SLSS1001 Court Observation Report

The courtroom is a ritualized space, involving costume, language, spatial organization and
so on, and courts, therefore, constitute performative exercises of power. Discuss some of the
ways in which courts demonstrate power and/or power relations.
The courtroom is very much a ritualized space that embodies the intricacies of the judiciary. It
is the heart of civil and criminal matters. Courtrooms consist of a rigid hierarchy in which
deference to the judge or magistrate is, above all, paramount. Courtrooms, therefore, constitute
performative exercises of power in which everyone- from the judges/magistrates to the gallery,
to the lawyers and court personnel- are players. Power is a central theme in the courtroom: the
imbalance between a casual observer and the more experienced players (i.e.
judges/magistrates and lawyers) of the court are evident. Language, judges and sentencing,
lawyers themselves and court attire are all ways in which we can observe displays of power and
power relations. I was able to catch a glimpse of the complicated workings of court whilst
observing Downing Centres Court 3.1, otherwise known as the Short Matters Court. I took a
variety of notes in the two and a half hours I spent observing court, which have served me well
in writing this report.
From my observations, I was able to view the power held by a Judge in a district court. The first
thing that I noticed, after observing several cases, was that this particular judge was
remarkably efficient and incredibly fair in his sentencing. He did not allow the manipulations
of the barristers sway him his reasoning and sentencing. In two cases that dealt with
mandatory minimum sentencing, he was unwilling to go against parliamentary ruling, thus
exercising judicial restraint. Although the barrister attempting to distinguish her case, by
remarking on several of her clients positive attributes, the Judge followed through with the
established precedent. He cited a case earlier that morning which had similar circumstances
and the same ruling and stood by his decision. This case was particularly interesting to view, as
it was an exercise in power displays between the barrister and the judge; the barrister was
attempting to sway the judge with extraneous details, and the judge was staunchly unmoving in
his views (admirable, as the Judge was attempting to be as fair as possible and explained his
reasoning at length.) The judge takes an active role in proceedings, presiding over the court
and making fair judgements based on the facts.
This display ultimately affirmed my knowledge that judges are the supreme authority in the
courtroom. He was able to apply the law in a rational and objective manner (Smith & Natalier
2005) by presenting his reasoning and rationale clearly and concisely and not not overly formal
language (perhaps conscious of the many people seated in the viewing gallery). By
summarising the case and providing explanations for the public gallery, the judge was able to
lessen the disparity of power, as people with no prior knowledge of the case were able to be
informed of the facts. This is an important point to note, as many casual observers are unable
to follow the line of reasoning in most cases; the fact that the judge took the time to deliberate
and discuss matters with the barrister is of much import.

Nevertheless, the power does lie in the judge: further evidenced symbolically by his high
position in the court looking down upon the rest of the courtroom, while observers and lawyers
and other players of court are constantly in motion around him. I observed that several lawyers
spoke the phrase May it please the Court, when referring to a specific piece of evidence or
when attempting to negotiate with the judge. Could this be because
the judge is the embodiment of the court? (Sanson, Anthony & Worswick 2012) Rather than
seeing the court as an institution, we see the body of power invested in the judge. This
statement further emphasizes the power held by a judge in a courtroom.
When the judge entered the room, all the people in the court immediately stood up, thus
granting deference to his presence (Carlen 1976). Deference is shown to the judge using
ceremonial courtesies and complimentary addresses and references, as well as their entrance
and exit being marked by ceremony (Carlen 1976). Titles such as Your Honour are used to
address the judge, exalting the judge and further emphasizing the power they hold over the
entirety of the court. Our eyes are instinctually drawn in their direction, and when they speak,
the court quietens to listen to their words. Our respect for the judge is informed by habitus,
perhaps unconsciously we view the judge as an ultimate figure of authority and strive to
acknowledge his authority with formal titles and bows. A curious thing I noted was that whilst
all the lawyers and the majority of the public gallery bowed to the judge in some form or
another, there was many that failed to do so. Is it habitus that has us bowing to the judge each
time we enter or leave the court? Could a refusal to abide by the silent laws of the courtroom
be, in fact, a type of rebellion against authority? Refusing to acknowledge the judge could be a
way of defying the powers structures inherent in the courtroom.
A cursory glance of the courtroom reveals one, startling fact: the majority of the lawyers and
viewing gallery are, in fact, male. True, there is no shortage of female lawyers, but the fact
remains that males outnumber females. Could this be because of traditional ideals held about
the competency of female lawyers? The court was previous a mans domain, and so it can be
argued that the balance of power remains skewed in men's favour (Hon Kenny 2001). Outside
the courtroom, I observed the interactions of group of barristers casually formed in group and
engaging in discussion. I noted that the men tended to group together, and women sought the
company of other women (although they interacted with male barristers as well). Inside the
courtroom, there is no difference between male and female lawyers; in one particular case, the
female defense and the male prosecution were frantically lobbying words across the court,
attempting to catch the attention of the judge. Could this be the politics of gender in the
courtroom at work? I observed how female and male lawyers received the same amount of
attention and consideration from the judge. However, this could be a result of the fairness of
the judge, in that he chooses not to discriminate. Female lawyers in the courtroom must be
acutely aware of their actions and their words, and may even have more to prove than their
male counterparts: their competence.
Another aspect of the courtroom that intrigued me was courtroom attire. It is almost a
costume of the actors on the stage, i.e. the lawyers and judges. The majority of persons in
court were appropriately attired in formal dress: for the barristers, this means flowing black
robes, white bands, bar jackets and horsehair wigs. Most of the lawyers and people in the
public gallery wear formal attire as well. The defendants usually wear informal attire, or

