You c a n c e l The defendant began to l o s e that b a i l ? You take my composure.- He shouted and money and s t e a l my pro p e r t y ] POLICEMAN: (attempting to remove him). Come on, now. DEFENDANT: (c ont inuing) ... and give i t to the ni g g e r t h a t you l i v e w i t h . You have taken my whole l i f e away. You s t o l e e v e r y t h i n g I ever had and give i t waved h i s arms. Since he was an experienced courtroom i n t e r a c t a n t i t was reasonable f o r the cou r t to expect that he would a t t e n d to the conventions, The p r o f e s s i o n a l a c t o r (the policeman) c a t e g o r i z e d the defendant as an u n f i t i n t e r a c t a n t . H is l o s s of c o n t r o l was s u f f i c i e n t to l e a d to h i s removal from the courtroom. The defendant continued to shout and r e f e r to p e r s o n a l matters which were extraneous to the concern of the c o u r t . He showed l a c k of r e s p e c t by conducting a p u b l i c q u a r r e l with h i s common law wi f e , 111. to the nigger ... s u f f i c i e n t to warrant his (the defendant was being hustled out of the hustled out to the courtroom, c e l l s ) . This example shows that there are instances of loss of control i n court when the witness i s not impaired but i s s t i l l categorized as an u n f i t interactant. The witness' appearance started out with him being confident of his position but ended with him being hustled out ignominiously to the c e l l s . Mr. S. t r i e d to present himself as a reasonably d i g n i f i e d person, a vi c t i m of the vagaries of his wife's behaviour, a person who could t a l k to the magistrate man to man and explain the circumstances of the charge. However, he f a i l e d to show proper respect for the court, the previous charges he mentioned were interpreted as a record and his behaviour was interpreted as unacceptable by the magistrate who cut off his attempts to explain. Mr. 3., however, was able to establish that was a landlord, by inference a man of substance. He did not attend to the conventions of courtroom 112. i n t e r a c t i o n . His e f f o r t s to present himself as a person exhibiting proper demeanor was spoiled by the fact that he could not remember the date of his l a s t court appearance or his lawyer's name. The impression given by Mr. S. was so bad that b a i l was not set u n t i l he pleaded special circumstances, that i s , he had a business to look a f t e r . When his wife arrived his demeanor became so unacceptable to the court, that he was hurriedly removed from the courtroom by a policeman. To sum up the defendant's attitude to the court, his lack of respect, the subject matter of his utterances, his inattention to the conventions of courtroom int e r a c t i o n and, towards the end of his appearance, his t o t a l demeanor, including loss of physical and emotional s e l f - c o n t r o l , was unacceptable to the Court. Example VII i s taken from the appearance of a man charged with causing a disturbance i n a public place.. His demeanor throughout his appearance was respectful and d i g n i f i e d . He handled the f a t e f u l event i n an e n t i r e l y acceptable manner, presenting himself as a man who found himself i n these circumstances by accident and although he pleaded 113. g u i l t y he was somewhat perplexed by the whole thing. Throughout his appearance the defendant attended to the conventions of inte r a c t i o n . When explanations were ca l l e d f or by the magistrate they were given. His answers were appropriate to the subject matter of the questions. PROSECUTOR: The defendant punched one of the other youths causing him to enter into a s c u f f l e , He resisted e f f o r t s to get him to a l i g h t from the paddy wagon,Your Worship and had to be f o r c i b l y removed. MAGISTRATE: Is that correct Mr. T.? DEFENDANT: Not i n a l l respects, S i r . The Magistrate's utterance created a 11 spot" for an answer. The defendant gave an appropriate answer. His reply was reasonable, his tone 114. respectful. He admitted that the report was partly right hut gave himself room for repairing his demeanor. He had alrea.dy admitted that he had broken the law when he pleaded g u i l t y but by c a l l i n g the magistrate S i r he showed the court proper respect. MAGISTRATE: Is there The magistrate c a l l e d for an anything you would l i k e explanation of the circumstances, to say about the circumstances? DEFENDANT: There was, uh, nobody h i t . The witness began to qualify the police report but i n a modest, respectful tone of voice The inference was that his conduct was not as bad as i t sounded. MAGISTRATE: Didn't you The magistrate asked the punch or push someone?. witness to make his objection 115. more s p e c i f i c . Pie drew the witness 1 attention to the fa c t that punching or pushing could be described as h i t . DEFENDANT: N e l l , there The inference here was that a was some pushing, yes, push was not as bad as a h i t . but there was no h i t t i n g or anything. MAGISTRATE: Not a punch? The magistrate, apparently, expected absolute c l a r i t y from the witness regarding the differences between punching and h i t t i n g . DEFENDANT: No, just The contradiction of the report pushing and. uh, was offered d i f f i d e n t l y , i n a r e s i s t i n g , uh, quiet respectful tone of voice, r e s i s t i n g coming out of The inference the witness the paddy wagon. I hoped the court would make was never resisted, I just that he only did what anyone asked them i f they would do with any i n t e g r i t y , would l e t me walk i n by 116. myself, I mean otherwise I wouldn 1t have. The defendant went on to answer the magistrate's questions about the circumstances quietly and respect f u l l y i n well modulated tones, having regard to the subject matter of the questions. That i s , the answers were relevent. He continued to attend to the conventions of s o c i a l i n teraction i n general. MAGISTRATE: Were these people that you knew: t h i s night or t h i s morning? DEFENDANT: No, I was under the influence of alcohol and kind of queazy anyway but I don't know the fellow I was t a l k i n g to at a l l . The witness provided an appropriate answer to the question. He admitted that he had been drinking, giving the impression that i f he was w i l l i n g to be honest about that, he was probably t e l l i n g the truth about the re s t . 