Dilemmas in the Courtroom

A Study of Trials of Violent Crime in the Netherlands

Martha L. Komter

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000149319
• Edition: 1
• Topic: Languages & Linguistics
• Subtopic: Communication Studies
• Index: Languages & Linguistics

Interactional dilemmas occur when participants are required to engage in two contradictory activities at the same time or orient to two conflicting goals. The existence of such dilemmas provides a context for interactants to be creative, pro-active, and indeed strategic as they maneuver between the numerous demands placed on them and produce behavior that fits the ongoing communication episode. Trials are one such episode in which the various participants -- in this case, the judge, the defendant, and lawyers -- experience interactional dilemmas and work to resolve these through their behavior. This volume offers an analysis of both the institutional factors which promote dilemmas during court proceedings and the interactional behaviors used by trial participants to navigate these dilemmas. Using ethnomethodology, conversation analysis, and ethnography as complementary methods, Komter's research combines an understanding of the legal rules for courtroom procedure and crime descriptions, with details of actual trial discourse. The analysis is based upon fieldnotes of 48 trials and audiotapes of 31 trials, all related to violent crimes and occurring in courtrooms in Amsterdam, Utrecht, and Haarlem. Dilemmas reflect enduring conflicts of interest or values; they derive from the ongoing institutional and interactional positions of the various courtroom participants. Komter points to the existence of dilemmas and to their role in shaping unfolding interaction during the trials. She especially highlights the different dilemmas faced by judges and suspects, and the ways in which behavior on the part of one constrains that of the other. She further reveals the wide variety of ways in which interactants handle dilemmas -- their innovativeness and resourcefulness -- and the consequences these have for the unfolding interaction and the court's ultimate judgment. Of course, dilemmas are not only relevant to an understanding of judicial interaction. This study has implications for other contexts, since concerns with credibility, blame, responsibility, and morality -- and their opposites -- are incorporated into many everyday interactions. This volume examines behavior that is quite specific to a single context, yet its conclusions bear upon a wide range of communication events. Of interest to scholars in communication, linguistics, anthropology, criminal justice, or those with interests in ethnomethodology, conversation analysis, and ethnography.

1

Fact Finding

In all the trials I observed, suspects were treated and conducted themselves as if they wanted to avoid or minimize punishment.¹ These assumed interests have a pervasive influence on the events in the courtroom. It has been proposed that people act on the assumption that the less someone has to gain by a statement, the more it can be credited (Goffman, 1970). By the same token, it is assumed that suspects, who have a lot to gain by avoiding or minimizing their punishment, are potentially unreliable sources of information. The law recognizes the suspects’ interests in their right to silence and, more implicitly, in the fact that suspects are not required to swear an oath that they will tell the truth. At the same time, suspects are an important source of information in the courtroom. Thus, judges must discover the “truth” from a potentially unreliable source, and reversely, suspects must convince the court of the veracity of their version of the events in spite of the interests they are assumed to be protecting.

An important resource for managing these problems is the distribution of knowledge. Three types of knowledge are discussed in relation to the suspects’ assumed interests and the credibility of their reports: firsthand knowledge of “the facts”; substantive common knowledge, and strategic common knowledge. The distinction between substantive and strategic common knowledge has been made because common knowledge includes knowledge about what types of individuals can be expected to have what types of knowledge (Berger & Luckman, 1967), what kinds of information one can hide from whom (Goffman, 1970), and what kinds of information one can reasonably claim to have forgotten (Bogen & Lynch, 1989). Thus, substantive common knowledge comprises the shared knowledge about social structures and relationships, whereas strategic common knowledge refers to shared knowledge about what strategies boost or undermine credibility. It should be pointed out that although these three types of knowledge are discussed separately, they cannot be strictly separated. The facts are only relevant when they are interpreted and interpretations rest on common knowledge. Knowledge about what strategies contribute to, or detract from, one’s credibility is also shared, although it must remain unspoken. In this chapter, first the dilemmas contingent on fact finding are identified by examining the interplay between the rules of evidence (and the right to silence) and everyday conversational mechanisms; next the ways in which the participants manage these dilemmas in the ongoing interaction are investigated.

¹ This does not necessarily mean that they have these interests. Suspects may want to go to prison to do time for someone else or to seek shelter or medical care. My point is that the participants in the courtroom treat the suspects as wanting to avoid or minimize punishment.

Institutional and Everyday Rules

The first question that the court must answer on the basis of the indictment and of the information brought forward in the trial is whether it has been proven that the suspect has committed the offense he is accused of as described by one of the sections in the Criminal Code (Code of Criminal Procedure, Section 350).² To answer this question the law provides rules of evidence (Code of Criminal Procedure, Sections 338–344), and rules governing the ways in which the examinations are to be conducted (Freedom of deposition and right to silence, Code of Criminal Procedure, section 29.1). The rules of evidence that govern the discovery of the truth in the courtroom focus on the sources of knowledge of the judge, the suspect, and witnesses. The fact that the evidence can only be brought forward by those who have direct knowledge of the events contributes to the establishment of the truth, but also protects suspects from wild and unsubstantiated accusations. Similarly, the suspects’ right of freedom of deposition and their right to silence simultaneously promotes the establishment of the truth by the recognition of the truth value of voluntary statements and protects suspects from too coercive forms of questioning and from incriminating themselves. In the following sections, I discuss the impact of the rules of evidence and the right to silence on the one hand, and everyday conversational mechanisms, on the other hand, on the establishment of the facts.

