The Language of Violence at Court
Abstract and Keywords
Because language is an essential tool for the expression of ideas, language is able to shape thought. The language of law – the methods of discursive action that courts utilize in understanding, mediating, and ruling on violence – is perceived to be the discourse of violence at court. Wittgenstein's (1958) principle that a rule cannot determine its own application can be demonstrated through the discursive practices of the courtroom, since there are always consequential practices corresponding to a certain rule. Many of the processes of courts and the language used in such settings, as asserted by Rock (1993), are intended to tame savage feelings, and probably even lessen the degrees of conflict. This chapter illustrates the important role of language in court and how this may also serve as a measure for mediation.
Language shapes thought by providing the tokens through which we express ideas. The discourse of violence at court is the language of law. We include in ‘language’ the modes of discursive action through which the courts understand, mediate and rule on violence. Courtroom discursive practices illustrate Wittgenstein's (1958) principle that a category or rule cannot determine its own application. Rules are always lodged within consequential practices. Thus, for example, ‘seeing what can count as “aggressive” … is both a contingent accomplishment and a locus for contestation, indeed a central site for legal argument’ (Goodwin and Goodwin 1997: 309). Rock (1993) argues that trials have an element of making a conflict safe; much of court procedure and language can be read as taming savage feelings. If language were more accessible and procedure less predetermined conflict would be more raw. It might also be more difficult for court professionals to manage and manipulate. Common law premises hold that oral testimony has its primacy because oral evidence is heard without mediation, is given on oath and in a formal setting, provides second-order information on witness demeanor enabling credibility to be gauged, and can be tested under cross-examination. These premises are not straightforwardly accepted even by lawyers. One concern is that ritual may work against the underlying assumption of a purely rational process; at the extreme it may function as a process of status degradation in which the defendant's identity is re-cast into a stereotyped offender role (Garpike 1956). Carlen (1974) documented how ritual can act to impede unfettered communication, quite apart from inspiring anxiety, embarrassment and a sense of being stage-managed.
Discourse also includes paralinguistic, a general rule-of-thumb being that 60% of conversational meaning arises from non-verbal cues (Birdwhistell 1970; Aaron et al. 1986). Jurors and court (p. 110 ) professionals greatly rely on witness demeanor, and lawyers draw on paralinguistic devices even if witnesses are unaware that inferences are being drawn from their own polemic self-presentation. Moreover, credibility is assessed quickly, within four minutes of First encounter according to Zuni and Zuni (1972), and jurors favor visual cues when verbal and visual cues conflict (Bundler and Grinder 1979). However, while witnesses' heads and eyes emit numerous cues these are the least accurate indicators of truth-telling. ‘Facial communication, particularly smiles, can be “put on” to mislead jurors’ (Pearson and Birch 1994: 181). Smiling has different meanings in different cultures (amongst Japanese it may indicate anger or embarrassment), eye contact makes for credibility in western cultures but is negatively evaluated by Afro-Caribbean's and Native Americans, witnesses can control gaze to lie while looking straight at questioners, and even amongst westerners, eye contact may be avoided from nervousness, fear or embarrassment rather than evasion. Witnesses not telling the truth manipulate objects more frequently, but so do anxious people (ibid. 182). Most research finds that lying witnesses shift position more often, but the requirement to face the jury while being questioned by counsel to one's side makes many witnesses emulate this, and our interviewees reported that this postural requirement was difficult to maintain.
Both prime modes of courtroom discourse, the monologue and the interrogation, are unusual in routine communication and likely to be resisted (Atkinson and Drew 1979). Defendants are likely to feel sidelined; even the custom of hearing anything defendants have to say before sentence is now delegated to counsel. Moreover, if oral testimony is elevated because demeanor gives insight into credibility, it is unfortunately not the case that coherence, articulateness and equable demeanor relate consistently to good powers of perception and recall. They do, however, relate to the ability to tell a good story (Bennett and Feldman 1981). Credence may be accorded on the basis of form rather than content. Aglow (1997: 246) observes bluntly that ‘it is the party that puts together the most credible narrative that often wins’. Lawyers, not witnesses, are responsible for constructing the story. Those who excuse the breaching of rules of cooperative interaction by emphasizing the special and consequential nature of courtroom interaction might ponder why an equally consequential interaction, medical (p. 111 ) consultation, no longer proceeds by interrogation and monologue but by patients being asked to tell the story of their problem in their own way.
From its Norman origins onward, legal language has been distinct from the vernacular. It is a form of professional closure important to the preservation of monopoly and power (Malakoff 1963: 101). Sociolinguistics finds that ‘the gap between legal discourse and everyday discourse is very wide. Present-day legal discourse retains its identity as a highly specialized and distinctive discourse type’ (Malay 1994: 13). The genre comprises several discourses: judicial discourse (the language of judicial decision); the language of legal documents; the discourse of legal consultation; and courtroom discourse, an ‘interactive language, peppered with ritual courtesies and modes of addresses’ (ibid.). Also a source of confusion for lay people is the building into legal criteria of subjective terms (‘willful’, ‘reasonable’, ‘negligent’) that make discretionary what seemed to be ‘rules’.
The same evidence may seem compelling or flimsy in the hands of a gifted or less skilled advocate. The strides made in understanding the role of legal discourse in sexual violence cases relate largely to documenting lawyers' tactics. This chapter examines tactics and discourse in physical violence cases, initially in accounts of assault and injury. Much courtroom discussion excludes lay participants; we go on to examine conferrals between judges and counsel. Judges vary considerably in how much they intervene and in styles of intervention. We examine how judges intervene, directing juries, moderating evidence-giving, and regulating the performance of lawyers. We then consider the experiences of the jury, who are object of much instruction and least permitted a speaking part.
Accounts of Assault and Injury
Early in proceedings courts receive an account of the violent incident—how it occurred and the injuries caused. Initial accounts are given by the prosecution, often as a self-contained story. The First element is a bare factual statement of charges. The second is an elaborated rendering including intent, motive and other points prosecutors consider important in what happened and why, as the following extract illustrates.
(p. 112 ) Prosecution: The defendant and the … brothers knew each other. They lived in the same street … The relevant background is this. All three had been users of [pub name] … The defendant had been conducting an affair with [name], a barmaid at the pub. The brothers disapproved. On that day all three were in the pub with [barmaid], [murder victim] asked [defendant] where his wife was. It was no innocent inquiry. An argument occurred between the two. The defendant said ‘I don't need him in my face; I am going to do him in’. The bar staff intervened, the defendant and [second victim] shook hands. That should have been the end of that. [Murder victim] left his jumper in the bar and went back to get it with [second victim]. On return the defendant was in his van, stationary in the road, he went into his house and made the appalling decision to get a knife that ended [murder victim's] life. [Second victim's] recollection of events is as follows. The defendant was against his car arguing with [murder victim], and the defendant saying ‘I am going to sort out our problems later’ and [second victim] heard his brother say ‘Are you going to use that knife on me?’ and that is when [second victim] saw the knife. The knife having been used, [murder victim] collapsed and died on the pavement, an ambulance was called but there was nothing the crew could do for him. The police arrived within minutes and the defendant admitted he caused the injury that killed him. (Adams trial.)
The factual first element stating the charges sets a tone maintained in the second. Abstract constructions (‘the knife having been used’), and emphasis on the ostensible key features, suggest a businesslike approach that avoids contentious inferences. The only emotive content is in the verbatim quotes. This rendering of the account is designed to lend it an authoritative air and give the defence minimum leverage in unpicking its elements. The defence task is to dismantle a story that trial conventions enable to be told as a self-contained whole (a device that can divert attention from weak components). The account of the incident and injury sets the scene for the presentation of evidence and giving of testimony. To the extent that the judge permits, the defence often seeks to ‘lead’ defendants (ask questions that presuppose their answer) through the production of alternative accounts. Despite recent changes, the burden of proof remains higher for the prosecution, and the authoritative style helps address the defence advantage.
The claim to an authoritative account implicit in the initial bare and ‘dispassionate’ statement is reflected at the end of the trial. Having presented as dispassionate, prosecuting counsel reclaim that mantle in closing statements, but drawing on selected (p. 113 ) evidence and testimony. In this trial the prosecutor initially focused on what had emerged bearing on the defendant's intent: the imputation relating to his affair with the barmaid, the significance of his blocking with his van the road the brothers would have to use, the implausibility of his claim that he feared that the brothers would force entry to his home. Certain testimony impugned the prosecution case; counsel suggested the jury would have to weigh it for itself and closed this point by tying the discrepant testimony to the witness with most cause to offer testimony partial to the defence, the defendant's wife. A foil to fallible and motivated human testimony was then presented, in the form of physical evidence, specifically the defendant's injuries, presented as too minor for an attack in which someone felt self-defence was only possible by repeatedly using a knife. Reference to the knife was then used to contradict the suggestion that it was tucked into the defendant's clothing, being ‘held in reserve’. The implication was that the knife featured in the defendant's actions from the moment of his con-formation with the brothers. The number of wounds, depth of the fatal and next blow, and the force necessarily involved, were used to rebut accidental impaling and the more compelling self-defence case. The prosecution reminded jurors of the legal grounds for self-defence, both in respect of proportionate force and prior intent (the knife was taken from a kitchen drawer before the brothers returned). Counsel then sketched the way that the jury's inferences about the different degrees of intent brought into frame different charges, done in the context of dismissing mitigation. Thus, in closing, factual circumstances are emphasized and exploited to confirm the prosecution case as measured, dispassionate and authoritative, however aggressive and transparently partial their performance between the opening and closing speeches.
Of course, the prosecution's is only one account. Violence is often between parties known to one another, and may be an episode in a series of frictions. This is one reason that efforts to suggest that witnesses are disinterested or otherwise are important tactics. A stock-in-trade defence against prosecution witnesses is to question whether they directly witnessed the defendant's actions. Direct witnessing and freedom from motivation help establish credibility. So does convergence of accounts on particular facts, such as the words used by victims in reporting what has happened. In an evening stabbing, prime witnesses were a couple and their (p. 114 ) babysitter in the adjoining house. ‘Witness (babysitter): [Victim] came running in with his right hand on his neck, left hand down below. Prosecution: Covering his genitals? Witness: Yes. Prosecution: Did he say anything? Witness: Yes, he said … “I think she's done it this time, I think this is the end” ’ (Childs trial). The babysitter's male customer used similar words. ‘Witness: [Defendant] was shouting out the door … “Go on little dick, fuck off”. The next thing I knew [victim] was in our house, blood was all the way down his chest, on his legs and he was naked … Prosecution: Did he say anything to you? Witness: He said “she's done me this time, [name], help!” ’ (ibid.). The babysitter's female customer featured similar words in describing the victim panicking. ‘[H]e said … “[Defendant's] really done it this time”.’ Convergence on the ‘done it this time’ wording was important to the prosecution because the perpetrator claimed the wound was caused in self-defence.
Where violence is an episode in an ongoing confliction relationship it may be difficult to establish who is the author of the incident. Criteria of directness of witnessing and convergence of statements are akin to a further consideration, the exact implication of a witness's wording. Natural conversation proceeds ungrammatically, uses euphemisms, leaves some things unsaid because they are ‘obvious’, draws on stock phrases which may not be directly applicable to current circumstances, and employs various other devices giving it an informal and defensible character. Such qualities may lead to challenge in court but so too can suspiciously precise statements.
Defence: A few moments ago you used an interesting phrase. You said ‘he raised his hand in an attempt to push’. Did someone tell you to say this? Witness: No … Defence: If you were there, tell the jury where his hands were aiming for. Witness: Umm (long pause). The upper chest area. Defence: Where exactly? Witness: I don't know, just upper chest. Defence: Mr [witness], you weren't there were you? Witness: I was there. (Maguire trial.)
It goes badly for the witness following the defence suggestion that he has been fed words. After attempting to rattle him by a direct accusation of lying the defence asked ‘what is your first recollection of the incident?’ and the witness said ‘when [victim] had [defendant] by the neck’. This contradicted his earlier statement of seeing the ‘attempt to push’, and after several exchanges the defence delivered (p. 115 ) ‘you are making this up as you go along, aren't you?’ (Maguire trial). The witness was effectively discredited, the thin end of the wedge having been his unique testimony about the push attempt, an action implying a purely defensive role by the victim, this giving scope for doubt over whether he saw what he claimed to have seen, culminating in an undermining shift in his account of when he had arrived. Ultimately the defence sustained a case that the ‘glassing’ injury was the outcome of a brawl in which the victim and defendant's responsibility was impossible to disentangle.
In contrast to ordinary witnesses, it is assumed that expert witnesses will choose words carefully and offer precise accounts. However, the cautious, precise tone of medical testimony takes more effort to cast as supporting one side or another. In this instance the prosecution resorts to quite gross attempts to attach a doctor's statement to a ‘story’ whose implication the jury can see.
The terse, factual responses of the doctor require teasing-out for the jury to draw conclusions, so that the account of injury is co-constructed by lawyer and doctor, with the lawyer first taking the doctor back to give a reason for her not accepting the parents' account, then offering a homely scenario for the injury context, and then asking a direct question as to whether, as the defendants maintained, one could remain in ignorance that one was causing a baby this kind of injury.
Prosecution: Have you any way of knowing how long a baby would cry from a fracture, say, of the ribs? Witness: No … Prosecution: What type of cry is associated with colic? Witness: Loud, high-pitched crying. Prosecution: The sort that might drive a parent frantic. Witness: Yes. Prosecution: Say the mother is in bed, in a one-bedroom flat, mother is exhausted by the crying from colic. Dad gets up, squeezes ribs through temper, frustration or whatever. Would mum be aware of the change of cry? Witness: It depends on so many things … Prosecution: I suggest that a parent would know that there is something wrong with their child if they are repeatedly breaking the ribs. What do you say to that? Witness: At the time, yes. (Taylor/Loams trial.)