117. MAGISTRATE: You were drinking? DEFENDANT: Yes. MAGISTRATE: You were The magistrate pointed out the drunk? difference between drinking and being drunk. He implied that being drunk would be worse than having been drinking. DEFENDANT: No. The defendant reiterated that i t wasn't as bad as i t sounded. He gave the impression that although he might drink he knew when to stop. MAGISTRATE: N e l l , suspend sentence. In t h i s example the witness retained his composure throughout his appearance. He gave the impression of a man of i n t e g r i t y and showed the court proper respect. Further : he attended to the conventions of courtroom and s o c i a l i n t e r a c t i o n i n 118. general. The magistrate accepted his submission that the incident was not a serious one,-, that he had not i n effect committed a second offence by being drunk i n a public place; and categorized him as a person who did not "normally" commit offences.-Chapter three has set out to examine the relevence of the attributes of moral character as exhibited by persons involved i n f a t e f u l events i n the courtroom setting. I t has been suggested that the three a t t r i b u t e s , composure, i n t e g r i t y and respect are expected of lay witnesses and that a f a i l u r e to show these att r i b u t e s affects the categorization of witnesses by professional interactants. Instances were analysed where witnesses who were categorized as u n f i t interactants, having broken the prescriptions regarding demeanor, were removed from the court. The " f a t e f u l event" was more successfully managed by those who showed the attributes of moral character. A further dimension of demeanor was examined, that of having regard, to the conventions of inte r a c t i o n . I t was shown that the conventions were attended to i n 1 1 9 . v a r y i n g degrees "by the witnesses i n the examples and that d i s r e g a r d was sanctionable according to how the court perceived the reasons f o r the witnesses i g n o r i n g these conventions. Sanctions were administered and l a y i n t e r a c t a n t s were c a t e g o r i z e d , p a r t l y a c c o r d i n g l y to t h e i r a t t e n t i o n to these conventions of i n t e r a c t i o n . 120. FOOTNOTES: CHAPTER I I I 1. A f a t e f u l event may be defined as one i n which a c t i v i t y for the participants i s "problematic and consequential"„ I t i s maintained that an appearance i n court has these attributes for lay participants. See Erving Goffman "Where the Action I s " , Interaction R i t u a l , p. 164. 2. Op, c i t p. 222 3. With respect to i n t e g r i t y , witnesses are asked to swear that they w i l l t e l l the truth and nothing but the truth. They are put on oath. The question of what constitutes "the truth" i s not one to which t h i s study i s addressed, although the argument could be made that for the court the truth i s the relevent truth which may be d i f f e r e n t l y defined by lay and professional actors. 4. Harold Garfinkel, Studies i n Ethnomethodology, Ps.ge 8 5. c f . Kenneth Pike's concepts of "spot" and "class" i n terms of verbal behaviour. " A l l behaviour (including verbal behaviour) contains s i g n i f i c a n t spots at which behaviour occurences may be found. ... items appropriate to a spot consitute a class". K.L. Pike "Towards a Theory of the Structure of Human Behaviour" i n D e l l Hymes (Ed.) Language i n Culture and Society, Harper and Row, New York, 1964. 121. CHAPTER IV PRESENTATION OF DEMEANOR Chapter I I I showed the importance of a witness displaying the attributes of "moral character" during his appearance i n court. The attributes of moral character, however, are not the only aspects of acceptable demeanor i n the courtroom setting which may be inquired into. Purely physical demeanor may be considered together with the verbal l i n e of the witness. The witness " l i n e " may be defined as "the account which he gives of himself and his relevance to the allegedly criminal act which i s the concern of the court". This i s someTtfhat difference from Goffman's d e f i n i t i o n of " l i n e " quoted i n Chapter I. ^ With respect to the physical attributes of a witness, he may be at some disadvantage during the interaction i n that having spent the night i n the c e l l s , he comes into the courtroom looking disheveled and untidy. He may be accompanied by a policeman. Another factor may be that persons involved i n criminal t r i a l s are frequently from a low socio-economic strata and show by t h e i r dress and deportment t h e i r differences 122. i n these terms from the professional courtroom actors who usually come from higher socio-economic s t r a t a . Although these factors may be disregarded by professional actors. the witness, himself, may f e e l at a disadvantage. As to a witness' verbal l i n e , i t was pointed out i n Chapter I I that t h i s i s not accepted on t r u s t . The adversary system allows the witness to give his account of the case and his account may be subject to detailed examination and cross-examination. Again, i f he i s an accused he starts at a disadvantage. He does not, as Goffman has pointed out i s the case i n s o c i a l 2 encounters, have ''proper demeanor1' ascribed to him. In l e g a l terms the accused i s innocent u n t i l proved g u i l t y , nevertheless, he enters the inte r a c t i o n with the demeanor of "the kind of person who i s charged with criminal offences" ascribed to him. The witness, therefore, expecially i f he i s an accused person, i s forced to make positive e f f o r t s to present himself as a properly demeaned member of society. This i s , one who does not commit crimes, or i f he i s pleading g u i l t y , one who was inadvertantly involved and "won't do i t again". 