² As all the suspects in the data are male, I refer to a suspect as “he,” even when used generically.

Evidence and Knowledge

In the Netherlands, a sole confession by a suspect is never enough for a conviction; the court needs at least two pieces of legal evidence or one when it concerns a deposition by a functionary of the law (e.g., a policeman who has caught the suspect in the act) who is bound by his oath of office. The evidence may consist of the testimony of the suspect and witnesses as laid down in the suspect’s dossier or as brought forward in the courtroom, with the requirement that all the pieces of evidence that have a bearing on the verdict must have been mentioned in the trial. However, the proof that the suspect has committed the offense can only be accepted by the judges if they have acquired a conviction of guilt (Code of Criminal Procedure, Section 338.1). Thus, whatever the number of the pieces of evidence, the judges’ conviction of guilt is the decisive factor in declaring the suspect’s guilt. The Dutch laws of evidence make a distinction between two kinds of knowledge that are consequential for the value of the evidence. That is, only those statements of suspects or witnesses are admissible as evidence that are based on firsthand knowledge or direct observation;³ “facts of common knowledge” need no further proof (Code of Criminal Procedure, Sections 339–344). Firsthand knowledge or direct observation is considered to be the most straightforward link between an event and the report of it; facts of common knowledge reflect the body of knowledge that every competent member of society is assumed to have about social relations and structures. The laws of evidence, by requiring at least two pieces of evidence, assume a potential disputability of the facts. By stating that facts of common knowledge need no proof, the laws assume a consensus about these.⁴ It has been shown that this distinction between firsthand knowledge and common knowledge is particularly relevant for the participants in the courtroom (Bogen & Lynch, 1989), but it is also a more general feature of storytelling (Benson & Drew, 1978). The distribution of knowledge has been mentioned as a powerful interactional resource. In interaction, people design their utterances on the basis of what they think their conversational partners know (e.g., Goffman, 1970; Goodwin, 1981; Komter, 1991a; Labov & Fanshel, 1977; Pomerantz, 1980). Someone who tells a story on the basis of firsthand knowledge can be held accountable for its truthfulness; reversely, people cannot be held accountable for the veracity of a story they have on hearsay. The significance of common knowledge resides in the fact that people hold one another accountable on the basis of a socially shared stock of knowledge, which enables them to produce and recognize ordinary social events (Garfinkel, 1967).

³ For expert witnesses, such as psychiatrists or ballistic experts, the requirement is that their testimony should be based on their professional knowledge.

⁴ However, jurisprudence shows that facts of common knowledge can also be disputed. For example, the supreme court has established that it is a fact of common knowledge: “that kicking the head of a baby with a shod foot is extremely dangerous;” and “that the risk of slipping is greater on a wet road than on a dry road” (Supreme Court Rulings in 1963 and 1961).

Rape cases are notoriously difficult to prove, because they usually must be judged on the basis of two conflicting statements: one of the alleged victim and another of the alleged perpetrator. The most common plea of the suspect is that he admits to having had sex with the woman but denies that it happened against her will. In the following dialogue the judge confronts the suspect with the statements made in his dossier:

(1)

J: You have told the judge of instruction she initially agreed, ((reads from dossier:)) “but when I said that I wanted to continue without a condom, she didn’t want that but I still went ahead.” Is that so?

S: That’s not so.

J: Then I put it to you that you have stated it like this to the judge of instruction.

S: Yes.

J: And uh going ahead while someone doesn’t want to, isn’t that then uh actually simply against her will or do you see that differently.

S: Well against her will, she never did it against her will.

J: Hm. (15, 5)⁵

⁵ Transcription conventions:

J	judge
S	suspect
C	defense counsel
P	public prosecutor
underlined	stress
(parentheses)	unclear utterance
((double parentheses))	transcriber's note
(24, 5)	for example, trial no. 24, p. 5 of transcript
(013)	citation from observed trial, not on tape
. full point	falling intonation
, comma	slightly rising intonation
? question mark	rising intonation
(1)	for example, pause of 1 second

The translations of these dialogues have been made to capture the conversational style of the original Dutch text. The names have been changed.

Although in court the suspect denies forcing the woman to have sexual intercourse, the panel of judges can avail themselves of the suspect’s earlier statements as recorded in the dossier. The presiding judge explicates this by putting it to him that the suspect’s earlier statement suggests force, anticipating that this may later be used in evidence. Together with the alleged victim’s statement this would constitute sufficient legal proof for finding the suspect guilty. Moreover, the judge continues to explicate on what grounds his conviction of guilt can be built. He formulates this in terms of the plausiblity of the ...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• Editors’ Preface
• Introduction
• 1 Fact Finding
• 2 Accusations and Defenses
• 3 Explanations and Understanding
• 4 The Restoration of the Moral Balance
• 5 Conclusions: Dilemmas in the Courtroom
• Appendix: Original Dutch Examples
• References
• Author Index
• Subject Index