Despite their authoritative tone, initial accounts of incidents are artful constructions. The artifice is apparent when we observe preliminary discussions between counsel and judge mulling over what charges to try, chewing at the implications of each, and at how best to fit the legal framework to the messy circumstances of the (p. 116 ) incident. Despite their artifice, initial accounts give the prosecution the chance to present a controlled version of events that even highly poised parties may be unable to offer. We have only to look to the initial testimony by victims to see contrasts with the tenor of prosecutors' accounts. Here an upper middle class ABH victim describes how his son-in-law attacked him. ‘He came and stood close, he then put his head on my head, like … an unfulfilled head butt. He is 6′ 1″ and I am 5′ 9″. I blocked him from invading my space by putting my hands on his chest and stepping back. He said “you are pathetic” and repeated it’ (Woodward trial). It is an adequate, even expressive, statement, with the detail of the disparate height of the protagonists and the image of an ‘unfulfilled head butt’. Unfortunately it included a detail absent from the victim's police statement, the words supposedly said by the defendant, which defence counsel exploited. Rattled by the lengthy wrangle this inspired between counsels, the victim's powers of expression deserted him. ‘Defence: Let's move on to the bruising you say you received. How would you describe them? Victim: Like bruises’. In the ensuing exchange the victim is made to describe the size of the bruises, his estimate then being undermined when the defence reads from a doctor's statement. The description of circumstances by the victim's wife hardly helped, by conveying an image of hubbub so general that one might infer these were circumstances whose instigator no jury could determine: ‘the children were all running around screaming and crying and [defendant] was screaming and shouting and frothing at the mouth. She demonstrates how [defendant] was hitting her husband (“flailing fists”)’ (Woodward trial). Problems of leakage of detail, unedifying description, and exaggeration, are avoided by reliance on counsel giving the initial account.
When defendants give initial testimony their account of incidents tends to a process description in narrative style. Counsel's ‘leading’ also adheres to the contours of the ‘story’ but selects those elements that support their case. The ‘naturalness’ of the storytelling form can be reassuring for defendants who have problems with leading. The following initial account is by an Afro-Carribean defendant who subsequently had major difficulty responding to cross-examination and even supportive interventions by his own counsel. Giving his initial statement in storytelling mode he is poised and confident. ‘Defendant: I was driving along, singing happily and then I heard (p. 117 ) shouting and swearing. Then I saw two guys coming towards me in the rear view mirror … saying “who do you fucking think you are, do you think you own the road?” [continues]’ (Lane trial). As well as demonstrating being pulled from his car the defendant made competent unprompted use of physical exhibits (‘uses photos to show direction and where he was when he saw the bigger brother, with a hammer, coming towards him’) and gave a plausible account of how he came to have a craft knife in his car (‘My girlfriend asked me to remove the lino in her kitchen’). Discouraging narrative testimony is at least in part because it denies counsel the advantage of giving the initial account, which is that a rendering can be made without challenge or interruption.
Intimate relationships are the stuff of many violent incidents and jurors are likely to regard themselves as being as expert in them as anyone else. Important in rendering an account in a way that others will regard as plausible is offering motives and actions consistent with what most others might do. For example, men comfortable in a milieu in which violence is common may nevertheless lay claim to a reaction driven by fear when facing a weapon. ‘Decent citizen’ reactions heighten the credibility of witnesses. ‘Defence: What sort of punches were they? Witness: Slow, measured, precise and vicious. I thought he was going to get killed. (Saw big ‘victim’ waving builder's mallet and his face was “like thunder” ’ (Lane trial). Counsel often utter claims based on parties doing what any reasonable person would do and make frequent appeals to ‘common sense’, such appeals being a standard element of storytelling (Rock 1993: 76–85). Here the prosecution adopts an authoritative tone augmented by asking jurors to use common sense to decide whether defence claims are credible. ‘The four witnesses all say it was a clenched fist. I do not trespass into your role as judges of fact. Let's look at his injuries. He had a laceration of the top lip approximately 1.5 cm long and an associated injury to the gum. Use your common sense, whether this was done due to a push or a punch’ (Booth trial). Counsel then seeks to skirt disparities in eyewitness accounts with ‘I don't know if you have ever been involved in a road traffic accident but everybody has a different take on what occurred’. In his own summing-up, defence counsel placed himself in the mental set of the jury, and majored on identification with the ordinary person.
Practiced dramatic devices also feature. ‘When the ambulance men arrived they found a piece of (human) tissue … on the floor and put it on ice to preserve it. (Long pause, giving jury time to absorb counsel's words) … The Crown believes it was an intentional injury’ (Searle trial).
(p. 118 ) Maybe the next time you are in a pub and a group of nameless men attack—it could have been any one of us. Why? Because [defendant] made the mistake of arguing … and demanding his money back. Petty, yes, but wouldn't you? It could have been you who had the audacity to complain … (Counsel asks jury to imagine how ‘thugs invading our body space’ would make anyone feel) … [W] couldn't you be angry, if all that had happened to you?. (Ibid.)
It may not be apparent to witnesses why parts of their testimony pass unremarked and others lead to close questioning and legal conferrals. Thus, the victim's testimony in an assault and robbery case began by eliciting his route to the crime scene, knowledge of its reputation, and the sequence of events, proceeding for 34 question-and-answer exchanges without comment or interjection (the questions simply being ‘say more’ facilitators) until he referred to the source of the words ‘I want your money’ and ‘give me your money or I'll cut you’ (Carr/Macdonald trial). The judge then had him precede phrase-by-phrase. This effort was to do with establishing if both co-defendants had demanded money. Accounts of injury elicited from victims by counsel vary considerably in degrees of elaboration but share a focus on the circumstances of the incident rather than the nature of the injury. This instance was one of the few where there was no prior relationship between protagonists and the victim was not part of a milieu inured to violence; he was a 15-year-old amateur athlete and the attack was by strangers who emptied his wallet and took his mobile telephone, then followed and beat him. The prosecution played on the random violence angle and effect on his sporting career. ‘Prosecution: What injuries did you receive? Victim: Bruising and swelling on my right side of my face and fracture. Prosecution: Did you play any sport? Victim: I swam for a club. Prosecution: Did you wear goggles? Victim: Yes … Prosecution: Did it interfere with your training? Victim: Yes. Prosecution: Did it interfere with the team? Victim: Yes’ (Hogan trial). This was the clearest account of the consequences of injury. As Aglow (1997: 1) observes, ‘The law of evidence is not about determining (p. 119 ) the consequences of facts but about establishing those facts’. While little was made in court of the consequences of an unprovoked pub glassing causing extensive facial scarring and leaving glass permanently embedded in an eye, the victim told a reporter‘I have flashbacks and do not go out on my own at night. This has totally changed my outlook on life. The glass was millimeters away from my jugular and I could have been killed’ (supplementary dataset; GBH with intent). Other victim accounts of injury included one where the impression was given that the resulting scar simply assisted the victim's reputation as a local ‘hard man’ (Lane trial).
While pausing to ask a domestic violence victim if it had hurt when she was hit with a machete handle, another prosecutor was more concerned to get a full catalogue of events than their effects. ‘Prosecution: Did [defendant] ever make contact with you with other parts of the machete? Victim: Yes. I had my hand up to protect my face and he cut my hand, my thumb, and my wrist. Prosecution: Did he do anything else with the machete? Victim: Yes, he slammed it into the bed’ (Thomas trial). This may have been because the primary charge was threats to kill and more impact was to be had from the frightening nature of the events (the victim's partner fetched a pitchfork and barricaded the house threatening to kill her). Injuries are noted but consequences not explored. ‘Prosecution: Do you have any injuries resulting from this attack? Victim: Yes. Prosecution: Where? Victim: All over. I had bruises on my shins, face and cuts on my hand. Some of my bruises were about the size of … half a £5 note (produces note from pocket and folds it). Prosecution: Did you respond to the attack?’ (Woodward trial). From 2001, the Victim Personal Statement scheme has offered victims formal opportunity to say what effect the crime had on them but such statements were given in few observed cases. While the evidence of victims about the nature of injury may seem unimpeachable, this is not so: some say little about injury, only the circumstances, others are unclear precisely how injury occurred. Testimony about the nature of injury is taken as briefly as it is given. In the rendering of these accounts there is little discussion of the impact of violence. While this may partly relate to victims' feelings, both the lawyers' agenda and the desire to avoid delay encourage this approach.
(p. 120 ) Lawyers' Tactics
The professions—classically including the law—have been treated as mechanisms of social closure, bodies of practitioners granted substantial self-regulation on the basis of their special expertise (Macdonald 1995). Both codes of conduct, of which the historical model is the Hippocratic Oath, and the idea that professional decisions are made on grounds only a fellow professional can entirely comprehend, have been grounds on which the professions established substantial autonomy. In recent years government, responding to public concerns, has sought to make the professions more accountable. Recruitment has had to respond to employment law founded on anti-discriminatory and equal opportunities principles. Legal aid schemes and a more acute accounting of the running costs of the criminal justice system have made lawyers' remuneration an issue. The victims' movement and high-profile miscarriages of justice have been amongst the forces pressing the legal profession not only to ‘open up’ but to change. Professional legal education has developed against such a context, but lawyers' working practices in court continue mainly to be learnt on the job. The assumption is that the tools of the trade comprise knowledge of laws, but the tricks of the trade come from practice.
A criminal trial is a search for proof, not a search for truth (Michael Toolkit, BBC Radio Four, 6 April 2004.)
It might be suggested, then, that the combination of a profession with a long history of effectively insulating itself from oversight and with a reliance on experience and practice to nurture professional skills by trial and error, at the expense of those receiving the ‘error’ part of the bargain, means that a lawyer's tactical sense is as much a matter of an individual practitioner's personality and competences as anything more systematic or coherent, as suggested by the earlier discussion of lawyers' reliance on demeanor to detect lying. When Weber critiqued the different quality of justice available to different social classes he contrasted decision-making based on the careful application of known legal rules and procedures with that based on subjective reaction to the individual case (Cottrell 1989). He dismissed the latter as ‘Khaki justice’ but the lawyer's focus often remains the subjective dimensions of the case rather than the axioms of law.
The court professional's primary but implicit goal is to establish control. Auxiliaries such as ushers and security guards are chiefly (p. 121 ) responsible for the control of the body, ensuring witnesses are in the right place, rise when the judge enters court, and are positioned to handle or view evidence. VS and WS workers apply a form of control as buffers between the feelings of victims and witnesses and the part the court calls on them to play. During the trial itself, counsel and judge must establish their control over the witness's testimony. In elementary form this is simply alerting witnesses to communicational requirements (‘Prosecution: Please keep your voice up and direct your answers to the jury’; Booth trial). The set stages of trials—opening speeches, evidence-in-chief, cross-examination and rebuttal, closing speeches—are to varying degrees scripted by convention, and provide varying scope for tactical work. An opening speech provides opportunity to lay out a case's main features, and is spent directly addressing the jury. The jury will be told what its role is and will be advised what points are agreed between the sides. The tone is generally plain, with lawyers mindful of making a good start with accessible language, although there is a view that some speak too long. Opening speeches by the defence are rarer. Prosecution counsel has a right to reply at the close of defence evidence but before any closing speech. The defence has the right to the last word (bar the judge's summing-up). All parties have the opportunity to call and examine witnesses favorable to their case (the examination-in-chief) and to test the other side's evidence by questioning their witnesses (cross-examination). The prosecution is obliged to call all witnesses able to offer essential testimony and who are capable of belief; the defence may call what witnesses they choose and in whatever order, but if the defendant testifies it must be before other defence witnesses. All evidence must be put when presenting counsels' respective cases; opportunity to call further witnesses or evidence is limited.
Thus, the best guide to a lawyer's tactics is neither personality nor acculturated practices but the adversarial brief and trial format that the justice system hands them. A lawyer's tactics can best be understood by their interest at hand. To counsel, witnesses are objects of work who must be ‘constructed’ (Rock 1993: 131). A lawyer faced with a nervous but essential witness will more or less plausibly display empathy, not because it is the human thing to do or good practice imparted in training, but because it is one effective way to get the witness talking, to be discarded in favor of another if it fails. ‘Prosecution: In the dock is [defendant on (p. 122 ) murder charges], did you know him? Witness, surviving victim: Yes (mumbles). Prosecution: It is a strange place, where you are. Can I ask you to speak a bit more slowly, a bit more clearly’ (Adams trial). Orientation to the ‘strangeness’ of the situation displays that counsel can ‘think himself’ into the witness's perspective, while behind the declaration of strangeness is the implicit message that, to counsel, the setting is not strange but his familiar working environment. We noted that from security guards and ushers right up to counsel and judges there was an emphasis that the court was not so very alien, a number of respondents referring to members of their practitioner group ‘not having two heads’ and the like. A working group that feels it must regularly declare its ordinariness is a working group that knows its work is not at all ordinary in the experience of those coming before it.
Professionals characterize such preliminaries as necessary to put lay participants at ease. Counsel signal that they can relate to events as do lay participants, but such performance is directed at establishing that counsel deal in common sense, credible accounts. A tactical alternative to emphasizing ordinariness is to project awareness that what professionals do is puzzling and that lay people should not trouble over the mystery but simply comply. ‘Defence: [I]t is perfectly possible to pass the van by mounting the pavement. Is that correct? Victim: No. Defence: I am not dealing with events of [date of incident] yet. Just humor me (gets witness to agree it is possible to pass van)’ (Adams trial). The ‘humor me’ device functions as an invitation to accept that the lawyer has reason to ask the witness a question the witness regards as irrelevant without needing to explain the reason. Perhaps the most fundamental tool in counsel's armory is the oath that witnesses swear. Alongside this solemn remnant of more credulous times stands regular reference to ‘truth’. On occasion a defendant or witness will use it to validate their testimony; ‘Prosecution: The fact is this allegation against [victim] is false. Defendant (resentfully): I've been sworn to tell the truth’ (Carr/Macdonald trial). Another defendant explained contradictions with ‘you have to remember I am under oath in this box’ whereas he ‘lied’ in his statement (supplementary dataset, affray).
Legally, counsel may challenge hostile witnesses that the facts retailed to the court are inaccurate and their perception and recall is faulty (where counsel can put leading questions and suggest a contradictory account); that witnesses have previously contradicted (p. 123 ) themselves (where counsel may put previous inconsistent statements to witnesses); and that their general character is such that they should not be believed (either generally discreditable or involve specific criminal convictions, even those ‘spent’ under rehabilitation legislation). Behind a lawyer's tactics is another thing than the adversarial brief and interact ional skills. This is the information available from witness statements and the client's instructions. In this cross-examination the witness statement is used to confirm the picture; the ‘clincher’ is the appearance in the statement of the exact words the witness denies and that counsel has used, knowing they are in the statement. ‘Defence: He was pretty wound up? Victim: No, he was OK in the car … Defence: OK, let's read your witness statement. (Defence reads passage saying “we walked through the garden into the bar and he was still pretty wound up”) … Defence: Was he wound up? Victim: Yes’ (Adams trial). Counsel repeated ‘he was wound up’ to ensure the jury heard the tie-in. That the witness felt caught out was apparent a few exchanges later, when he met the defence's question whether he had gone to ‘stop a fight’ with a resigned ‘I said it so there you go’. Counsel's ‘misunderstanding’ of an intervention by the judge can also be treated as tactical. ‘Defence: Can I refer back to your statement, page 9, your second statement. You state here that [defendant's wife] came out with [defendant] and both were trying to calm [victim] down’. The judge prompts counsel to put the defendant's statement in context, and counsel says he will do so. ‘(To jury:) This is a statement made a few days after first statement’ (Adams trial). It is clear from the full transcript that the ‘context’ the judge had in mind was not that the statement was the witness's second one but rather the context in which the actions described in the statement were embedded, but it does not suit the defence's purpose to take it this way.