123. I t i s maintained that a witness who i s not an accused i s concerned to present himself as a t r u t h f u l person who knows what he i s tal k i n g about. Chapter I\ w i l l examine some of the common understandings which witnesses share about the kinds of positive verbal actions which are l i k e l y to establish them as properly demeaned members of the setting and of society i n general. Although lay witnesses are not so c i a l i z e d members of the setting i n the sense suggested i n Chapter I I I they do possess some understandings, apparently common to members of society i n general, about management of appearances i n court with respect to t h e i r verbal l i n e . These presumably have been gleaned from various sources, for instance, newspapers, books or t e l e v i s i o n , the experiences of friends i n court, or for some, t h e i r own previous experiences. The examples and analysis for t h i s section of the Chapter w i l l concentrate on the problem of the accused, since t h i s i s the most equivocal s i t u a t i o n for establishing "proper demeanor". The, accused.'s 124. verbal l i n e i s c r u c i a l i n the court's concern with whether or not he committed the crime. The accused's l i n e or argument may include a number of excuses. I f he i s pleading g u i l t y , he usually presents an excuse or a j u s t i f i c a t i o n for his acts. I f he i s pleading not g u i l t y , he i s l i k e l y to present an explanation of why he has been charged or of the apparent facts of the case, Austin has pointed out that the p r i n c i p l e s of apology and excuse are essential mechanisms f a c i l i t a t i n g the smooth functioning of s o c i a l a c t i v i t i e s with regard to 4 everyday int e r a c t i o n . The offering of excuses i s almost an habitual response of an offender who wishes to defend himself i n order to avoid sanction f o r behaviour that he feels may be displeasing to others i n the s i t u a t i o n . The offering of excuses may be seen as a technique enshrined i n the common understandings of members about such sit u a t i o n s . In everyday a c t i v i t i e s excuses have the power to exempt actors from the consequences of t h e i r actions, although they may vary i n t h e i r a c c e p t a b i l i t y . Austin states "?it i s ch a r a c t e r i s t i c of excuses to be "unacceptable" given, I suppose, almost any excuse, there w i l l be cases of such 1 2 5 . kind oi* of such gravity that !'we w i l l not accept i t " " ' In the courts, apologies and excuses do not have the power to exempt an offender from sanction. The court procedure a l l o c s the accused to plead g u i l t y or not g u i l t y . I f the case i s proved beyond a reasonable doubt, then excuses are not relevent to the establishment of g u i l t , although tjhey may be relevent for sentencing. The only acceptable l i n e which w i l l lead to an accused being categorized as "not g u i l t y " i s one that raises a reasonable doubt that he did not commit the offence, or that no offence was committed,^ An accused i s not always aware that these are part of the rules of court, thus, although he pleads g u i l t y , he may then t r y to excuse himself. Whether he pleads g u i l t y or not g u i l t y , especially to a lesser offence, excuses and explanations which he presents to the court may be defined as being seen as s u f f i c i e n t by the accused, i n that he perceives them as being s u f f i c i e n t to exempt him from sanctions. .In the event,the accused's notion 7 of s ufficiency may be di f f e r e n t from that of the court* 126. EXAMPLE I Example I shows a case i n which the accused admitted that he was g u i l t y of making an i l l e g a l t u r n but t r i e d to argue that he should be excused since f i r s t of a l l he was a doctor on h i s way to d e l i v e r a speech at a meeting; he was preoccupied w i t h the speech and hur r y i n g i n order not to be l a t e . Furthermore, he explained h i s f a i l u r e to see a s i g n by the f a c t that the i n t e r s e c t i o n was u n f a m i l i a r to him and h i s v i s i o n was obscured by r a i n and a large truck i n f r o n t of h i s car. Thus, although he pleaded g u i l t y h i s " l i n e " was that he had a s e r i e s of excuses f o r h i s a c t i o n s and he was not the k i n d of person who "normally" d i d such a t h i n g . He was only g u i l t y due to the s p e c i a l circumstances. He presented these excuses as s u f f i c i e n t to e x p l a i n why he made an i l l e g a l t u r n . He seemed to expect the courts to "understand", perhaps there was an element of "doctors don't break the law d e l i b e r a t e l y ' , i n h i s explan a t i o n . He x^ as v i r t u a l l y i n voking the do c t r i n e of"mens rea", no g u i l t y i n t e n t , by implying that he d i d not mean to do 127. i t . I n law; the argument of "no g u i l t y i n t e n t " i s not rel e v e n t to a minor t r a f f i c i n f r a c t i o n . By s t a t i n g that he was preoccupied w i t h h i s speech, the witness seemed to be drawing on c u l t u r a l stereo-types of "those about to d e l i v e r a speech". The example shows that t h i s was an occasion when the o f f e r i n g of an excuse was seen as appropriate by the l a y i n t e r a c t a n t but ina p p r o p r i a t e by the court. The accused was categorized as g u i l t y because he pleaded g u i l t y . I t i s s i g n i f i c a n t that the magistrate i n t h i s ca.se explained to the defendant that i f he committed the act there was no releven t excuse even though the witness himself thought there was. EXAMPLE II In the f o l l o w i n g example the defendant, who was a l l e g e d to have committed a t r a f f i c i n f r a c t i o n by speeding, pleaded not g u i l t y , I-Iis expLanation of h i s involvement i n the charge was that he had. been u n j u s t l y accused. He denied the evidence of the p o l i c e o f f i c e r . The defendant presented, himself as a pro p e r l y demeaned member of s o c i e t y ; he argued that he was a good d r i v e r and good d r i v e r s do not commit t r a f f i c offences. Since 128. he was a good, driver he could, not accept the evidence of the police o f f i c e r . He s t a t e d , "I x-ius surprised and just to prove i t to ray s e l f I actually went 44 n.p.h. and. I was sure that was rauch faster than what I was going when I was charged.1'. The interesting factor here i s that the nan who saw himself as unjustly