"Arts, Faculty of"@en . "Sociology, Department of"@en . "DSpace"@en . "UBCV"@en . "Wilder, Gillian M."@en . "2011-07-19T23:12:31Z"@en . "1969"@en . "Master of Arts - MA"@en . "University of British Columbia"@en . "The concern of this thesis is to discover some of the basic principles which structure interaction in the courtroom. The data on which the analysis is based consists of material collected by observation in the Magistrates' Courts. Various \"rules\" which structure social interaction in general are examined as to their relevance to courtroom interaction and problems related to the presentation of self of lay participants in court.\r\nIt is first proposed that various of these \"rules\" are subject to violation in the courtroom. These violations facilitate the purposes of the court in that they make it possible for witnesses' arguments to be examined exhaustively. The effects of these violations on witnesses demeanor, considering the specific setting of the court, are described and analysed.\r\nFollowing this, the attributes of \u00E2\u0080\u009Cproper demeanor\u00E2\u0080\u009D, defined as demeanor acceptable to other\r\n\r\nparticipants, for lay witnesses in the courtroom are isolated and examples given of witnesses who failed to show these attributes during their appearances in court. An analysis is presented of the process of categorization of these witnesses as unfit interactants by professional courtroom participants, and the consequences of these categorizations for the witnesses. Those who failed to show \"proper demeanor\" are contrasted with witnesses whose appearances in court were more successful.\r\nFinally, the kinds of explanations and arguments which are put forward as part of the presentation of self by lay participants in court are examined with particular reference to whether or not they are seen as appropriate by lay and professional participants."@en . "https://circle.library.ubc.ca/rest/handle/2429/36147?expand=metadata"@en . "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^^^-^ . . 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\u00C2\u00BB 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 ;;\u00C2\u00BB 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 , ., \u00E2\u0080\u009E 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\"\u00E2\u0080\u009E 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\u00E2\u0080\u009E 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 \u00C2\u00AB.. (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\u00E2\u0080\u009E 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. 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"For non-commercial purposes only, such as research, private study and education. Additional conditions apply, see Terms of Use https://open.library.ubc.ca/terms_of_use."@en . "Graduate"@en . "The witness in court : problems of demeanor in the courtroom setting"@en . "Text"@en . "http://hdl.handle.net/2429/36147"@en .