Lawyers exploit ‘gifts’ such as witnesses who self-incriminate, feeble opposing counsel, or judges whose sense of thoroughness enables a favorable point to be rammed home. Defence counsel suggested that a witness had been ‘punching the defendant while he was on the floor’. Helpfully the judge excused the jury to tell defence counsel, ‘I have an anxiety—I have no idea what the defendant will say but when questioned by the police the defendant said that when he was lying on the floor [victims] were punching and kicking him. It is only right that it is put to the witness and (p. 124 ) there has been no suggestion of it by you so far’, with the response ‘Your Honor, you are right. It was on the opposite page to my notes and I apologies’ (Adams trial). Immediately after the jury returned the defence suggests the murder victim and the witness kicked the defendant. The witness had already insisted, in answering the ‘punching’ question, that ‘it never happened like that’, so the judge's intervention offered a chance to revive the point. Also to be exploited is any opportunity to embellish an account that falls short of one's purposes. ‘Defence: And then they attacked him? Witness: I couldn't say that for sure, there were fists flying. Defence: I understand that, your son described it as a brawl. Witness: Yes’ (ibid.). Counsel's interest at hand is to dilute his client's role as aggressor in the incident and he meets the witness's initial refusal to put what he saw that way with a term, ‘brawl’, that portrays equally motivated engagement, along with reference to another witness that the present witness might be disinclined to contradict.
That there were repeated stabbings was an undisputed feature of the murder case. Against this the defence sought to present the circumstances in such a way that jurors could place themselves in them.
The defence goes to lengths to empathize with the victims, taking care also to put words in their mouths (‘[Surviving victim] was doing his duty to “back up and support” his brother … And I am sure [surviving victim] will forgive me for saying this but I am sure he bitterly regrets that now’). The lawyer then concentrated on the murder victim's role in provoking the defendant, the latter's state of panic and attempts to calm the situation, culminating in a device that may have thrown some jurors. ‘Let me stop you. Twenty to eight in that pub that night, let's take a vote, ladies and gentlemen. Who was the aggressor that night? Any votes for [defendant]? No? All twelve votes for [victim]. [Victim] was the aggressor, there is no dispute’. The remainder of a passionately delivered closing speech (p. 125 ) was spent reminding the jury of the victim's convictions for violence, noting that the surviving brother's concession that he had accompanied his late brother looking for the defendant so as to stop a fight contradicted his police statement that they were looking for a lost sweater, emphasizing that the defendant called an ambulance while ‘shaking, upset and crying’, and reiterating the claim to self-defence. This closing speech was much longer than the prosecution's and involved more intricate argument, perhaps to neutralize the ‘facts’ revealed by the fatal wounds.
What happened was a tragedy. It was a tragedy for the [victim's] family. It was a tragedy for [victim's partner] … And it was a tragedy for [defendant] and his family. They all wish they could go back and change the events of that evening. It will be with the defendant and his family for the rest of their lives. Our submission is simply the defendant is not guilty. He did what he genuinely believed was the right thing to do to protect himself—defend himself. (Adams trial.)
Despite the prominence in media portrayals of the ‘leading question’ as a cause for objection by the opposition or judge, leading is a sanctioned and regular practice. It can take the form of a terse ‘Q and A’ format, to efficiently take evidence from a witness, but is not confined to descriptive testimony. Counsel cannot anticipate how forthcoming or incautious given witnesses will be on the day, so the brief question format, each confined to a discrete detail, and is employed to test the witness for these qualities. Here the witness proves guarded, with the agenda of minimizing what he knows but, where possible, downplaying the part played by his friends.
It takes several exchanges before counsel senses the jury will have heard enough to be suspicious and can thus safely make plain the conclusion he wants the jury to draw, set up by the reference to truth telling. He then turns squarely to the witness's own part. ‘You say [defendant] was bundled out by nine or ten people who wouldn't listen to him? Witness: Yes. Defence: Why did you follow him out? Witness: Just curiosity. Defence: To see a fight? Witness: No. Defence: To join in? Witness: No’. There is then a brief reminder of the general case, the implausibility of a lone individual initiating an attack on ten burly men. ‘Defence: You said [defendant] was being pushed and shoved out of the pub? Witness: Yes. Defence: They (p. 126 ) were all sharing the same enthusiasm to eject [defendant]? Witness: No. They were trying to prevent trouble. Defence: But you said he hadn't moved from his seat!’ This classic ‘catch out’ using witness's previous statement can either be met with limp assent that leaves the contradiction hanging, a hasty revision of previous testimony, or recourse to a faulty memory that will undermine all the witness's testimony. The witness selects the first, saying simply ‘yes’. Counsel having weakened the witness, questioning moves to the role of his associates.
Defence: Who have you been talking to about this? Witness: Umm, just the people who were there. Defence: Who told you that [defendant] was escorted from the pub? Witness: I can't recall … Defence: Have you discussed it with the licensee? Witness: Not sure … Defence: Do you recall [fellow witness] ejecting [defendant]? Witness: No. Defence: Was he part of a group? Witness: No … Defence: So you would say that [defendant] just became angry over nothing? Witness: No. Defence: Did you come here to tell the truth? Witness: Yes. Defence: Or are you here to support or protect the people you know from the [pub]? Witness: No. (Booth trial.)
At the close of another witness's testimony the defence case was reinforced by the choice of a single word in the witness's police statement. ‘Defence: You refer to them in your statement as “friends”. Witness: I only met them that evening. Defence: So why call them friends? Witness: I didn't know what else to call them. Defence: Now about the acquaintances//Witness: It's a mistake. Defence: I put it to you that you are protecting your friends. Witness: No’ (Booth trial). Addressing a self-contradiction by claiming a ‘mistake’ or memory lapse provides an opening for determined exploitation; here the witness weakened while questioned about having seen the defendant's clenched fist. ‘Witness: As far as I can recall it was a fist’. The witness's reference to ‘as far as I can recall’ is a qualifier signaling defeasibility, and was reinforced in his next utterance by a similar phrase, signaling his concession that his evidence was compromised.
One of the simplest tactics is repetition. This device can be inflammatory in mundane interaction (the archetype being children repeating unfulfilled requests) and requires patient self-discipline to cope with in court.
(p. 127 ) The repetition of a stiffly denied allegation is not just a matter of reinforcing an allegation but may expose how witnesses behave under pressure of a kind related to that which they encountered in the incident itself. Counsel may have felt by goading the defendant he would act in a way from which the jury could draw conclusions. Despite a respondent's steady denial of innuendo, the trial format allows the questioner to continue when normal interaction is highly sensitive to demurral and interact ants will generally work immediately to address it before resuming the main discussion. Indeed, even one demurral can halt the broader discussion and certainly one with a string of disagreement from one party will lead to a complete cessation and most likely some form of dramatic outcome.
Prosecution: Look at sentence 6, page 5–35 of the interview. It says ‘I saw [victim], I saw red’, when did you see red? Defendant: I was getting angry. Prosecution: Angry enough to punch? Defendant: No. Prosecution: So you saw red as in getting angry but not enough to fight someone? Defendant: Yes. Prosecution: So you may have punched [victim]. Defendant: No. Prosecution: So you may have punched someone but not [victim]? Defendant: [Victim] followed me, tried to get my phone and I pushed him and he went down. I didn't lash out or attack him (he refutes this again and again). He was in front of me and I felt threatened. Prosecution: Moments ago you told the court that he wasn't aggressive towards you. Defendant: Yes. Prosecution: You had no reason to punch him. Defendant: No, I didn't punch him. I pushed him! (Booth trial.)
The circumstances of this case were heavily police-related: the alleged victim was a Special Constable; there was a credible accusation of police maltreatment inspired by racial antagonism, and significant inconsistencies in police evidence. The defence sought particularly to exploit the latter.
The defence accounts for a police action putting the defendant in a bad light (the showing of the warrant card), highlights the inconsistency over which officer was driving (a convenient ambiguity for the police, as whoever was not driving would be the officer free to mistreat the defendant), trumps police notes introduced by the prosecution with the record of the emergency call, and reminds the jury that the alleged victim not only hit the defendant but had implied to him that the others present were police officers (they were ordinary pub customers).
Defence: The warrant card was only shown to [defendant] as he was the only one trying to contact the police. Why didn't the police officers hear his call for help come over the radio? Well, apparently both officers were driving the same car at the same time! I am not saying that the arrest wasn't lawful but I am saying that wouldn't you be angry … The question is, what was in the defendant's mind when he struck [victim]? … What does he say [in police recording of 999 call]? How does he describe [victim]? He said ‘I have a [town] officer and one of his associates has hit me'. Associates—it is an interesting choice, isn't it. You will see he is reporting [victim] as well as the group’. (Booth trial.)
Trials are not, of course, subject to regular etiquette. Virtually any characteristic of the principal parties is fair game, body language is exploited, and innuendo is freely indulged despite judges' interventions. In the following extract from an ABH/sexual assault (p. 128 ) the defendant also had been assaulted by the victim's mother, not due to the sexual assault but the mother's discovery of the defendant's affair with a local Madame. The sexual element involved inappropriate touching when the victim was a young teenager; now twenty, she contacted police on learning that the man was working with children. Defence counsel uses long, staged pauses and the victim's status as a university student as ironic devices.
Defence (looks at victim's statement for some time): You are an intelligent young lady, wouldn't you say. Victim: Yes. Defence: And did he say anything that made you leave his hand there (‘on’ her vagina) for one minute? Victim: He asked me ‘how does it feel?’ Defence: Would the honest truth be it didn't happen at all? Victim: No. Defence: I am going to have to press you—how did ten seconds turn to two minutes? Victim: I should have said I am not sure. (Hare trial.)
A key part of the prosecution case was a letter by the defendant, given to the mother before their estrangement, in which he allegedly apologized for the sexual touching. However, it was missing (said to be ‘stolen’), and the victim had not read the letter herself but had been read it by her mother.
Defence: Whose idea was it to call the police? Victim: Mine. I said I didn't want anyone else to suffer. My mother was bitter over what happened to me, not over the break-up. Defence: Well, we'll agree she was bitter but not what about. ‘I am sorry about ruining your innocence’ was not in the let-tar. You could be wrong, couldn't you? Victim: Yes. Defence: You didn't see it, did you? Victim: No … Defence (referring to friend's diary in which she referred to victim's stepfather's conduct): [Friend], did she write anything down in your presence? Victim: No. (Hare trial.)
The defence case is that this is either a naive or a conniving victim. Such imputations led the judge to intervene in opening argument but not during questioning of the victim. The difference is that, in questioning, witnesses can speak for themselves; objections by opposing counsel are more freely permitted, and counsel are themselves engaged in keeping witnesses to the point.
Clearly this is a forthcoming witness and counsel's business is not to draw her out but to keep her to the point, for example, by stopping her describing the manner of the touching in favor of specifying dates. This secured expansive responses and detailed narrative.
Prosecution: Was he permitted to go into [victim's] bedroom? Witness [mother]: In my experience in life//Prosecution: Never mind your experience was he permitted? Witness: No. Prosecution: Did you ever see him in there? Witness: Once, and I thought ‘Gosh, he is disregarding me’. I had a little more weight on and beautifully built. At this time I observed the way he touched her, sliding his arms under her breast … [Counsel queries time (p. 129 ) period] Witness: It was very skillfully done, in the beginning just hugs, then I started to notice a change. The birthday card where he referred to [victim] as ‘the sizzling [name]’, which I thought was inappropriate. I remember saying to [defendant] ‘don't touch her breasts’. It was a Sunday morning in bed with [defendant]. [Victim] came in her nightdress and was still sleepy. Prosecution: Why did you say that? It is very curious. Witness: I was becoming uncomfortable. [Defendant] is very sexually active, very partial to a nice pair of breasts and my daughter has a very beautiful pair of breasts. (Hare trial.)
While lawyers' questioning is generally motivated by case-making, their performance is often joined by the judge, particularly in initial descriptive accounts. In the prison fight between female inmates, there was an extended instance arising from confusion whether ‘all over’ meant the end of a relationship, the victim's losing the fight, the fight's location, or the extent of her injuries.
The judge elicited the victim's injuries, testimony that she could not say whether one or two assailants had caused them, and pursued how many mugs were used as weapons. Both judge and lawyer pursued the same questions and questioning style in a performance that was effectively collaborative. Cooperative interludes challenge the conventional understanding of trials as adversarial performances. A better understanding might be that of a committee meeting where members have interests that periodically intrude but much discussion and decision-making is consensual. In such a framework, lay participants may feel they are marginal spectators or even subjects of collusion between court professionals. The procedure of leading witnesses particularly suggests a managed, compromised form of the image of combat conveyed by adversarial premises.
Defence: And she punched you, and then what? Victim: It was all over, they attacked me. Judge: I am sorry, what did you say? Victim: They both started to attack me. Defence: Where? Victim: All over. Defence: And what sort of blows? Victim: They was hard punches. Defence: And what did you do? Victim: I tried to punch and fight back … Judge: How? Victim: By punching and kicking her. Judge: And what was she doing? Victim: Fighting back. Judge: How? Victim: By punching and kicking. (Henley trial.)
(p. 130 ) The identity of the individual causing the injury on the indictment is often a consideration in multi-party incidents, presenting victims with problems where their injuries and/or attempts to fend off blows make difficult a clear recall of each blow. Here the young athlete set upon by a gang who robbed him of his mobile telephone is subject to cross-examination. ‘Judge: Were you aware whether the fracture came from the kicks or the punch? Victim: Kicking. Prosecution: How did it end? Victim: Someone said “I think he's had enough” and everyone ran off. Defence: Why are you so sure kicking caused the fracture? Victim: I was punched in the side of my head and the fracture is nearer my eye’ (Hogan trial). Faced with a matter-of-fact, clear response the defence could only change tack, insinuating that ‘in light of what happened that night’, and the light conditions, perhaps the victim was mistaken. Equally considered responses saw the defence suspend the tactic, but it was not dead, the defence later suggesting the victim's attempts to deflect blows to his head would have obstructed his view of assailants.