accused, found, t h i s to be s u f f i c i e n t reason for deliberately breaking the law i n order to test 44 n.p.h. against his previous speed.. This i s not l o g i c a l l y consistent with his c l a m that he never broke the law. The accused, saw t h i s argument as s u f f i c i e n t to avoid, sanction. He failed, to appreciate that he needed sone objective evidence to put before the court to back up his surprise and. his opinion about the speed at which he was going, " I was sure that was nuch fas t e r " , since his evidence c o n t r a d i c t e d evidence of the police o f f i c e r who measured his speed, w i t h a speedometer. The defendant' s argument that good, drivers do not break the law seems to be .at variance with connon c u l t u r a l expectations about t r a f f i c i n f r a c t i o n s , which are, I would, submit, nearer to " i t ' s a l r i g h t I you don't get caught" or ,!everybody does i t " . The witness' l i n e was net accepted, by the court. 129-These f i r s t two examples were taken from the T r a f f i c Court which deals with r e l a t i v e l y minor offences. They show witnesses who presented excuses, j u s t i f i c a t i o n s and explanations i n an e f f o r t to present themselves as properly demeaned members of society. They were not represented by lawyers. In many cases, and c e r t a i n l y those of a serious nature, the accused i s represented by a Lawyer and has an a l l y i n tho presentation of his l i n e . Furthermore, other witnesses may be brought by the defence to bolster the l i n e of the accused. Example I I I consists of an analysis of the argument of an accused who was charged with impaired dr i v i n g and the methods which his lawyer used to help him present the demeanor proper to a law abiding member of society. In the case for the Crown the evidence was given that the accused was driv i n g a car while his a b i l i t y to drive was impaired by alcohol. After he had drawn into the curb he backed up and h i t a police car. When questioned by the police he was staggering 130. and h i s breath onelied of alcohol. He did not do well on impairment tests and the breathalizer reading showed an alcohol content high enough to cause impairment. The defence counsel guided the examination i n chief, tho method whereby the defence counsel helps the accused present his l i n e , with great care i n order to answer each ''damaging fact' : i n the Crown's case, His strategy was to provide an alternative explanation for the facts that the accused, was staggering, that he h i t a police car, etc, The a i n was to show that the accused's behaviour which led the police to i n f e r that he was impaired could equally well lead to other inferences. He attempted to establish that the accused had drunk some beer but was not impaired. The lawyer asked d e t a i l s about the band at the Legion where the accused had been drinking to show that his memory was clear and he was capable of observing c l e a r l y at the time. Secondly, that he did not see the police car when he was backing up, t h i r d l y , that he had a back condition which made him. stagger. With respect to the tests for impairment, the lawyer attempted to esta b l i s h that i f one were not f a m i l i a r with the tests 131. i t would bo d i f f i c u l t to do thorn w e l l . Secondly, that the breathalizor reading would d i f f 2 r according to which technique one used i n blowing into i t . I t i s not proposed to analyze the entire examination-in-chief but to present one section to show the technique whereby the lawyer c a r e f u l l y drew out the information he wanted from his c l i e n t , i n order to answer the case for tho Crown and help his c l i e n t e s t a b l i s h acceptable demeanor. EXAMPLE- I I I DEFENCE LAWYER: Mow, The lawyer reiterated the you 1ve heard the evidence presented by the Crown evidence of the i n some d e t a i l , presumably to constable, er. two of focus the attention of the the constables, er, accused and the court on that you swayed and had t h i s p a r t i c u l a r part of i t . d i f f i c u l t y i n turning Lo called for an explanation the l i n o and that your of the 'damaging f a c t s " ; These balance was poor- Can were some of the main points you explain this? of the crown's case. On the 132. WITNESS: Yes, S i r , LAWYER: How? face of i t they would seen to create the inference that the siccus ed was drunk. This i s another exariple of the kind of ; ; e l i p t i o a l t a l k " used i n everyday int e r a c t i o n . The lawyer asked for an explanation as part of his concern to nake the i n p l i c i t , explicit„ WITNESS: I'n under chiropractor t re atne nt for a. couple of slipped discs and I'n supposed to wear a 3/3ths inch shoe l i f t and at the tine I d i d n't have o n e . The accused apparently perceived t h i s statement as s u f f i c i e n t for the court to in f e r that he would stagger etc. i f he were not wearing a shoe l i f t , although he did not state d i r e c t l y how the lack of the shoe l i f t affected his balance. 133-LAWYER: Er, does th i s have any effect on whether or not y o u get tired? The lawyer indicated that the accused's statement was not s u f f i c i e n t for the ccurt, although i n ordinary interaction a participant i s e n t i t l e d to expect others to understand the implications of such an explanation. WITNESS: Yes, " i r . Again the accused seemed inclined to leave i t at that. what effect? The lax:yer had to prompt him to provide more d e t a i l . WITNESS: Well ... Well er, I'get t i r e d and I droop and er put more pressure on ny right left to «.. (witness t r a i l e d o f f ) . DEFENCE LAWYER: ( f i n i s h i n g for hiu). Compensate? 134. WITNESS: Compensate The inference here was that when the witness was t i r e d and put more pressure on hi s right leg to compensat he might look as i f he was staggering because he was drunk. The lawyer went on to e l i c i t the fact that on the night i n question the accused was t i r e d because he had been walking a great deal. This completed the section of the examination on physical demeanor. The lawyer apparently saw the evidence as s u f f i c i e n t for the court to draw the inference that the accused was not staggering because he was drunk but because he was t i r e d and ought to have been wearing a shoe l i f t . That i s , he provided an alternative explanation for the accused's behaviour to the inference made by the pol i c e . I t should be noted that the lawyer's notion of sufficiency c a l l e d for more d e t a i l than that of the witness, since the lawyer had to ask strategic questions to get the witness to provide enough for the court. The examination continued. 