perhaps this is only because their case is being heard in the short matters court. The judge, of
course, wears full formal attire in a red robe with white bands and a wig. The role of this formal
attire is so they can project visual images of themselves personifying the absolute propriety
of their situated actions (Carlen 1976). Lawyers and judges have images to uphold, and a
certain stereotype to fulfill with their attire. With their attire, comes an air of authority, it lends
them credibility, and it lends their arguments a certain gravity and seriousness.
The wigs and robes are part of a long tradition that seeks to distinguish the players of the court
from the ordinary observer. I took copious notes on the attire of various individuals that I
observed in court. What surprised me was the fact that many non Anglo-Australian individuals
(including defendants and public observers) were not dressed in formal attire. Is this, again, a
form of rebellion against authority by refusing to conform to the ideals of the courtroom?
Nonetheless, it is quite evident that court attire is crucial in judging a person; what the person
chooses to represent in the form of their clothing is, ultimately, what remains in others minds
to form an opinion on them. The majority were dressed in muted or neutral colours, nothing
bright or eye-catching; the judges robes are red, so perhaps this colour scheme is meant to
draw attention to the judge? Yet again, the focus of power is centred around the judge.
Courtrooms consist of performative exercises of power that can be conveyed through costume,
judges, sentencing and lawyers. The power relations and disparities in court are highlighting
through careful observation and perusal of facts, supplanted by research. Courtrooms exist to
exhibit the power of judges as they adjudicate disputes and administer justice (Sanson,
Anthony & Worswick 2012). Lawyers play their part in prosecution and defense, the
defendants either plead guilty or plead innocent and assume the burden of proof in proving
their innocence, and the public gallery stands as an observer to it all. From what Ive observed
in the courtroom, and gleaned from various sources, the courtroom is a space for maneuvers,
persuasion, complex power-plays and delicate balances; power is constantly shifting from one
player to another with the judge as the locus.

References

Carlen, P. (1976) The Staging of Magistrates Justice British Journal of Criminology,

vol.16, no. 1, pp 48-55.

Hon Kenny, S. (April 2001) Outsiders on the inside: different guys, new voices and
the making of the Australian judiciary Marjorie Smart lecture, St Hildas College, University of
Melbourne, Federal Court of Australia, <http://www.fedcourt.gov.au/publications/judgesspeeches/justice-kenny/Kenny-J-200104.rtf> (accessed 7th April 2014)


Sanson, M; Anthony, T; & Worswick, D. (2012) Connecting With Law, Australia:
Oxford University Press, Ch 4 Legal Institutions: How is law made? p. 93, p. 379

Smith, P. & Natalier, K. (2005) Understanding Criminal Justice: Sociological

Perspectives, London: Sage, Ch 4 Courts & personnel, pp. 121-66.