This was a victim likely to elicit a juror's sympathies—a well-spoken, promising junior athlete injured in such a way by lower-class street robbers that it affected his athletic training. The defence goes civilly with him, the main tactics being attempts to ‘pick holes’ and the line about clarity of recall. This contrasted with tactics deployed against Asian ‘victims’ in a road rage incident. The Afro-Caribbean defendant faced four counts of GBH on one of the Asians, a bodybuilder.
Defence: You told the jury that he said something to you as he passed, but the truth is that he was singing along with his car stereo, wasn't he? Victim: I don't know. I didn't hear him, he could have been swearing … Defence: And you went to him and said ‘You've got a lot of fucking nerve, haven't you? Get out of the car!’ Victim: No. Defence: You got out of your car and went up to him, didn't you? Victim: Yes. Defence: And punched him through the open window of his car. Victim: No! (Lane trial.)
Counsel's questions were aggressive and fired very quickly. The response is sharp.
Counsel uses a directive maneuvered—the witness is put in his place by being told to face the jury, immediately followed by an accusation of lying, a line extended by mention of criminal records, and then by lengthy questioning over his involvement in bodybuilding and whether he used steroids as part of the role of ‘local hard man’. The victim declared he had been frightened for his life. ‘Defence: So frightened for your life you ran after [defendant]. Victim: I didn't run after him. Defence: So if someone saw you running after him they were mistaken? Victim: I don't know who the hell could have seen me. To be honest I think I walked after my brother. Defence: Since we are being honest, did you run after [defendant]? Victim: No’ (Lane trial). Counsel exploits what is simply a turn of phrase. Where the athlete's then-diminutive stature lent plausibility to his victim status (photos of him at the time of the incident were displayed, having undergone a growth spurt since the incident), the bodybuilder's massive bulk undermined his. A sub-text of the aggressive set of tactics—quick, blunt questioning, reputation denigration, exploitation of body image—is that they may sufficiently rattle the witness to provoke anger. A final device came close to the desired effect. ‘Defence: I suggest that you and your brother took umbrage to some imagined slight and that you were punching and kicking him after you dragged him out of the car. Victim: No! Defence: Well, we have witnesses to prove it. Victim (sharply): What witnesses? Defence: Never mind them. They will be revealed in due time’ (Lane trial).
Defence: Did either you or your brother wrench open the car door and drag him out of his car? Victim: No. Defence: Look at the jury when you are giving your answers please. You are lying. Victim: No, you are the one that is lying and making things up. Defence: So your evidence on oath is that you did not drag him out. Judge: Let counsel finish his questions first.
(p. 131 ) Defence: Thank you, Your Honour. What I am suggesting is that you are lying … You and your brother. You have appeared in court many times in the past, haven't you? (Ibid.)
Such raw tactics in the face of what counsel wish to show as misleading testimony are enabled by another device, moving from an incidental detail to a gross conclusion with no intervening steps. ‘Defence: Why did you get out of your car? Victim 2: To look out for my brother, I was concerned. Defence: Is that because you have brought him up as a thug? Victim 2: We have only started to live together and I have only started looking after him. Defence: Do you feel that with 44 previous convictions and his 17 previous convictions that you have done a good job? Victim 2: I have done a damn good job of bringing him up!’ (Lane trial). The victim's criminal record is heavily exploited, with counsel meeting Victim 2's assertion (p. 132 ) that he is ‘a chicken, sir, when it comes to [knives] I run like a little girl’ with ‘you have not always been a chicken’. Following another accusation of lying, counsel returned to the victim's past. ‘Defence: Tell me about the drugs you are on … Victim: I don't take them. Defence: So your criminal record offences are wrong? Victim: Which ones? Defence: I am not going to read all 44 out to you. Victim: But I am not that person you have there on that sheet in black and white. I have made mistakes as a child, and I have changed. Defence: You are a vicious thug and you attacked the defendant’ (Lane trial). When the victim countered an accusation of chasing the defendant in his car by saying he would not have done so as it was a one-way street, counsel responded ‘are you really expecting us to believe you were afraid to commit a minor driving offence?’
As noted earlier, the armed robbery defendant regularly contradicted himself in glib responses under cross-examination that he cheerfully retracted or fundamentally altered when they proved hard to reconcile with other testimony. It was noticeable that his lawyer made particularly determined attempts to question each element of the victim and witness evidence, while making little use of the defendant's statements or testimony. The witnesses placing the defendant fleeing the scene were youths and some of their evidence was uncertain, though determined questioning failed to rattle them. A sense of the pressure lay witnesses can encounter is conveyed in questioning about the fleeing man's headgear. Counsel gets a young witness to specify the type of hat and in doing so seeks to exploit the witness's uncertainty, but witness receives this as a non-motivated rising of the logical possibility that a man could have worn a different hat.
(p. 133 ) The youth saw off a later imputation of failed memory with ‘that's what I saw, and that's what I told the police’, but the lawyer repeated questioning about headgear, perhaps thinking it at least kept his client off the stand, where his statements were self-refuting and changed with indifference to the effect. In one sequence of 92 words the defendant managed to change his supposed location at a key stage of the incident three times, but seemed unruffled, declaring at one point that it was common sense that anyone would deceive when in trouble.
Defence: What do you mean by balaclava? Witness: A sort of cloth that covers the whole head, with eyes cut out at the front. Defence: When you first saw him was he in the process of taking it off? Witness: Yes, it was three-quarters off. Defence: So you never saw it down fully over his face? Witness: No. Defence: You didn't have a chance to inspect it? I know it's a silly question, but you didn't have a chance to take it from him and look at it, did you? Witness: No. Defence: It could have been a baseball cap, couldn't it? Witness: Yes. Judge: No, what he means is, was it a baseball cap? Witness: No. Defence: How can you be sure? Witness: Well, it was long. Defence: What do you mean by ‘long’? Witness: Well, a baseball cap is short and a balaclava covers the whole head and neck so it is long. Defence: But you can't be sure and have assumed it was a balaclava? Witness: It wasn't a baseball cap. (McCann trial.)
While common sense features as a regular device it is common sense that makes allowance for the unexpected, extends the benefit of the doubt, and even suspends disbelief. Common sense is a malleable tool and lawyers' task is to present their case as better invested with it than the opposition's, by configuring key points in their case as more plausible, requiring less supposition and less fanciful premises. With the armed robber, counsel had an unpromising position to defend, and had to prompt jurors' skepticism over what seemed a cut-and-dried prosecution. ‘I ask you all to be demanding, awkward, difficult and questioning. When you go out I ask that there are twelve minds at work. My learned friend is right, this is not television … The case is not clear, not consistent … Do you feel safe about the evidence? Is the case clear? Demand clarity’ (McCann trial). The difficulty in majoring on ‘scepticism’ was that his client had presented as wildly unreliable.
The invocation of common sense is more a moral emblem than a set of principles with which to guide judgement. In its name jurors are asked both to tolerate contradiction and to punish it, to accept denials of the obvious, and to impute the most contrary motives or to look for no motive at all. Common sense reverts to whatever counsel want jurors to believe and is an illusory and empty standard, a trope wheeled on as a ‘principle’ when courts have before them parties whose testimony all in court know is motivated by interests.
Prosecution: Are you on the same football team? Defendant: Yes. Prosecution: Have you spoken to him about the incident? Defendant: Yes, but not a lot, cos the solicitor told me not to. Prosecution: What did you discuss? Defendant: Just things in general. Prosecution: What did he say to you? Defendant: That … he would do what he could to let it be known he had seen it all. Prosecution: You meant to say he'd do everything he could for you, didn't you. Defendant: No … Prosecution: Who was in the lounge bar? [Defendant fails to name a witness he said was there] …
(p. 134 ) Defendant: I apologize; obviously [that witness] was in the room. Prosecution: Was that an accident or was the truth that [witness] wasn't in the room? Defendant: Well, if you are going to put it like that, I never said that [victim] and I were in the room either. (Maguire trial.)
The appeal to common sense and thus to the reasonableness of what ‘most people do’ has to be effected by means made available by the case. Counsel has to remain on the right side of the brief of the criminal trial while seeking the mantle of right-thinking reasonableness. ‘Prosecution: [Victim] had no plans for the evening. He took himself off to the cinema. You might think that is a nice way to treat yourself. He went to see a remake of an Italian film; it sounds quite pace and quite good’ (Mason trial). We hear no more of counsel's sideline in film criticism as the judge stops him. Common sense does not just carry with it a claim to know how ordinary people think and to find a case those allies with that inherently reasonable outlook. It also includes tactical orientation to private/public boundaries. A machete attack on a wife by her partly clothed husband may strike jurors as sordid, and the prosecution seeks to project sensitivity to that feeling.
The request to put oneself in one of the party's shoes exploited the very sensitivities counsel began by ‘respecting’. Appeals to everyday reasoning are facilitated by alliterative devices, such as those employed by the defence in the case. ‘I suggest that … she exaggerated [injuries] and she received them accidentally … There are of course women who get beaten and men who get beaten within a marriage. There are women who cry wolf and men who cry wolf. I suggest that the defendant blew his top and said “I have had enough” ’ (Thomas trial). The speech includes reference to a homily (Men as well as women ‘get beaten’), a parable (wolf), and colloquialisms (‘blew his top’).
Prosecution: It is very difficult, ladies and gentleman; you walked in yesterday into what really is a private matter … You must consider [victim's] injuries, to her ears, her thumb, and her wrist and arm … The defence claims they were caused by a man attempting suicide. … You may consider this—if he was going to attempt suicide, then why? He was told by [witness] that his wife was having an affair. Would you go home, have a bath and then try and kill them [sic]? It is nonsense. (Thomas trial.)
The use of familiar sayings reinforces claims based on common sense and what any right-minded person may do. Such phrases can (p. 135 ) be used to adorn a bald assertion (‘Prosecution: Let's not split hairs—you hit him’; Booth trial) or to make an accessible pause after a key allegation (‘Defence: [Victim] had a conflict of interest—to either fight with his mates or arrest them in line with his Special Constable Job. He was stuck between the devil and the deep blue sea’; ibid.). They can facilitate implicit advice to jurors. ‘One of the things I kept repeating yesterday is that [defendant] is no angel … But this is no popularity contest but a criminal trial’ (Good all trial). There is also the phrase that counsel suspects may not be universally known, and can be asked of the defendant to ‘educate’ the jury while functioning as a test of a guilty mind. ‘Mr. [defendant], you know what the term “cottoning” is, don't you. Victim: Yes, I've heard it. Defence: Will you explain it. Victim: Men going to the toilet. Defence: To do what? Victim: Sex’ (Carr/ Macdonald trial). The defence case was that the victim propositioned the defendants. Familiar sayings also neutralize or reduce the seriousness of inconvenient facts. ‘They were two men going for the human version of deers locking antlers. They were going for a fight’ (Lane trial). Counsel was fond of this, with it recurring at least three times (‘one of two of the proverbial stags’, ‘does this tell you something of the suggestion of stags locking horns’). An unimpres-sive defendant is ‘a bit of a rough diamond’ (Mason trial) and insinuating questions can be set up with colloquialisms—‘Are you familiar with the term “six of one, half a dozen of the other”?’; Searle trial), used before suggesting that a victim precipitated her partner's assault on her.
If pre-trial briefing is thorough, counsel will know factual details accepted by both parties. These can be aligned to ‘show’ juries a particular rendering whose plausibility is enhanced because it flows from ‘facts’ counsel know will be confirmed in testimony.
These ‘factoids’ were used to secure contested identification evidence.
Prosecution: [Victim] told us that the man who smashed him round the head with a piece of wood had a girlfriend called [name]. Did you have a girlfriend called [that name]? Defendant: Yes … Prosecution: [Victim] told us that the person who caused his injuries lived in [road]. Do you live in [same road]? Defendant: Yes. Prosecution: He told us that the man … Took a crate of Stella lager to the squat that day. Defendant: Yes. Prosecution: You told us that your favourite drink is Stella lager. Defendant: Yes. (Ross trial.)
(p. 136 ) The tactic of irritating a witness whom counsel senses may respond in a way revealing how they acted in the incident requires counsel to use participants' performance to tell a story that is sub-text to their actual utterances. The character sketch that is created is only partly composed of the verbal testimony. A judge acknowledged that advocates may deliberately provoke—‘obviously witnesses and defendants get irritated sometimes, [it] may be a deliberate tactic to irritate them’—but put faith in procedural formality to calm feelings (Judge 1). This did not appear to have registered with the defendant in a racially aggravated assault case. He found counsel's sallies beginning ‘I suggest’ both ‘belittling and demeaning … They made suggestions to say that I done what [victim] said I done and the way that he said I done it never happened’. He complained ‘they exaggerated the accident. See, they weren't there so they don't know. I was there and if it was as bad as what they said … there would have been witnesses’ (Good all interview). The judge felt that ‘people generally are far more confident than they used to be. You can find ordinary people … being able to come to court and speak out … To answer back to counsel, when they're tempting and teasing them’ (Judge 1). Another judge accepted that lawyers might employ particular wording because ‘they think that the way they phrase the question is going to get the right answer’, leaving witnesses ‘baffled’ (Judge 4). Ushers were alert to lawyers' tactics and their effects. ‘If they get angry it is usually brought on by the questioning of the barrister … the barrister has … purposely upset the witness’ (Usher 2). Escorting witnesses gave ushers an idea of their reaction. ‘They are always made to feel “why did I bother to witness this? Why am I here?”, because they are always … not bluntly called liars but there is always a different story put to them. As they come out they say “why did I bother?”, and to be cross-examined, I am sure the lay person thinks “I was only telling you the truth, that's why I am here, why are you doubting me?” ’ (Usher 5).