135. LAWYER: Do you have tho l i f t with you now? WITNESS: Yes, S i r . LAWYER: Is i t i n your shoo? WITNESS: Yes, S i r . LAWYER: May I see i t , please? (The lawyer The lawyer,apparently,saw the production of a piece of took the shoe l i f t from physical evidence as v e r i f y i n g the accused and displayed i t to the court.) the accused's j u s t i f i c a t i o n for his physical demeanor at the time of his arrest. The assertion of the existence of the shoe l i f t by the accused himself was not s u f f i c i e n t for the court. LAWYER: Now i s t h i s the: l i f t to which you were referring? The lawyer saw i t as necessary to i d e n t i f y t h i s shoe l i f t as the shoe l i f t . WITNESS: Yes, S i r . 136 . DEFENCE LAWYER: Your Worship, I don't want to put t h i s i n as an e x h i b i t . I j u s t wanted Your worship to see the e x i s t e n c e and a l s o my f r i e n d to see the e x i s t e n c e of the l i f t . T h i s example shows a p r e s e n t a t i o n of demeanor which was a j o i n t e f f o r t between the defence lawyer and h i s c l i e n t . The lawyer p o i n t e d out aspects of the accused's behaviour which ought to be e x p l a i n e d , i n t h i s case the accused's p h y s i c a l demeanor at the time of h i s a r r e s t . The lawyer helped the witness to put forward an argument which covered every aspect of the behaviour to be e x p l a i n e d and p r o v i d e d an a l t e r n a t i v e to the p o l i c e i n t e r p r e t a t i o n of h i s behaviour. He guided the accused through the e x a m i n a t i o n - i n - c h i e f and c a r e f u l l y ansx\rered each p o i n t r a i s e d by the Crown. E x p l a n a t i o n s were pro v i d e d f o r a p p a r e n t l y i n c r i m i n a t i n g evidence. The argument was v i r t u a l l y t h a t the accused was not impaired. 137. therefore, no crime had been committed. Things were not what they seemed. The next section of t h i s Chapter w i l l provide analyses of further instances of lawyer's aiding t h e i r witnesses. These are not a l l examples taken from the evidence of defendants since i t i s of interest to see various methods lawyers use to protect and aid any witnesses for t h e i r own side, that i s , protecting t h e i r presentation and aiding i n the maintenance of demeanor. I t may be necessary during an examination-in-chief for a lawyer to help his witness manage embarrassing or upsetting disclosures. In t h i s event, an attempt i s usually made to make i t appear that the witness i s understandably embarrassed or upset, considering the circumstances. For example, at the beginning of the complainant's testimony i n a rape case, her lawyer (the Crown Counsel) t r i e d to have the courtroom cleared of spectators, since he expected her to be embarrassed and upset by the proceedings as would b e f i t a young g i r l i n such circumstances. In cross-examination, when the witness i s being 138. questioned, by the opposing side, the lawyer has various methods of protecting his own witness' demeanor, including his verbal l i n e when this i s being threatened. One such method i s to interrupt the opposing lawyer's examination of his witness when he sees his witness beginning to flouder. A rule of evidence may be invoked to keep out damaging facts which the witness might admit during cross-examination. A lawyer may interrupt, however, when the witness i s confused or about to break down. Confusion or breakdown may put his c r e d i b i l i t y i n issue. I f a witness i s confused he i s u n l i k e l y to be able to t e l l the truth .about .a pa r t i c u l a r set of events since his memory cannot be trusted. Example V shows an instance of a defence lawyer who cut into a cross-examination being conducted by the prosecutor. To interpret'the accused's apparent confusion to the court. Such an interruption may serve to protect the xvitness from exhibiting improper demeanor or compounding his already confused demeanor. The witness was being questioned about whether he saw the other car before the accident. He was charged with 1 3 9 -f a i l i n g to y i e l d the right of way. EXAMPLE V WITNESS: No, no, I didn't The witness answered i n a see any cars moving, PROSECUTOR: Surely you don't deny that she was in fact there? confident tone of voice. The prosecutor implied by his tone of voice and his "surely you don't ..." that the witness was being unreasonable. WITNESS: I know she was there, she h i t ae, This i s another example of e l i p i t i c a l t a l k , which i s an essential feature of everyday interaction, getting a witness into trouble i n court. In the second utterance the witness stated that he had no doubt that the other car was there although he did not see her. The inference was that i t i s possible to 14 o. look and not see what was there This i s a state of a f f a i r s which i s accepted as a common occurrence i n everyday inte r a c t i o n . Compare, for instance, the normally acceptable excuse "I didn't see her" which, given the fact that i t i s a reply to "why didn't you say hello?", contains the i m p l i c i t acceptance of the fact that she was there. PROSECUTOR: I see, so The prosecutor seemed to be what you i n fact saw, trying to make the witness wasn't r e a l l y what was look f o o l i s h and confused, there. WITNESS: Well, I don't The witness was uncertain of know how you ... ( t r a i l s how to answer the prosecutor o f f ) . and t r a i l e d off without f i n i s h i n g his sentence. He 141. was apparently confused by the fact that the prosecutor had not made the inference about the d i s t i n c t i o n between looking and DEFENCE COUNSEL: (cutting Defence counsel saw the i n ) . I am a f r a i d we didn't follow that question. witness' confusion. He cut i n to protect the witness' demeanor and his verbal l i n e . That i s , the account he was giving of himself. The use of "we;i seemed to be a gesture of s o l i d i t y . PROSECUTOPi: (addressing This p a r t i c u l a r utterance seemed the defence counsel) to have been designed to confuse Well, she was there and the witness even more. I t he said he didn't see her there. So, i f he looked and didn't see her, he didn't see what he thought he saw. reiterates the fact that the prosecutor was not w i l l i n g to make the d i s t i n c t i o n between looking and seeing. 