There was a performance element in lawyers' tactics. ‘Some barristers do it on purpose, to make that pause, to make the … Histrionics. … like you are at the theatre’ (Usher 3). Interruption, a victim sensed, was done to unsettle. ‘Sometimes he didn't leave enough time or I'd start to reply and he would be like “No, no, that's not what I meant” ’ (Aitkin interview) and ‘sometimes he gave the impression that he was sort of scoffing’. Moreover, ‘when I was (p. 137 ) talking to him about (the assault) … he was like “what are you talking about?” … He seemed a little bit manipulative; when I got my age (at the time of the incidents) wrong and when I tried to apologize he tried to make me look stupid, which I suppose is to be expected … It was belittling when he … asked if my Mum had put me up to this or I had made it all up’ (ibid.). Another victim's expectation of respect for the truth was disappointed. ‘He had a set idea and they weren't going to be budged … They just didn't even attempt to try and believe what I was saying’ (Cook interview). Counsel had ‘certainly wanted to manipulate me into saying certain things’. The experience of being depicted as not believable and repeatedly being asked the same question irritated and upset lay participants. ‘Even though I repeated the answer to the question, they then came back with the same question again and again, and I had already answered it three or four times’ (Cook interview). His responses were not treated respectfully: ‘they weren't rude … but by not believing me I don't know whether that is treating people with respect’ (ibid.). There had been manipulation, and a dismissive attitude to his medical condition. ‘When they were talking about my irritable bowel … they were pooh-poohing it as if it was nothing and it doesn't exist’ (ibid.). A victim of assault who, like the victim with IBS, was put by the defence as having opened himself to assault by seeking homosexual relations, regarded the questioning of his character as ‘harsh’ (Chapel interview), and another victim spoke of the defence counsel's attempt to ‘assassinate my character … he was trying to work out how much I had to drink that night’ (Clark interview). An expert witness was rattled by tactics. ‘My expertise was questioned … The defence was trying to make out that I am not appropriately qualified or not an expert … which is disconcerting to say the least’ (Hardy interview). She found counsel ‘very devious and manipulative in the way he asked the questions’. A lay witness felt that opposing counsel ‘made me say what they wanted me to say. I could see what they was doing, they were trying to push me into saying what didn't happen’ (Hart interview).
Counsel repeat questions looking for discrepancies or to rattle, and this witness had found it bewildering; ‘I explained it and they said the same thing again … (Did you find that confusing having to go over and over the details?) Of course I did!’ (ibid.). The (p. 138 ) repetition was ‘annoying’, and he resented attempts to manipulate him into accepting that things had happened other than as he had testified (Hart interview). Both prosecution and defence were manipulative ‘all the time’. Assumptions were made and intimated about the lifestyle and character of a biker; ‘the way they were going on like I was making things up, like I didn't see the things I was saying!’ (James interview). He was addressed as if he were a child. He spoke of being ‘made out to be a liar’ (James interview), and a prison officer resented counsel ‘trying to labour a couple of points like me not seeing the injuries’ (Martin interview). Even the strong-willed jib at some lines; ‘it was fine until they accused me of not being there at the incident. I took exception to that … you know that's really annoyed me’ (Reed interview). He felt he had not been treated with respect.
Prosecution witnesses are likely to consider that defence lawyers lacked courtesy towards them (66% felt this) and deny them sufficient opportunity to answer questions (Hamlin et al. 2004: xii). The proportion was actually higher than before measures were introduced to better support vulnerable witnesses, suggesting a change in counsels' tactics to counteract new measures such as screens and video links. Even victims and witnesses questioned by their own side may feel they were not given the chance to say all that they wanted, 19% in Hamlin et al.'s survey, of whom 39% complained they wanted to explain in more detail and give all the facts. Feeling able to fully testify is closely related to overall satisfaction, with 47% satisfaction amongst prosecution witnesses who felt unable to say all they wanted against 71% who felt they were given enough opportunity. While Hamlin et al. focused on vulnerable/intimidated witnesses, results are similar for witnesses overall; with those who were not given the chance to say all they wanted by their own lawyer having much lower overall satisfaction (43%) than those who had (82% overall satisfaction; Whitehead 2001); a similar difference applied to those denied the opportunity by opposing counsel (56% compared to 86%). Defence lawyers were satisfactory to only 45% of victims and 69% of other prosecution witnesses. Witnesses who are cross-examined are less satisfied with their treatment than those who are not (74% versus 83%), with only 61% of witnesses cross-examined by the defence happy with their treatment (ibid. 32).
(p. 139 ) Lawyer and Judge Conferrals
Judges regulate the exercise of tactics. Substantial matters are dealt with in the absence of the jury. Conferrals address ‘domestic’ matters; discussion of requests, challenges, information about evidence, witnesses or lines of argument; and actual disputes including those between counsel and judge as well as between counsel. The aim of conferrals may be regulatory but most are businesslike and pragmatic rather than confrontational. Many involve counsel and judge collaborating to agree joint interpretations of statute or precedent. Judges may be told they are mistaken, and exchanges can be very direct even when not confliction. Domestic conferrals mostly concern time and availability; for example, lawyers and judge briefing each other on work conflicting with the case at hand. There is a general sense both of contingency and maintaining a seemly pace even when there is reason for expeditiousness. Judges use conferrals to guide lawyers not only about their conduct but about elements of their case, including gaps in testimony or evidence; the judge may be umpire but is an active one.
The general image of conferrals is that they mark serious disagreements and points of law.
Here counsel and judge projected their concerns collectively ‘outward’ at a witness who felt unable to comply with courtroom procedure.
Prosecution: What eye was hurt? Witness: I don't know, as this wasn't the first time I have received a black eye from [estranged husband]. He has quite a temper. (Defence jumps up and asks for jury to be removed. Witness also removed but defendant allowed staying in dock. Matter of law raised—previous black eye not relevant and witness's inability to restrain herself is prejudicial to defendant. Judge to warn [witness] about type of evidence that is permissible but not in front of jury. If she does not confine her answers to the incident … the trial will have to be stopped. Witness brought back in). Judge: Ms [witness], we are all aware that this is a disturbing incident, I have told you to confine your answers … (Woodward trial.)
But judges and counsel often find themselves in conflict, even if counsel has a shrewd idea what judges are considering. This conferral was after the defendant above was acquitted; the defence applied for costs.
(p. 140 ) Judge: I am in the mind to impose a bind over to keep the peace and a good behavior bond [defence complains that his client has been acquitted] … Judge: Well, I am perfectly within my rights to do so in such a case (refers to authority in Arch bold). Defence: It appears Your Honor has already made up his mind. Judge: I haven't, I am giving you the chance to address me now … Defence: My client has no choice but to accept a bind over, otherwise you'll send him to prison. So you, in layman's terms, have him over a barrel. Judge: I am minded to prevent another experience like this [family brawl]. Defence: If the jury is right he was not the cause of this dispute, and then he should not be made the subject of any such order. The [family] wanted their pound of flesh and would not settle this amicably. Judge: I have heard what you have to say. Mr. [defendant], you are bound over to keep the peace and good behavior, this is not a criminal record, for one year in the sum of £250 from today. Do you understand? (Defendant said ‘thank you’ but looked angry). (Woodward trial.).
Judges do not directly wield their authority when a negotiation approach may suffice. Asked if conferrals are matters of instruction or negotiation a judge answered ‘negotiation first … then a matter of direction … [I]f there is a point of law … a type of line that they raise, I will hear their arguments and decide’ (Judge 1). A colleague suggested a role as arbiter who would work with counsel in the process of arriving at a decision. ‘[Q]questions of law are decided really by the judges, to help counsel … reach a decision … [M]sot judges, any difficult case law, or any law where there is not clear authority, do it in discussion in chambers. But we deal with the questions of law and we then try to simplify them, in a process with lawyers’ (Judge 2). He encapsulated the process as one ‘very much’ of negotiation. For another judge, while direction was sometimes necessary because counsel failed fully to understand the intended application of the law, the need to regulate arose ‘more often [because] it's trying something on’ (Judge 4). But judges generally emphasized negotiation. ‘I always take the view that if counsel says there's a matter of law he'll have researched it. So he probably knows more about it than I do at the moment. I will always listen to that … They only bring the judge into it when they can't agree themselves, which they've done outside normally. So they'll simply put something in front of me for decision and I'll hear both sides … [T]he tendency is, if it's finely balanced, we'll go with the defence’ (Judge 5). Judges generally favored giving counsel a clear idea of their view. ‘I'm very interventionist … in the absence of the (p. 141 ) jury in legal argument. Rather than let counsel go through a whole lot of irrelevant points I'll … pick up the point that matters and … get them to address that. I will tell them in advance the way I'm thinking, which saves a lot of time’ (Judge 4). She noted that counsel ‘have to’ cooperate. ‘Of course, on a very difficult point, that's when you sit and listen to everything before you say anything. You don't actually have a view at the beginning’.
Conferrals may have their negotiation quality enhanced because of the matter-of-fact conferrals that occur before a trial starts, where problems of timetabling are a major feature and dealt with pragmatically. Prosecution counsel are asked to estimate how long trials will last, the defence to anticipate, in effect, how telling their counter-arguments will be, judges chip in their commitments and what else is on in their court. Such discussions culminate in an invitation to counsel to ‘put your heads together and come up with a timetable’ (Booth trial). A trial has a measure of coordination, if not orchestration, and the prime ‘conductor’ is the judge.
Not all pre-trial conferrals are domestically oriented; there can be stringent legal argument and some heat, as in the GBH case earlier discussed where the defence complained of double jeopardy.
The defence then angrily and loudly complained that the prosecution is ‘muttering and gesticulating under her breath’; the judge chided her but animosity periodically flared thereafter. Legal argument followed regarding an exception to the hearsay rule. They referred to Arch bold. The problem was that the victim ran naked into the neighbor's house with his finger in the stab wound. The prosecution wanted to introduce evidence of what the victim told the neighbor. The judge allowed this hearsay due to its proximity to the event.
Defence: The Crown is inviting the jury to try the same set of facts … It does not look like the defendant is being tried twice, as the Crown is not willing to indict on another charge. But in essence she is. Judge: You don't want to draw my attention to any particular cases where abuse of process has been found? Defence: No, it is within your general and inherent powers, Your Honor. Prosecution: The application has no merit. There were two counts. The defendant was prepared to plead guilty to section 20, the last judge looked at the facts and realized what was proposed was, and I quote, ‘pure nonsense’. The wound was caused by deliberately plunging a nine inch Sabatier knife into the neck. Judge: I can't see that there is any merit in this application. This is in effect a re-trial of the section 20. (Childs trial.)
(p. 142 ) Conferrals before trial sometimes display a pragmatic air of decisions made on the fly. Thus an assault and ABH trial began with the prosecution applying to add further counts to the indictment as there was a series of assaults, with the defence objecting as some were not mentioned in the police statement (Hare trial). The boundary between separate incidents that each could be subject of a count, and a series of connected events that fall under a single count, often proves problematic. ‘Defence: It does not go along with section 41(b)—he is talking about two separate acts, the facts of which are different. The previous count took into account two sequential acts with the same facts. (Legal argument over whether common assault and robbery are the same and if the short incident can be divided into distinct acts)’ (Mason trial). There can be a sense of ad hockery motivated by working against a constantly gathering tide of business. A trial was delayed because the judge had had an accident, the trial being reallocated to another judge and behind his current case. The ‘current’ case did not proceed as the prosecution offered no evidence, with no explanation beyond ‘evidential and witness problems’. One in seven cases fail because key witnesses, including defendants, do not appear (News, BBC Radio Four, 16 June 2005). The delayed trial began but immediately stopped. ‘Prosecution: As we came into court I was writing out a second count that will affect [adult co-defendant] only. Judge: Go ahead. I will be back when it is all sorted out (court adjourned for 45 minutes)’ (Scott/Hill trial). Such circumstances are frustrating. A defence counsel apologized that he and the defendant were late, the judge snapping ‘if he is late again he will remain in custody’ (McCann trial).
Mistakes relating to disclosure regularly feature in conferrals. In one case, despite three PhDs the judge knew only the indictment and the defendants' names, and fundamental evidence had not been given to the defence. This was a serious case of false imprisonment, kidnap and GBH, with a number of ethnic minority co-defendants, complicated by a problem with the victim's immigration status.
It transpired that the victim had married to gain UK citizenship but the ruse failed and he now claimed to need asylum from Pakistan as a homosexual. The defence had not seen his police interview; a tape of it appeared on the morning of trial. The judge put the case back for another PDH. There is a practice of brinkmanship in making disclosures, but case-making is not the only influence. Late disclosure is also affected by the entangled lives of defendants and those involved with them. As a GBH trial began, the prosecution declared it would disclose the statement of the defendant's ex-girlfriend, which had come to notice due to another case in which she was witness against the defendant's current girlfriend (Wright trial). The ‘secondary disclosure’ had only been made the day before, a doctor was on holiday who could testify that the defendant's injuries were more extensive than he had told police, and the ex-girlfriend's statement was with her at a remote ‘safe house’. The case was adjourned.
Prosecution: Through an oversight, no disclosure has been made to the defence of a witness letter by [name] that can identify who was at the scene … Three defendants have claimed not to have been there, so his state-mint is clearly important. [Name], one of the witnesses, is now unwilling to give evidence … He has written a letter to this effect in Urdu [which] (p. 143 ) needed translation, and has written of harassment making inquiries about victim's immigration status). By [victim]. (Police (Sanan et al. trial.)
In regulating counsel, judges also effectively observe each side's line of argument, so that there may be an element of ‘coaching’. It can involve orchestrating next moves by both counsels. ‘Judge: Is there any intention to raise the issue of failure to hold an ID parade? Prosecution: No, I wasn't intending to. If Your Honor wants me to then I will in the speeches. Judge: The jury may wonder why the statutory duty to hold an ID parade wasn't complied with. Defence: I will raise it in speeches. Judge: You will have to say no reason has been offered. Defence: Yes’ (Bolt trial). Counsel is not alone in having their parts rehearsed; judges confer over their summing-up, outlining what ground they will cover. In an ABH trial the judge said he would give the standard directions on assault, confining them to intention. There was no case of provocation. He would explain that self-defence applied to person or property, that intoxication was not a defence, and refer to the defendant's alleged verbal abuse of police but warn that this was uncorroborated and stiffly denied (Booth trial). With inexperienced counsel advice can be substantial, as where a judge indicated that counsel had neglected a main plank of her case, gently noting that a key point concerning precipitation of the assault had not been cross-examined (Carr/Macdonald trial). The judge not only indicated (p. 144 ) what the defence should do but prompted the prosecution to make the move that would set back up this plank of the defence case.
Direct reference to tactical play is rare, even though case-making is often subject of conferrals. Comment is more often made on what the judge perceives may be gaps in a case that counsel should repair in fairness to clients. But here deliberate withholding of an account of the defendant's movements led to conferral. ‘Judge: My concern is that at no stage has he been asked to give clear and concise answers as to what he did on [date of armed robbery] … I am not criticizing you. It is a deliberate choice by the defence counsel, a tactic used, and I shall deal with it in the way I see fit, as case law gives me leave to … I shan't interrupt again unless at the end of the cross-examination no clear answer has been given and I shall take him through it’ (McCann trial). Points of law, the conventional phrase before excusing a jury, are not, then, the only business of conferrals, and may be entwined with tactics, as when the defence objected to a prosecution speech on grounds that it implied intoxication was not a defence to section 18 charges. The jury out, the judge said he would remind himself in Arch bold but the prosecution immediately apologized, and quoted the precedent from memory. The judge still read out the standard ruling. That counsel knew the standard ruling by heart suggests that tactics rather than laxity featured, but etiquette was observed by proceeding as if now informed by the judge reading out authority. Counterweight to the orchestration element is the principle that matters should where possible be left to the jury. ‘Defence: I would like section 18 allegations … to be dismissed … The defendant was assaulted very quickly and it would be improper to ask the jury to decide if there was time to form intent. [Defendant] responded very quickly and this has been witnessed by three people. Judge: I am content that section 18 should be left to the jury. Section 18 can be formed in a split second’ (Lane trial). This countervailing principle assists judges to bypass evenly balanced opposing positions.
Conferrals tell lay parties that as well as the evidence at the ‘surface’ of the trial there is a second interaction that may be a source of significant developments but into which they get only a selective glimpse, the interaction either being in their absence or about considerations that they do not understand. Conferrals can explicitly discuss post-verdict actions. Awaiting verdict, the judge in the unprovoked stabbing case asked ‘in the event of things going badly (p. 145 ) for your client, what is it that you would like me to consider’ (Hines trial). The defence cannot answer as the doctor ‘is no longer dealing with the case and the solicitors instructing me have been very busy’ but the prosecutor is able to say that the woman had been in a secure hospital, the judge responding that ‘she would benefit more from mental health care’ but places were scarce and a short hospital placement would have to do.
When it came to how juries took conferrals a very experienced judge could understand that jurors might ‘wonder “well, what is this trial about? I'm supposed to be judging it” ’. Some witnesses also found conferrals disturbing; there was an uncomfortable feeling of people talking behind one's back. Bewilderment was undesirable but there were heavy constraints on what could be done.
One tries, after [jury] have been out, to explain what it's about, if one can. But so often it is, for example, an argument about content of an interview … which you've ruled out. You can't tell them about that … [I]it's very difficult, the line to tread between misleading them and trying to help them. And to say ‘well, we've just been editing an interview to remove irrelevant things’ might be true and if it is true I'll certainly say it, but much of the time it isn't true because the things were highly relevant, they're just ruled inadmissible … You can't tell them that though. (Judge 5.)
Trials are delicate social phenomena. Formally, authority resides in juries: the evidence is presented to them and they make the crucial decision as to verdict. Yet power rests with judges, who regulate the proceedings both in ‘case management’ and in court. They seek to ensure that jurors have the information they need, asking defendants, lawyers and witnesses questions, and putting questions on behalf of juries. They interpret and apply relevant law. They direct defendants, juries, lawyers and witnesses. They stop defendants, lawyers and witnesses, too, and issue instructions to all participants, from ‘domestic’ matters such as times the court will sit through procedural matters like the discontinuance of lines of questioning. Judges will often pursue their own questions after counsel has finished, covering gaps, some of which may have been left tactically. The trial process offers judges set stages when their input is required, culminating in sentencing, but judicial interventions can be made any time. Despite judges considering that one or more important witnesses were not called in 19% of contested cases (p. 146 ) (Royal Commission on Criminal Justice, 1993: Para. 8.18), judges seldom use their power to call witnesses. This reflects the principle of assessing only what has been made part of counsels' case, but the Commission also found that ‘it is not unknown for judges, while emphasizing that matters of fact are for the jury and not for the judge, to comment on the facts in such a way as to attempt to influence the jury in one direction or another’ (ibid.: Para 8.21). While summing-up must include the ‘facts’, it is recognized that ‘any summary of the facts cannot be wholly neutral and must inevitably transmit the judge's opinions’ (Aglow 1997: 53).
Judges have to attend to circumstances around the trial proper, to ensure these only become part of proceedings in an acceptable way. For example, they are alert to spectators, from those with an observer's interest only, such as school visits, to people intimately involved with participants, such as partners and relatives. Judges seek to know who people around the courtroom are. The judge at the murder trial noticed the full public gallery. ‘I am not sure who they are and would like some idea of the numbers. However painful an experience this may be for people in the public gallery there must be absolutely no disturbance whatsoever. The last thing I want to do is remove members from the public gallery’ (Adams trial). While acknowledging the importance of public trial, he indicated that he could exert power over who was present. The judge has prime role in ensuring that witnesses are able to give their testimony. With nervous or upset witnesses judges intimate that it is to them that requests such as breaks to regain composure must be made. Upset witnesses are often offered water by the judge, with the exchanges confined usually to the bare offer. ‘Defendant: I wasn't happy about it (crying). Judge: Water?’ (Hare trial). Few interventions are as brief, but the purpose is to keep proceedings going rather than to give therapy. The offer of water momentarily shifts the interaction to a routine activity associated with respite from the cares of the day, shifting from the unfamiliar and threatening script of cross-examination to the etiquette of taking refreshment. Procedures that would tie up court time and could be done in recess are so ordered, as where a judge told counsel that it would be more sensible to count knife holes made in a garment ‘over lunch’.
Facilitative interventions tend to brevity, while regulatory interventions can be extensive if lawyers mount arguments and counter-arguments. The latter are mostly delivered without the jury (p. 147 ) and can exceptionally involve the judge effectively taking over the conduct of the trial if s/he feels counsel is being deficient. Here the jury has been stood down during an assault trial.
This was not a solitary instance of the judge ‘taking on’ the part of counsel.
Judge: Ms [Defence], can you help me … If you turn to your client's interview at page 5 your client says that [victim] barged [co-defendant] as he came out. It wasn't put to [victim], was it? Defence: No. Judge: Is that still your case? Defence: Yes, it is. Judge: It might be vital at this stage, which is why when [victim] had finished I asked if you had any further matters to put to him. Defence: Yes, You're Honor. Judge: As it stands the allegations stand in a most unsatisfactory form. Prosecution: You're Honor, there is another matter. Judge: No. Sit down. You can raise the other matter later. How hard will it be to recall [victim]? Prosecution: You're Honor, I don't know. Judge: Ms [prosecution], I want you to consider whether you want [victim] recalled. Prosecution: I don't know whether the defendants have changed their defence. Judge: No, this isn't a matter for the defence to decide, it is your move. (Application supported by defence.) Judge: I am mindful of your client and am afraid that the jury will think [co-defendant] changed his story, which he did not. (Carr/Macdonald trial.)
While judges must have a patient temper, their role also means that rebukes are sometimes necessary. Rarely, though, circumstances result in interventions that seem petulant. This exchange involved an experienced barrister and a judge with whom she had an established sparring relationship.
(p. 148 ) Prosecuting counsel arrived at 10.55 and was told by the usher ‘well, I am glad you are smiling’.
Judge: Is this an effective trial? Defence: Yes, but I would like to ask for some time. Judge: Time? Defence: Yes, I was under the impression it was for one day, but my colleague tells me that it will take two days. Judge: Two days! For a common assault!? Defence: Yes, because of an unavailability of a witness to come from the West Country. Judge: Two days! That is impossible in a case of this kind, to tie up the court like this. Simply get the matter on and be done with it. Defence: Your Honor please let me check with my colleague. Judge: (muttering loudly): Utter nonsense. Where is the prosecuting counsel? Defence: Not here yet, Your Honor. Judge: Where is he? Where has he gone? The question now is, where has the world gone? Have you seen him today? Defence: Yes, I think he was the one that came into court behind me. I can give you the bundle. Judge: No! I am not going to see anything that could be considered contentious in the absence of counsel. This case was listed for 10.30. It is now a quarter to. If he is not here by 11 a.m. I am going to instruct Crown to offer no evidence and that is that. I am not sitting here waiting and that is that (gets up and leaves). (Thomas trial.)
Matters failed to improve, to the point where eventually the judge felt obliged to acknowledge to the defendant that bad appearances were being given.
Prosecution: I apologize to the court. I was double booked in court two. Judge: You had no business being in court two! You were listed in this court and that is unacceptable. If you wish to double book you know the procedure, tell the list officer. Prosecution: I apologize again. Judge: Now I understand there is a problem with time. Prosecution: Well, I anticipate the examination will take one and a half hours. Judge: One and a half hours! This is ridiculous. This is a simple common assault. The incident is described and that is that. (No statements taken by solicitors, only letters.) Judge: The solicitors have not organized themselves. Is there any reason why the solicitors shouldn't have to pay costs? It is my opinion that this could have been dealt with by lunchtime had the witnesses been dealt with expeditiously (Judge Wants solicitor to come to court). Judge: If he has something to say to me let him come. He can come tomorrow at 9 a.m., I will be here. I will be here at 9.30; I will be here at lunch. Let us just get on with this case, we are arguing over something that may be academic. We do not even know if the witnesses will be called. This seems the sort of a case that a magistrate is fit to try. It's a section 51, but it is here now, so we have to get on with it. Prosecution: Your Honor, the magistrates' court declined jurisdiction … Judge: I take it this will take up all of tomorrow? Defence: Yes, You're Honor. It is not the defendant's fault. Judge: Yes, I know that and I am not for one moment suggesting it is. He can see how cross I am but it is not with him. (Thomas trial.)
Having begun the trial chastising the prosecution for lateness, clashes with defence counsel marked the closing stages. The following exchange left both judge and defence quivering with rage. Defence is summing-up.
The defendant was acquitted of threats to kill but convicted of the lesser charge of common assault, with token costs. The exasperated judge's near-final comment was ‘I think the magistrates were perfectly justified in declining jurisdiction’. Asked if there were lawyers or judges the barrister dreaded to encounter she sarcastically said ‘Oh no’, adding ‘you might pretend it's a game to outsiders but most people take the job very seriously. There are judges that one doesn't like, opponents that you don't like, but that is life’ (Lawyer 1).
It was put to [defendant's brother] and [defendant], would anyone ever kill themselves over something so inconsequential … One of the current programmers on TV is Crime Scene Investigation, if you don't watch it I suggest you//Judge: I must stop you! I cannot let you relay evidence from a TV programmed. Defence: With respect, there you go. Can I ask the jury leave us as it is unhelpful to have Your Honor interrupt me in the middle of my closing. (Jury withdraws). Defence: I am sad that Your Honour saw fit to interrupt me. I was//Judge: I am sad that I had to! You are not entitled to give evidence from a TV programme (lengthy, quickfire argument. Judge is very angry, hitting table, leaning forward and red-faced). Judge: I did not (p. 149 ) make a point! I was asking you to clarify evidence. Defence: I was going to say that the programmed showed that you cannot infer that the absence of marks or blood means there was no suicide attempt. With respect I suggest that Your Honor interrupted too early. Judge: I did not. I have heard you refer to TV programmers in your final argument before and I am not having it! You are within your rights to say the absence of marks does not mean no suicide attempt was made. But I am well within my rights to stop you from using TV programmers as a basis for forensic truth! If your client is convicted you may take this to the Court of Appeal if you like! Defence: I am going to try and fulfill my obligations to my client as best I can. Judge: Good! Then let's be having the jury back in (jury returns). Defence (to jury): I am going to continue, please forgive me if my voice is shaky. Do not hold it against the defendant. (Thomas trial.)
Interventions frequently occur when judges feel something may be unclear to jurors, often simply when it is unclear to them. Experience allows judges to anticipate counsel's next move and thus to help counsel and witnesses achieve pace. ‘Judge: Now do you want the jury to have a look at that knife? Prosecution: Yes, please’ (Childs trial). Judges will intervene if witnesses have trouble articulating their response. ‘Defendant: I was up for 32 hours, I wasn't alert. Prosecution: No, you were interviewed some ten hours after the event. Judge: What he is trying to say is that from the time he woke up that morning and when he was interviewed he had been up for some 32 hours’ (Carr/Macdonald trial). Judges also have to ensure that witness's testimony is adequate for the record. ‘Prosecution: Were you aware that those toilets had a reputation? (Witness shakes head). Judge: The tape does not pick up shaking of the head’ (Carr/Macdonald trial). A common reason for intervention is where lawyers or witnesses are going too fast for the judge to keep notes. ‘Prosecution: Were you involved? Witness: No I was in the other bar, but saw them landlord and colored shake hands through the window. Judge: At the end of this Mr. [witness] I have (p. 150 ) to sum this case up to the jury. I can't do this if you keep talking so fast’ (Maguire trial). Witnesses are sometimes scolded, particularly when they do not respond to previous advice. Witnesses that press on will be stopped sharply. ‘Judge: No, stop you are not allowed to say//Witness: Sorry but I was just saying that [she] told me that//Judge: Don't be sorry//Witness: But [she]//Judge: Don't be sorry—listen to me! (raises his voice and looks annoyed)’ (Searle trial).
On the rare occasions when witnesses request judicial intervention they have little success, the presumption being that the judge is monitoring anything that might require one. For example, ‘Defence: You have been treated for alcoholism in the past? Victim: Yes. Defence: You were at the [name] clinic. Victim: You're Honor, is this not irrelevant?’ (Searle trial) received only the continuance of the line of questioning, as it went to character. Efforts to discipline witnesses may involve language that suggests the marshalling of troops or animals. ‘Witness: [Defendant] seemed to resent the fact that we were going to the party, and wanted to take the girls himself … (To judge:) Do you want me to slow down? Judge (to prosecutor): Can you please control your witness? Witness: I'm sorry, it's just very nerve-wracking to be up here’ (Woodward trial). As well as controlling witnesses, judges deal with extraneous upsets. ‘Suddenly the judge nearly jumps up from his seat and shouts “Who is that gentleman? Throw him out. I saw you making that cutthroat gesture towards the defendant! Get out of here. You are not to come back in!” A rough-looking man sporting prison tattoos leaves, protesting he has nothing to do with the case and isn't threatening anyone’ (ibid.).
A prime formal point for judicial intervention is summing-up. As well as highlighting the opposing lines of argument this involves rehearsing juries on their place in the formal proceedings. In the murder trial the judge told jurors to take into account the stress witnesses felt, and that several lines of defence argument were in play—‘the defence of accident, the defence that [defendant] did not mean any harm, and a defence of provocation’. He advised the jury that they ‘cannot ignore the physical facts of the stab wounds’ and told them to ignore emotional considerations and the murder victim's reputation. Having reviewed evidence he identified as crucial, the jury was given his document stating the necessary elements of conviction for murder and manslaughter. He clarified options in (p. 151 ) respect of each count on the indictment, then explained ‘I have put the possible verdicts in bold and underlined. The foreman or forewoman will stand up and read the verdict exactly as I have written them for you. I'll say “have you reached a verdict” and the foreperson will stand up and will reply’.