142. WITNESS: Well, I saw... The witness was s t i l l confused. DEFENCE COUNSEL: (cutting The defence counsel cut i n in) He's s t i l l l o s t . here, apparently to stop the witness 1 attempt to respond to the p a r t i c u l a r l y confusing observation by the prosecutor. Confusion on the part of the witness could effect his c r e d i b i l i t y . This example shows an instance of a lawyer cutting into a cross-examination apparently to give the witness some time to think and to protect him from appearing confused and f o o l i s h , which might a f f e c t the c r e d i b i l i t y of his l i n e . The f o l l o w i n g example i s of si m i l a r nature. I t is taken from the cross-examination of the man charged with impaired d r i v i n g . The prosecutor pressed the witness, repeatedly asking him i f he was sure of his point, apparently i n order to create a doubt i n the courtroom participants' minds about whether the witness r e a l l y was sure. The defence counsel cut i n to modify the effects of the prosecutor's rapid, dogged questioning and possibly to remind the witness that 143-there was someone on h i s s i d e . EXAMPLE VI The witness was being questioned about the time a t which he d i d c e r t a i n t h i n g s on the n i g h t he was a r r e s t e d . P.R0.3EGUT0R: What time do you t h i n k you performed the b r e a t h a l i z e r t e s t ? I t was important i n t h i s case that the accused have a c l e a r r e c o l l e c t i o n of time s i n c e i f h i s memory was c l e a r this would c r e a t e the i n f e r e n c e t h a t he was not impaired a t the time of h i s a r r e s t . H is r e c o l l e c t i o n of time was used as a major r e f e r e n c e p o i n t i n the Crown's case. WITNESS: Er, that was i n the e a r l y p a r t of the morning. Witness' r e p l y i n d i c a t e d a p e r i o d of time r a t h e r than the exact time. T h i s i s the kind of terra o f t e n used i n everyday i n t e r a c t i o n 144. PROSECUTOR: (with i r r i t a t i o n ) What time? when re f e r r i n g to time. I t i s a l l i e d to the answer "soon", or "sometime ago", as a reply to "when?" The prosecutor indicated that "loose t a l k " was not acceptable, and that a clearer r e c o l l e c t i o n of time was needed to get the witness off the charge. WITNESS: I couldn't The witness indicated that he say, S i r - was tunable to be more s p e c i f i c . His reply s t i l l seemed reasonable to him but he added, S i r , to show that he was a respectful person. PROSECUTOR: Do you have The phrase "any idea" i s any idea? nearer to phrases used i n everyday i n t e r a c t i o n . "Some idea" might be more acceptable 145-WITNESS: No, I wouldn't, S i r . PROSECUTOR: None! Do you know what tirae i t was when you went out to your car? WITNESS: Yes, S i r . PROSECUTOR: What tine? WITNESS: Er, when I went to the car i t was just, er, just lee fore twelve. PROSECUTOR: Just before twelve, than "none at a l l " . The witness indicated that he could not be more s p e c i f i c . The prosecutor implied that "no idea at a l l " of the time created the inference that the witness was impaired. He apparently decided to test the accused's memory further. The witness sounded confident. The prosecutor indicated that the exact time was ca l l e d f o r . The witness showed signs of being nervous and confused. But "just before twelve" i s more s p e c i f i c than the terms he used previously. The prosecutor repeated what the witness had said, possibly 146. PROSECUTOR: You're q u i t e sure of t h a t now? DEFENCE LAWYER: ( c u t t i n g i n t o the c r o s s -exaraination) , Pardon rae, which, I wonder i f my f r i e n d could c l a r i f y which car? to commit the witness to th a t p a r t i c u l a r time. Asking the witness whether he i s sure, c r e a t e s the i n f e r e n c e t h a t he might not be. T h i s appears to have been a somewhat desperate move by the defence lawyer s i n c e only one ca r had been r e f e r r e d t o . The lawyer may have seen t h i s as e s s e n t i a l s i n c e the witness had made a poor showing when p r e v i o u s l y pressed f o r d e t a i l s about time i . e . he had admitted that he had no r e c o l l e c t i o n of the time he had taken the b r e a t h a l i z e r t e s t . I suggest the lawyer i n t e r r u p t e d i n order to give the witness time to t h i n k and to compose h i m s e l f . PROSECUTOR: (with impatience) When you went to move your car from one side of the road to the other, what time was that? WITNESS: Well, I l e f t the er w e l l , i t would be around twelve, a l i t t l e a f t e r twelve, I didn't pay too much attention because I had. just come i n . The prosecutor was forced, to rephrase his question, i n fact to be more s p e c i f i c . The defence counsel had i n fact asked, for "courtroom tal k " , more s p e c i f i c i t y , from the prosecutor. The witness had. changed his mind about the time. Now i t was "around twelve, a l i t t l e a f t e r twelve" instead of just before twelve. These are a l l terms normally acceptable i n everyday i n t e r a c t i o n . In case these were not s p e c i f i c enough, the witness offered an excuse for not paying attention: he had just come i n . Re saw th i s as providing s u f f i c i e n t reason for not remembering time exactly. 148 A further nethod used by lawyers i n aiding witnesses i n the maintenance of verbal l i n e i s the re-examination. During t h i s , a lawyer may attempt to repair the demeanor of his witness which has suffered during cross-examination by re-examining him on a point on which he sounded confused. In Example VII a lawyer re-examined his witness on the question of the speed at which he was t r a v e l l i n g at the time he was involved i n a c o l l i s i o n . During the cross-examination the witness had. referred, to a "walking pace of about 15 n.p.h." EXAMPLE; VII LAWYER: Yes. Now what The lawyer established the was your speed from the point that the defendant could, time you decreased to have d.ecreased speed a f t e r he 15 miles u n t i l the tine was t r a v e l l i n g at 15 n.p.h. you were involved i n the c o l l i s i o n ? WITNESS: I was, I braked. The witness seemed, somewhat and stopped before I was,, confused, he t r i e d to reiterate 149. b e f o r e the centre l i n e , so i t was unavoidable. the f a c t t h a t the c o l l i s i o n was unavoidable, an o b s e r v a t i o n which was i r r e l e v a n t a t t h i s p a r t i c u l a r j u n c t u r e . DEFENCE LAWYER.: You "A walking pace" i s another r e f e r r e d i n your evidence example of "loose t a l k " used e a r l i e r to a walking Pace i n co n n e c t i o n with the i n t e r s e c t i o n . What d i d you mean by that? i n everyday i n t e r a c t i o n . Again, t h i s i s not s p e c i f i c enough g i v e n the background expectancies of the courtroom. The i s s u e of speed was c r u c i a l s i n c e the case was concerned with the q u e s t i o n of blame f o r an a c c i d e n t . The i n f e r e n c e would be that i f the defendant had been d r i v i n g too f a s t then he would more l i k e l y to have been to blame f o r the a c c i d e n t . WITNESS: Well t h a t ' s : I The defendant was unable to was proceeding j u s t at normal walking pace. prod.uce a more s p e c i f i c d e s c r i p t i o n of h i s speed. 150. He v i r t u a l l y appealed to common c u l t u r a l understandings about the terra "walking pace". DEFENCE LAWYER: Thame The defence lawyer i n his f i r s t you. question created the inference that 15 m.p.h, was too f a s t , for a walking pace. He made a d i s t i n c t i o n that was not made i n cross-examination between the point a t which the accused decreased 15 m.p.h. and the point at which the c o l l i s i o n took place- Thus the witness was able to say that he decreased even more i n speed before the c o l l i s i o n . Chapter IV has shown that lay witnesses i n the courtroom setting are concerned to present themselves a's properly de?neaned persons. They present excuses, j u s t i f i c a t i o n s and explanations for t h e i r involvement i n the case. I t was suggested that the offering of 151. excuses i s the h a b i t u a l response of an offender i n v o l v e d i n everyday i n t e r a c t i o n . Such devices f o r a v o i d i n g s a n c t i o n , however, are f r e q u e n t l y defined as i r r e l e v a n t to the issue of g u i l t by p r o f e s s i o n a l courtroom members, fr e q u e n t l y to the p e r l e n i t y of l a y p a r t i c i p a n t s . The second part of the chapter showed the s t r u c t u r i n g of i n t e r a c t i o n which occurs by v i r t u e of the f a c t that each side i n the t r i a l has an advocate ( i f the defence i s represented by a lawyer). In these circumstances, the witness has an a l l y i n h i s p r e s e n t a t i o n of proper demeanor. Some methods which are part of the background expectancies of p r o f e s s i o n a l a c t o r s i n the courtroom about ways i n which lawyers may help witnesses i n t h i s matter were examined, together w i t h s e v e r a l methods which are used to pr o t e c t witnesses from threads to demeanor. 152. FOOTNOTES: CHAPTER IV 1 . Goffman; Facework, p. 5 2. See Chapter t i on the pr i n c i p l e of t r u s t . 3 . Page 72 f . f . regarding categorization by professional interactants. 4. J,L. Austin, "A Plea for Excuses", i n V.C, Chappell (Ed.) Ordinary Language, Prentice K a i l , Englewood C l i f f s , N.J. 1964. 5 . Op. c i t . p. 56 6. In serious criminal cases the argument of "mens rea" or g u i l t y intent may be relevent. I t i s not relevent i n minor offences. 7. I t should be noted that excuses are sometimes put forward with an a i r of desperation. The accused apparently hope s that the excuse w i l l prove s u f f i c i e n t . This does not mean that an accused perceives that an excuse may not be relevent, but that, as i n everyday l i f e , he perceives there are good excuses and bad excuses. 153. CHAPTER V CONCLUSIONS T h i s t h e s i s has attempted to d i s c o v e r and d e s c r i b e sone df the b a s i c r u l e s which s t r u c t u r e i n t e r a c t i o n i n the courtroom. I have suggested t h a t two a n a l y t i c a l l y d i s t i n c t s e t s of background expectancies have t h e i r e f f e c t on what the p a r t i c i p a n t s say to each other and expect of each other. These are, f i r s t , the background expectancies which l a y p a r t i c i p a n t s b r i n g to the courtroom s e t t i n g and which are p a r t of the common understandings of our c u l t u r e i n g e n e r a l and, second, the background expectancies which are s p e c i f i c to the s e t t i n g i t s e l f and are shared by p r o f e s s i o n a l p a r t i c i p a n t s . The background expectancies which p a r t i c i p a n t s have about what happens to a witness d u r i n g h'.s appearance i n court have been my concern i n t h i s study. The o p e r a t i o n of these two d i s t i n c t s e t s of , comnon understandings may l e a d to d i f f e r e n t i n t e r p r e t a t i o n s Of what i s going on i n court by l a y and p r o f e s s i o n a l i n t e r a c t a n t s . I presented data which showed t h a t a layman may be s u r p r i s e d , confused and upset by i n f r a c t i o n s of the unspoken r u l e s which o r d i n a r i l y 154. hold i n everyday interaction hut which often do not hold, i n the courtroom. Lawyers frequently indicated, for instance, that the kind, of " e l i p i t i c a l t a l k " which i s commonly used, i n everyday interaction by participants who r e l y on inferences and. interpretations for a more c o n p l e t e understanding of what i s being said, was not s p e c i f i c enough for the court,. I t seemed, to be the task of lawyers to make the i m p l i c i t , e x p l i c i t , before evidence became of value to tho decision maker. Some of the rules of proscription, s p e c i f i c a l l y those of avoidance and. t r u s t , which Goffman proposes structure everyday i n t e r a c t i o n , 1 are deliberately violated, i n the courtroom and. background. expectancies of professional and lay inteiactants about the operation of these rules were often a t variance. I have suggested, that these v i o l a t i o n s have add.ed. significance considering the s i t u a t i o n a l aspects of 2 the courtroom. i-''or instance, many witnesses apparently realized, that natters raised, through a normally proscribed, inquiry into t h e i r personal li f e -might a f f e c t t h e i r c r e d i b i l i t y and. through t h i s the case i t s e l f . 