Some judicial advice is formulaic, given by convention, an example being the ‘Lucas direction’ (that good character is not in itself a defence). Others are specific to a given trial but uncontentious, an example being reading out medical definitions. Jurors are advised that sensitive matters may be discussed in businesslike fashion (‘there are matters to be examined which are somewhat sordid. I require counsel to deal with these matters somewhat clinically, and there will be no pussyfooting around’; Carr/Macdonald trial). Those relating to stereotypical assumptions may elicit substantial, spontaneous expositions.
In this case there is a ripple of generalizations. We have to focus sharply on issues beyond these as there is no room for generalizations in this court. Homosexuals who go to this toilet do so for sexual favours and usually do so furtively, they do not want to be found out by family or friends. The next generalization is that some young men go to such places to rob the homosexuals knowing that homosexuals do not want people to find out they were there and so will not report it. (Carr/Macdonald trial.)
Uncooperative witnesses and evidence containing forbidden information are significant threats. It is somewhat improbable that jurors can ignore information once it is revealed. For example, a taped interview was introduced for relevant information contained at its end but the court also heard information not deemed relevant, including that the domestic violence defendant had been living in a facility for ex-prisoners and there was previous violence in the relationship (Thomas trial). The judge told jurors to forget this, but the information was the best available about aspects of the case. The general judicial view was that people could not unlearn what they had heard and if it was anything more than peripheral it was wisest to abandon the trial. ‘You hope that that situation won't arise … [I]f the defence ever argued that because of something that's been said the trial should be stopped, I'd err on the side of stopping … How a jury can possibly ignore something that's significant that they shouldn't have heard!’ (Judge 4). A presiding judge agreed. ‘Fortunately, that doesn't often happen … The judge would (p. 152 ) have to decide … whether it is capable of being ignored by the jury or … is so fundamental and so prejudicial that you'd have to stop the trial. And that does happen. For example, if somebody's up on a violence charge and it's blurted out that they've had two or three previous charges’ (Judge 1). A colleague saw a ‘great danger’ in telling jurors to ‘ignore this or don't infer from it’, seeing it as the forbidden fruit that compelled further speculation. Another judge thought juries were incapable of ignoring disclosed information (Judge 3), and for another it was a ‘troublesome’ possibility if the information was ‘significant’ (Judge 4). A barrister was more sanguine because slips were occasional and seldom more than a few utterances. ‘I don't think that anything that is said is quite as earth-shattering as the American system where jurors are told to ignore great chunks of what could obviously be highly relevant. If something … is quite earth-shattering the defence can ask for a re-trial’ (Lawyer 4). Asked if jurors could ignore testimony an usher replied ‘No (laughs), could you?’ (Usher 5), a view shared by her colleagues. Akin to forbidden knowledge was a judge's advice to jurors that it should not influence them that the defendant's girlfriend was trying to prevent prosecutors formally complaining that she had interfered with witnesses (McCann trial), which may have excited the concern it was meant to assuage.
Judges and lawyers agreed that judges rightly intervened more than formerly, although judges acknowledged—and were interested in—variations between their colleagues. ‘Most judges would not simply … do anything while things go wrong. Judges these days are far more interventionist and … Controlling of the procedures. That is simply doing what we should be doing. You're there to control the proceedings and to make sure that they're fair’ (Judge 1). Intervention was obligatory in certain clear and regular occurrences—inadmissible evidence, excessive leading, bullying and otherwise mistreating witnesses. To this, a minority group judge added ‘where witnesses or the victim is under unfair stress, where there are allegations that … really shouldn't be made whether it's to do with sex or race’ (Judge 3). A judge noted that fewer appeals now succeeded on the basis that the judge asked untoward questions, and also ‘We've been encouraged to be more interventionist if things are going badly awry or counsel's delaying or being irritating’ (Judge 4). Older judges may nevertheless feel that ‘the best trial is one where the judge doesn't intervene in anything’ (Judge 5). (p. 153 ) There was no need where all understood and played their part, and short (one or two day) trials sometimes required no intervention beyond his declaring lunch breaks.
Witnesses generally appreciated the judges' interventions. An ABH victim noted that ‘he didn't say very much but he was very helpful’, treating her with respect, taking seriously what she said, and giving her time to answer (Aitkin interview). A soft-spoken victim of assault and robbery was prompted several times by the judge but acknowledged that he had ‘garbled’ his answers (Chapel interview), an assault victim found the judge ‘a decent bloke actually … he seemed to be generally quite helpful’ (Clark interview), and a witness generally aggrieved about the court experience found the judge ‘all right’ and easy to understand (‘more so than the lot of them!’; Hart interview). Only one witness expressed concern about judicial inter-venations. ‘They [judge's questions] took me by surprise because the other people were talking and he just jumped in’ (Mann interview). He did not think the judge listened to his response, although he was given enough time to answer and the judge ‘wasn't disrespectful’.
A generally even-handed, facilitative manner also extended to defendants. Even quite gross misbehavior was dealt with politely. ‘Defendant's mobile rings in the dock. Judge looks a little cross, saying “will you make sure it's turned off” ’ (Woodward trial). Judges also seek to calm defendants angered by pointed and repetitive questioning. Tact and balanced neutrality are required. Indeed, the judge sometimes seemed the last person left taking the defendant seriously, including defence counsel. In pursuing whether the armed robbery defendant who continually changed his testimony would have been able to enter his girlfriend's flat, his claim being that he had lost the key, the judge referred to a point that impugned the defendant's testimony (ease of key replacement) but balanced it by proffering an account (‘not bothering’) that plausibly related to the picture given of the defendant. Jurors nodded keen interest and approval during the exchange. The questioning that followed was among the longest initiated by a judge, and was direct, eliciting an unvarnished account compensating defence counsel's failure to get straight answers.
The questioning was sufficiently confiding that the defendant then appeared to share a ‘conspiracy’ with the judge regarding deceiving his partner about his disqualified driving, detailing how he removed the car key from her keychain ‘quite craftily’. Jurors smirked at his account but the judge betrayed no reaction. Judges tend to preserve their aplomb in the face of accounts of the plainly discreditable if not the downright depraved, and maintain the pragmatic tone beyond the point at which embarrassment, revulsion or mirth overwhelms others. ‘Judge: In what way were you trying to kiss her? Defendant: In a loving way. Judge: Were you trying to put your tongue on her lip? Defendant: No. Judge: Were you trying to French kiss her? Defendant: No, I was trying to song her. (Jury starts giggling.) Judge: Were you trying to put your tongue in her mouth? Defendant: No’ (Searle trial). Maintaining an even demeanour can be no small achievement.
Defence. Your Honour, have you got any questions to ask? Judge: Yes, rather a lot I'm afraid. On the [date of armed robbery] did you have a car at the time? Defendant: No, not that was running. Judge: … And you occasionally (p. 154 ) used [girlfriend]'s car? Defendant: Yes. … Judge: And you lost your flat key? Defendant: Yes. Judge: When? Defendant: About [6 weeks before robbery]. … Judge: [A]nod how did you get in? Defendant: [Girlfriend] would be in … Judge: How did you know she had written the note? Defendant: She told me. Judge: What did she say? Defendant: “I have put out a note for [debt collector, robbery victim]”. Judge: What time? Defendant: About 5.30. Judge: Saying what? Defendant: “I'll be back at 8.30” … Judge: Why did she write the note? Defendant: 'Cos we are arguing. Judge: So why did she write the note? Defendant: Well, I wanted to borrow £10. Judge: So that is what you were arguing about? Defendant: Yes … [Girlfriend] was at friend's house; I went there and said “Can I have keys to flat”. Judge: But you were already at the flat! (Four jurors have faces lowered, laughing hard). (McCann trial.)
Interventions with lawyers in open court are largely in the form of questions about gaps in testimony or evidence, or the purpose of moves requested by counsel. Exchanges with counsel operate on a degree of assumed common purpose that generally transcends the adversarial relation. These allies with the quite close direction of counsel. It is not that every word is scripted by the judge but that counsel are aware they are being monitored and when a point needs to be clearer or a gap filled the judge will intervene, somewhat like cooking a meal in the presence of the person who devised the recipe. ‘Defence: That is all. Judge: Are you not going to deal with the photo in the kitchen? Defence: Yes, but I was going to ask another witness. Judge: If it can be asked of this witness, ask it. (p. 155 ) Defence: Very well’ (Lane trial). The joint nature of the accomplishment, though not to be over-emphasized, may account for lawyers' breach of norms, or ‘getting ahead of themselves’. ‘Defence: Did Dr [name] conduct a limb check? Witness (medical expert): Yes, on [date]. No abnormalities were detected. Defence: The injuries were only discovered by X-ray when [victim] was admitted? Witness: Yes. Judge: Can you please ask the witness what she observed, and not what you say she observed?’ (Taylor/Loams trial). In asking witnesses questions, judges will tie up loose threads and ambiguities. ‘Victim: The defendant got out of the car and grabbed my brother … I found out he was being slashed across the face. Judge: Can you go back a bit; “I found out” doesn't necessarily mean “I saw”. Prosecution: Did you see … ’ (Lane trial). Towards the end of the trial the judge commented, while questioning a witness, ‘I feel sure that (defendant) would have been severely injured or killed if he hadn't had a penknife or whatever’ (Lane trial), an instance of direct evaluative comment.
Judges must also negotiate victims' feelings. Here the judge needs to clarify an injury, ensuring jurors are fully aware of its extent and effects, without siding with the prosecution's interest in emphasizing its seriousness or intimating to the victim whether he regards her as disfigured. ‘Jury given photo of victim the day after her lip was bitten off. The judge then looks over at her … Judge: Does it still hurt? Victim: Yes. Judge: It does look a bit thinner than the rest’ (Searle trial). This is a victim whose request to appear behind a screen had been rejected. Her reason was given as not wanting to be seen by the defendant. An alternative explanation is that she was acutely aware of her spoiled appearance. The victim's sensitivity also related to her treatment for alcoholism, which was relentlessly exploited by the defence. ‘Defence: Is it true that since then you have continued to drink to excess? //Victim: No! Judge: How much had you had to drink on this occasion? Victim: About a bottle and a half of wine. Judge: Between the two of you? Victim: Yes’ (Searle trial). The judge's second question established an amount not unusual when shared. Reputation denigration was plainly central to defence tactics, the effect of the judge's interventions being to even the balance; shortly after, he occasioned a clarification of her response to a double-barreled question whose second part (‘you … accepted it was an accident’) would have wholly undermined the prosecution case (Searle trial).
(p. 156 ) This was a witness displaying clear signs of vulnerability—the request for a screen, intense blushing, and crying while on the stand. Interventions here contrasted with the treatment of the affluent parties to another domestic assault. The father-in-law is the direct victim, but one might perceive two other victims at court—the mother-in-law, ill with cancer, and the wife, under heavy medication for stress—both of whom were continually overwhelmed emotionally during testimony. Yet here the judge's interventions had a very different character.
After the defendant's estranged wife was similarly warned she gave a string of ‘I don't know’ responses that were increasingly implausible, culminating in her not knowing where her children slept on the night of the incident, despite agreed evidence that they were with her. Pressed on this, she became extremely upset and finally shouted ‘what is the relevance of where the children sleep?’ The judge told her to calm down, listen to the questions, and answer after thinking. She paused for some time, finally saying she could not remember. While this may have reflected upset, another impression was of mulishness to pay back the judge for his reprimands. The difference in the judges' approaches may relate to the strong tendency of the trio to talk back, regularly challenging defence counsel and judge, unlike the victim in the previous illustration. The latter appeared cowed and distressed, whereas the affluent trio responded to upset by sarcasm and resisting court conventions.
Judge: And is that how you found out what they were arguing about? Victim: Yes, that was how I found out what was going on as I went outside. Judge: Now, can you please try and confine yourself to yes or no answers. Victim: But I can't, it's not as simple as that. Judge: Yes it is, if you are asked whether you were outside at a certain point the answer is either yes or no. Victim: But//Judge: Mr. [victim], that is the only way this case can move forward, if you listen to the questions properly and then answer just what you have been asked. (Woodward trial.)
Judges' summing-up involves directing jurors to key features of the defence and prosecution case and is done by referring at a slightly more abstract level to testimony and evidence. ‘I use the word “blow” without any prejudging. We know a blow was delivered but you have to decide why it was delivered and whether it was with a flat palm or clenched fist’ (Booth trial). Judges will often interpret for jurors how a broad principle applies to (p. 157 ) particular evidence. ‘Judge: Your task is to decide the facts of this case. Once the facts are decided you must then apply the law … You must not decide guilt on whether you feel the defendant has lied on a side issue such as why he had the knife. Innocent people do lie. People lie for all sorts of reasons, through fear, trying to beef up a perfectly good defence’ (Lane trial). Judges' summing-up also identifies relevant and irrelevant evidence.
Judges explain majority verdicts, and direct juries to acquit when the prosecution offers no evidence or a plea are accepted (‘Judge: You no longer wish to continue on count 1? Prosecution: No, Your Honour. Judge: (to jury) There remains protocol to go through. She is in your charge. I have to direct you to return a verdict of not guilty on count 1, and guilty on count 2. Madam nearest to me on front row, would you be forewoman?’; Henley trial).
You may not be able to forget that [victim] ended up on the floor with some nasty injuries. But that does not mean that someone is criminally liable. You have heard that [defendant] is a Loss Prevention Manager at [super-store] which is a very responsible job and means lots of contact with the police. He is of previous good character. You have heard from his brother, a serving police officer. He said his brother is a gentle man and that these charges are outrageous. You must disregard it. (Booth trial.)