155. Considering the s i t u a t i o n a l aspects of the court, Ttfltnesses mad.e positive e f f o r t s to present themselves as properly demeaned. The attributes of "proper demeanor" which, as i t seemed to me, were expected of witnesses by professional participants were set out i n Chapter I I I . The data showed, the kind of behaviour which i s sanctioned i n court and the process of categorization of witnesses by professional interactants as " u n f i t " , "sanctionable", etc. I t was proposed tha-1" a witness who f a i l e d to show the relevent attributes of moral character, together with a f a i l u r e to observe the conventions of interaction was l i k e l y to bo removed from the courtroom. Chapter IV was concerned with excuses and arguments which witnesses used, i n an attempt to explain the actions which had. brought them to court. Although excuses and j u s t i f i c a t i o n s are an habitual response of an offender who wishes to avoid, sanction i n everyday l i f e . i t was shown that these common understandings which laymen bring to court are not always seen as relevent i n that setting. These responses of laymen to t h e i r appearance i n court were 156. contrasted w i t h sorae of the methods which lawyers use i n h e l p i n g t h e i r c l i e n t s and witnesses i o r t h e i r " s i d e " to present "proper demeanor"in court. I t was shown that lawyers s t r u c t u r e examinations and c r o s s -examinations to answer the i n g r e d i e n t s of the charge. Laymen were not always aware of these aspects of t h e i r evidence. In attempting to describe the s t r u c t u r e of i n t e r a c t i o n i n the courtroom, i n regard p a r t i c u l a r l y to the l a y witnesses appearing i n court, i t appeared that the s i t u a t i o n a l aspects of the s e t t i n g , the " f a t e f u l n e s s " i n Goffman's terms,^ of the witness' s i t u a t i o n were important f a c t o r s i n i n f l u e n c i n g how the witness presented and maintained h i s der.ianor. Most witnesses seemed to have an awareness of t h i s f a t e f u l n e s s although they were d i f f e r e n t i a l l y able to d e a l w i t h i t s i m p l i c a t i o n s . 157-FOOTNOTES: CHAPTER V 1. See Chapter I I 2„ See footnote 8. , Chapter II 3. See footnote 1 , Chapter I I I 158. BIBLIOGRAPHY AUSTIN, J.L. " A P l e a f o r Excuses''1 i n V.C. C h a p p e l l (Ed.) Ordinary Language, P r e n t i c e H a l l , Englewood C l i f f s , N.J. 1964. CICOUREL, Aaron V. Method, and Measurement i n S o c i o l o g y The Free ^ r a s s , New York, 1964. CICOUBEL, Aaron V. and. KITSUSE, John I Th; Educational FIRTH, J.R. D e c i s i o n Makers, Bobbs M e r r i l l , I n d i a n a p o l i s 1963. "On S o c i o l o g i c a l L i n g u i s t i c s " i n D e l l Hymes, (Ed,j Language i n C u l t u r e and S o c i e t y . Harper and "Row, New York, 1964. GLUCKMAN, Max The J u d i c i a l Process Among The B a r o t s i of Northern Rhodesia, Manchester U n i v e r s i t y Press, Manchester 1955• GARFINKEL, "Cond i t i o n s of S u c c e s s f u l Degradation Ceremonies". American J o u r n a l of So c i o l o g y . V o l . LXI, March I 9 5 6 " - p . p . 420 -424. GARFINKEL, H. Remarks on Ethnomethodology, Unpub1ished Paper, U n i v e r s i t y of C a l i f o r n i a , Los Angeles. GARFINKEL, H. S t u d i e s i n Ethnomethodology, P r e n t i c e H a l l Englewood C l i f f s , New Jersey 1967. GOFFMAN, GOFFMAN, GOFFMAN, Behaviour i n P u b l i c P l a c e s , Free P r e s s , Glencoe, I l l i n o i s 1963. Encounters, Bobbs ' M e r r i l l , I n d i a n a p o l i s , Indiana. 1961. I n t e r a c t i o n R i t u a l , Essays on Face to  Face Behaviour Doubleday and Company,, Garden C i t y , N.Y. 1967-159-GOFFMAN, S. The P r e s e n t a t i o n of S e l f i n Everyday L i f e , Doubleday and Conpany, Garden C i t y , New York, 1959. MILLS, C. Wright " S i t u a t e d A c t i o n s and V o c a b u l a r i e s of Motives", A n e r i c a n S o c i o l o g i c a l .Review, Vole 5. December 1940, p.p. 904 - 913. MUNKHAN, John H. The Technique of Advocacy, Stevens and Sons L t d . , London, 1951. PIKE, K.L. "Towards a Theory of the S t r u c t u r e of Hunan .Behaviour", i n D e l l Hynes (Ed.) Language i n C u l t u r e and S o c i e t y , Harper and" Ro-w, New York, 1964. POPPLE, E. C r i m i n a l Procedure Manual, C a r s w e l l ' s , Toronto, 195^ POTTER, 3. Supernanship, Penguin, Kamondsworth, Middlesex, 1958. SACHS, H. Methods . i n use .for the P r o d u c t i o n of a S o c i a l Order : a Method f o r Warrantably  I n f e r i n g Moral Character, Unpublished paper, U n i v e r s i t y of C a l i f o r n i a , Los • Angeles. SCHUTZ, A l f r e d , "The Strang e r " i n C o l l e c t e d Papers, V o l . I I , Maurice Natanson (Ed.) M a r t i n i u s N i g h o f f : The Hague, 1962. SUDNOW, David "Normal Crimes: S o c i o l o g i c a l Features of the Penal Code i n a P u b l i c Defender O f f i c e " S o c i a l Problems, V o l . X I I , No. 3, 1965. SUDNOW, David P a s s i n g Or,, the S o c i a l O r g a n i z a t i o n of Dvin.a, Pre?itice H a l l , Inc., Englewood. C l i f f s , N.J. 1967. l 6 o . TURNSPii Roy Problems i n the SiUd.y of Interaction, paper read at P a c i f i c S o c i o l o g i c a l Conference, Vancouver, May, 1966. WEINSTEIN, Jack B. ''The Law's Attempt to Obtain Useful Testimony'* Journal of Soc i a l Issues, Volume 13 No, 2, 1957-

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