Humor is part of the judicial toolkit. Judges quite often utter whimsical asides, largely during delays, but also at other times, as when jurors had trouble manipulating a map exhibit. ‘Judge: Perhaps to save your nails you should use one of these things (Waves stapler about, jury laughs)’ (Carr/Macdonald trial). Lighthearted comments often have an explanatory element. During one pause the judge filled in by explaining why he asks for police notes (disputes over recall), calling it his ‘commercial break’ (ibid.). Even ironic emphasis on a single word can sound faintly humourous, such as the emphasis on ‘really’ in a judge's dismissal of a victim who had had to be recalled. ‘Mr [victim], you really are released from this court’ (ibid.). A joke may be at counsel's expense. ‘Prosecution: When you say a blow to your face what do you mean by that? Judge: I expect he means just that (muted jury titter)’ (Crabb trial). Counsel and judge may work as a double act. ‘Witness (detective): Mr [victim] is an elderly Asian man. Defence: He is only in his 50s! Judge: Thank you!! (smiling; jury laugh)’ (Hines trial). As well as raising a laugh this negated a lily-gilding (p. 158 ) attempt by the prosecution witness. The attack was unprovoked, the victim was from an ethnic minority, and the defendant was mentally ill. There was no need to add old age to the picture. Most humour is very mild one-liners. Here a judge exploits the double meaning of the word ‘try’ to defuse irritation at delay caused by changes in the defence case. The judge seeks to keep going while a witness is recalled. ‘Judge: That is OK. Who will we try next (with a smile)? Prosecution: We shall try [name]’ (Lane trial). After several further delays the judge earns a laugh from the jury with ‘if I get used to apologizing then you could be used to the delays’. Counsel can also be droll. ‘Defence: I do not mean this as a discourtesy but I noticed you wear glasses. Were you wearing them that day? Witness: No, but these are for reading. I have to look over them to see you. Defence: I understand that and I hope it gives you as much pleasure as possible to see me (everybody laughs)’ (Lane trial). Conferrals are mostly serious but occasionally are leavened too, as where witness problems meant the court's day might go short if the prosecution finished its case and the judge told the prosecutor not to go slowly ‘just so that it looks better’ (Maguire trial).
Jokes against the legal profession help particularly to defuse tension, as professionals can appreciate them as insiders and lay participants as those exposed to the effects. ‘Defence: She was quite happy for the baby to be … admitted [to hospital]? Witness: Yes. Defence: Forgive me, for lawyers have a habit, if anything is worth saying then it is worth saying three times. Judge (dryly): I had noticed it myself’ (Taylor/Loams trial). The whole court laughed a valuable punctuation in a technical, and tense, child cruelty case. One judge attested to the value of quips against legal conventions as a device to overcome anxiety and confusion. ‘Sometimes … a witness is bewildered and I will seek to explain and allay problems that way. I will often use the phrase “you may not understand this very well but the law, like all sorts of organizations, has its own funny little ways and this is one of ours”. That tends to make them laugh and then they forget it’ (Judge 5).
The jury's function is ‘to assess the credibility of a witness, to measure the weight that should be given to any piece of evidence, and to determine the existence or non-existence of the facts in the case’ (p. 159 ) (Uglow 1997: 56). They must apply the facts to the legal issues, as briefed by judges, and reach verdicts by applying the ‘burden and standard of proof’. Uglow notes specifics that make this a challenge. Jurors may be told they are ‘entitled to use an accuser's confession as evidence against that defendant but not as evidence against a co-accused; that the previous convictions which have been put to the defendant in cross-examination are not evidence of guilt but simply go to the defendant's credibility; that a previous statement consistent with present testimony is not evidence of the facts but can merely enhance the weight the jury might give to that witness's evidence’ (ibid.: 56–7). The formal distinction between juror as ‘truer of fact’ and judge as arbiter of law may be blurred, because ‘the definition of many offences includes legal concepts which masquerade as “facts” ’ (ibid. 57). A jury is a highly artificial social creation, brought together almost randomly, a social group with no independent existence, convened for one purpose and comprising people who are unlikely ever to do the same thing again. As a temporary creation there are none of the elements that support less temporary social groups; the role to be played is obscure, and there is no culture of ‘jerrying’ to give guidance. Since 2002 an official website (www.cjsonline.org) has provided a ‘virtual tour’ of the physical environment of courts, and introduced jurors to procedures. ‘Juror online’ is a worthy idea but only if jurors are told of it in advance and have internet access.
Indications of juror perspectives were apparent at interludes in trials. Jurors commented that they had had ‘no real idea what to expect’, that briefings were limited and had not given an idea of what they would have to do. Some resented being sent out during conferrals, some found rituals and courtroom architecture ‘quite daunting’, and there was technical evidence that was not understood but about which clarification could not be asked. One discussion amongst jurors indicated frustration that, although convinced of guilt, they felt obliged to accept defence counsels' line that there was insufficient evidence to satisfy legal requirements and the time when photographic evidence was taken did not square with agreed characteristics of the setting. In the same example, a ‘brilliant’ performance by counsel swayed jurors, in another case, technical knowledge coincidentally held by a juror had much influence.
Court conventions deny jurors normal interpretive resources. The main conversational resource for checking a recipient has (p. 160 ) understood is the recipient's next turn at talk. The speaker ‘inspects’ the recipient's response for understanding. If lacking, repair can be made in a third turn in the sequence (Drew 1992: 475). This resource is denied the jury. They must write a note and act through the judge. Since jurors cannot otherwise indicate understanding of a witness, counsel may be unsure if they have seen the significance of witness responses. This gives counsel the opportunity to emphasize the witness's answer by repeating all or part of it. In conversation such repetition indicates that recipients doubt the correctness of what was said, and is used to invite repair. In court it is exploited to enable emphasis, either to endorse or impugn. Moreover, in general conversation, disagreements are marked by a special property: they are delayed, by pauses or by preceding the disagreement marker with some other remark, vital parts of the cooperative function that allows talk-based interaction to proceed. Courtroom questioning breaks this fundamental form.
Judges suggest that the jury is less the passive observer than in the past. The formal position may be as the judge suggests in the following, but in practice the jury's role is heavily constrained. ‘Defence: Your Honor, my position is that three counts is an absurd situation for a jury to consider. We would like you to decide on one or two at the most. Judge: Not in my court. The jury is here to interpret the law and decide what indictment’ (Searle trial). Whatever construction of ‘interpretation’ the judge may have intended, when indictments are changed the jury may perform the formal element but it is on advice from the judge after consulting counsel. The only mechanism to exercise an active role is the jury note. Quite often the jury does not get what it sought. For instance, a jury piecing together the sequence of events in the murder case wanted to know if the victim was right- or left-handed. The judge told them that because this was not addressed by counsel in evidence ‘no answer can be given’, but added ‘it is only right (the jury note) should be read’ (Adams trial). Prior to denying a jury request the judge in another trial told counsel ‘juries often get confused as to why they can see police interviews but not statements taken shortly after the incident’ (Good all trial). Many queries elicit a simple statement of law. ‘Judge: Your question refers to “by beating”—beating has no special meaning in law. Although it conjures up all sorts in your minds, all that is required is the application of force, no matter how slight’ (Thomas trial).
(p. 161 ) Judicial response to jury questions varied, with some clear instances of active discouragement that would take confident, assertive jurors to resist. As this conferral suggests, there may be good evidential reasons for not answering a given jury question but the preamble to this is a general assertion by the judge that puts jury notes on tenuous ground. ‘Judge: I will tell them that it is not their duty to ask questions, but the question is, would you like me to read it out? (Note is read by all three counsels—jury want to know if what appeared to be colic could be something else. Judge and prosecution agree that witness cannot answer the question, as she never saw [victim] when she was suffering from colic)’ (Taylor/Loams trial). In other instances jury questions prompt serious engagement. Here it may be because the jury is pondering verdict and the question concerns the exact circumstances revealed in witness evidence:
Note that counsel and judge consult legal authority to work out the answer to the jury question. With the jury present the judge then answers the question. ‘To prove recklessness, I can do no more than tell you what I did before, that he, the defendant and no one else, not you nor me, realized that his wife would be subjected to unlawful force and was reckless as to whether that would occur’. Judges actively interpret jury notes so that they address what the judge identifies as the central issue.
Note from jury—‘what happens if we believe he didn't intentionally hurt her but was reckless in the way he held the machete?’ Counsel and judge refer to Arch bold. Judge: Recklessness means that he knew harm might occur to his wife no matter how slight. Defence: Can you emphasize that it is what the defendant realized. Judge: By simply holding a machete that is not enough, but if he realized that she might be harmed, that is, suffer unlawful violence, then he was reckless. But we can speculate forever. (Thomas trial.)
Despite the constraints under which they operate, juries often identify key points through their questions, even if there are legal reasons questions cannot be answered. On occasion they elicit clearly material responses that lawyers have missed. ‘Judge reads note out. “How far was it between the robbery and assault?” Witness: About 15–20 meters. Judge: Just across the road effectively? Witness: Yes’ (Hogan trial). Indeed it was a juror that noticed a key word in a defendant's statement that had been missed by counsel in the armed robbery trial. The note asked why he had returned to his (p. 162 ) girlfriend's flat (he claimed it was to collect his hat and the jury wondered why it was so important as he was disqualified and returning increased the risk of being seen driving), and why his statement said ‘he went to [town] to score—what does “score” mean?’ (McCann trial). The drug reference explained several circumstances, with the defence later referring to the role played by ‘an eagle-eyed member of the jury’.
Juries asking pertinent legal questions must wait until the court decides they can have an answer. ‘Note: Want to know if robbery has to have taken place for robbery to have happened, or could it be an attempt. Judge: This is a robbery case, not an attempt. The elements needed will be explained to you in due course’ (Mason trial). The jury insisted, and eventually succeeded.
A further note sought guidance on how to proceed if they could not decide who initiated the incident, with counsel complaining to us that it was more like an academic debate than a trial. The aside indicates the frustration felt over the jury's insistence on clarifying the circumstances on which to make its decision.
Note: Clarification—is belief enough to convict? Even though evidence insufficient? Prosecutor and judge read the note differently. The judge's reading that it concerns the victim's belief he was under threat prevails … Judge: The question asks whether [defendant] made [victim] in fear of the use of force. It is the state of mind of [defendant] that you have to consnider … Next note: If we believe that he is guilty is that belief sufficient? Next note: If we believe [victim] was afraid, but there was no robbery then is it an attempted robbery? Judge: No. If you are not sure that the prosecution has proved their case … Jury enters into question and answer session with Judge. Note: Does this then lead us to who we believe? Judge: Yes. If you don't know why they [victim] believe then you must acquit. (Mason trial.)
A very experienced judge perceived a range in juries' attitudes to asking questions. ‘You get juries which ask questions, [in which case] … they tend to ask lots of them, and juries that don't ask any questions … What they tend to do is bottle it up, wait until they've been sent out to consider and then send in their series of questions which they should have asked while the witness was the … So the problem with juries is they're perhaps a little fearful of interrupting proceedings’ (Judge 5). Ushers assisted jurors in asking questions. ‘They are told when they come the first day that they can but they are always too nervous to ask questions or write them down. They'll often ask you on their way out “Oh can you so and so?” (p. 163 ) and I say “Write it down” and once one has written it down everybody else questions’ (Usher 5).
Violence is intrinsically disturbing, but violence cases can be surprisingly trivial. One of our ABH cases resulted in minor bruises, yet involved a lengthy conferral following a jury note, with legal authority consulted. Others involved a scratch to the chest, and skin abrasion on a thumb. To have reached a crown court and jury, the injury must have been to dignity, or personal relations, more than to the person. Judge and counsel may feel it is particularly in such circumstances that if great care is not taken—including peering again at legal authority they have long since learned by heart—an appeal is likely. Parties who have made a minor injury subject of the full weight of the law may be sufficiently disputatious to carry on until satisfied. But it is also a matter of the system's ‘deal’ with jurors. Here are a dozen disinterested parties called from their normal occupations to sit in judgment, and expecting to encounter compelling reason for it. To over-characterize the business of violence cases, jurors are likely either to encounter cases where violence is a regular part of the lives of all involved (punch-ups amongst pub regulars, street-people and prison inmates), a depressing feature of domestic relationships that should long since have been dissolved, or reflect the spectacular over-sensitivity of people so unfamiliar with the real world that a broken cuticle is cause for jury trial. Consulting Arch bold in response to every query seems the least the court can do to reassure a jury that their time is not being wasted. Of course, this says nothing about the feelings involved, but it is at times useful to look past the fabric so indulgently woven by lawyers whose job is to make a case by any means at their disposal.
Judges were aware how hard it was to divine a jury's thinking, and worried that juries might not grasp all that they should. ‘It's not always the case that judges would be aware of people's dissatisfaction … Having sat through [the case] occasionally the jury raises questions that indicate perhaps there have been things they don't understand … Whether that's reluctance on the part of juries to write the question or it's because they genuinely understand one can't tell’ (Judge 1). The judge felt violence cases were especially easy to grasp but the problem of self-defence he then cited (and the practice of lunging for Arch bold) suggests otherwise.
(p. 164 ) Questions that come forward in cases of violence are not usually concerned with terminological issues because the jury will accept that the charge they have in front of them is the one they have to deal with, they won't know that there are other gradations of violence. Unless they're told by the judge. The more usual query one gets would be in relation to self-defence, the concept of it and whether it should or should not be found on the facts of the material case. The jury … quite often ask the judge to tell them whether it's self defence or not. Sometimes [they] don't appreciate that's not my job, it's theirs. (Ibid.)
Although juries are often told by judges that ‘we have trial by jury, not by judge’ and that they are ‘judge’ of the evidence, juries must form the impression of significant constraint on their role. The most substantial is compositional, with judges deciding whether a juror, or jury, should be dismissed. Two days into an aggravated robbery trial the judge dismissed the jury and restarted the trial ‘after a witness entered the court shouting “that's him, he did it” ’ (Bolt trial). In the bondage case the entire jury was dismissed despite the juror who was a Scout leader having no connection to the scout group in question. Nevertheless both counsel applied to discharge the whole jury ‘ “due to bias or the mere possibility of bias”. Judge: I see no reason why he should be biased and I would like very much to refuse the application but I am aware another court may not agree and therefore I will dismiss the whole jury … I only take this course very reluctantly’ (Chase trial). Decisions to dismiss substantially relate to the defence view. Following a jury note a jury was sent back into the jury room with a warning from the judge ‘And don't any of you talk about the case at all’. A juror had taught a police witness. After conferring with his client, defence counsel requested dismissal. The judge ordered the juror be isolated, explained to the other jurors, and discharged the juror (Childs trial).
Not all connections are cause to dismiss. An Afro-Caribbean defendant faced an all-white, late middle-aged jury, a matter that was sensitive in several trials. The defendant said that he thought he knew a juror as someone that had served him in a shop. The juror remained, after each juror and witness was asked if they remembered serving the defendant (Lane trial). We asked another black defendant whether he had told his lawyers what he felt about the jury's composition. ‘No, you have a choice but what choice do you have? You can only eject two or three members of the jury but they (p. 165 ) are all white so who can you eject, you know what I mean? … They was all white which … wasn't quite right for something like this [racially aggravated assault]’ (Goodall interview). The common law principle that guilt is decided by peers from the general community is placed within an operating sphere that is very much the province of the legal professional. (p. 166 )