Abstract
The dominant image of judicial authority is emotional detachment; however, judicial work involves emotion. This presents a challenge for researchers to investigate emotions where they are disavowed. Two projects, one in Australia and another in Sweden, use multiple sociological research methods to study judicial experience, expression, and management of emotion. In both projects, observational research examines judicial officers’ display of emotion in court, while interviews investigate judicial emotional experiences. Surveys in Australia identify emotions judicial officers generally find important in their work; in Sweden, shadowing allows researchers to investigate individual judicial emotion experiences and expression. Evaluating the different methods used demonstrates the limitations and effectiveness of particular research designs, the value of multiple methods and the challenges for researching emotion.
The dominant image of judicial authority is dispassion, and its associated performance is required to be affectively neutral. These qualities are thought to be essential to performing and communicating the central legal values of neutrality and impartiality (Mack & Roach Anleu, 2010; Wettergren, 2010). Emotion is viewed as inherently irrational thus inconsistent with the legitimate exercise of judicial authority (Maroney, 2011a). However, judicial work inevitably involves considerable emotion. This tension presents a challenge: how to study emotion in a space where it is claimed to be absent? This article examines ways in which different methods can be combined to investigate judicial officers’ experience, display, and management of emotion.
There is a growing body of research on emotion and law (Maroney & Gross, 2014). Empirical studies of emotions in criminal trials (Konradi, 1996) or victims and victim impact statements (Booth, 2012) emphasize the ways “courtroom norms and standards” regulate and constrain the emotions of lay people (Fielding, 2013, p. 290). Research into psychology of emotion in legal settings focusses on jurors’ decision making, often using mock jurors, but does not investigate judicial emotion in the natural context of the courtroom or courthouse (Semmler & Brewer, 2002). Other research exploring emotion in legal settings concentrates on the legal profession (Lively, 2002; Pierce, 1995). Legal scholars provide important conceptual insights, but often depend on the reflections of a few judicial officers (Bandes & Blumenthal, 2012; Maroney, 2011b). The challenges of empirical research on emotions where ideology and practice disavow emotion are rarely addressed.
Effective strategies to research emotions in judicial work are demonstrated in two projects, one in Australia and another in Sweden. Both use multiple sociological research methods, within different research designs. Multiple methods enabled the study of emotion in and out of court; judicial officers’ display of emotion and departures from the norm of emotionlessness as well as their experiences of different emotions and the management of their own and others’ emotions.
Observational research examines judicial display of emotion in the natural setting of the courtroom; interviews and surveys investigate judicial emotional experiences and attitudes towards emotion in court and in judicial work more broadly (Small, 2011). Linking findings from different methods enables more in-depth understanding of judicial emotion. Other effective research strategies include extensive preliminary work to gain access and establish trust, and a careful balance of (legal) insider knowledge with an outsider (sociological) perspective.
After brief descriptions of the research designs and methods of each project, key strategies for researching emotion in courts are explained. The study of emotion in a setting and profession that eschews emotion requires particular reflexivity on the part of the researcher(s) to establish the legitimacy of the research, to elicit confidence and trust from judicial participants, and to gain information of value.
Judicial Research Project – Australia
The Judicial Research Project has undertaken extensive studies of judicial officers from all Australian courts. 1 The major phases of this investigation of the everyday work of the judiciary include: initial consultations, national surveys, court observations, and interviews (for more detail see Mack, Wallace, & Roach Anleu, 2012). These were undertaken in sequence, with each element building on findings from the previous study. The research commenced with open-ended interviews with 29 men and 17 women magistrates that explored their experiences of everyday work and perceptions about the magistracy. 2 Eighteen magistrates identified emotions as key issues, revealing a range of emotional experiences and expression (Roach Anleu & Mack, 2005). One magistrate described “absolute revulsion … for somebody who might have done something really horrible” as well as feelings of sympathy for others, but went on to say “you’re not allowed to let that sympathy get in the way of what you do” (p. 611). This comment suggests the value of multiple sources of data when studying emotion. Combining court observations with information directly from judicial officers through interviews or surveys identifies the emotions judicial officers experience but may not display in court.
These findings led to mail-back surveys of magistrates in 2002 and 2007. 3 The surveys examined magistrates’ career backgrounds, current position, the qualities and skills necessary to undertake their everyday work, job satisfaction, and the interface between work and other activities. Some questions directly asked about emotions, such as whether work is emotionally draining. Questions asking for further comment also generated information about emotions.
These interviews and surveys suggested that examining judicial work in court would be significant in understanding magistrates’ everyday work. In 2006, the Australian study observed cases in the nontrial criminal list in magistrates courts throughout Australia. Procedures included pretrial decisions such as adjournments or bail decisions as well as guilty pleas and sentences. The criminal list is the occasion when most members of the public encounter a court, often without legal representation and the magistrate interacts directly with them rather than with legal representatives. This provides an opportunity to observe judicial behavior, including emotion, during many varied interactions in a busy court.
The study observed 27 magistrates in 30 different court sessions in 20 different locations, producing snapshots of 1,287 individual matters, at different stages of their progress. Cases were not followed in their entirety (unless resolved in one appearance). Data, recorded by two observers on a preprinted code sheet, included aspects of the magistrate’s emotional expression, or lack thereof, and interaction with others in the courtroom, including the defendant when present (Mack & Roach Anleu, 2010). Demeanor is an important marker of emotion display: For Goffman, the “‘well’ or ‘properly’ demeaned individual displays … self-control over his [or her] emotions … [and] poise under pressure” (1956, p. 489). Taking into account language used, facial expression, and body language, the observers characterized the magistrate’s demeanor as welcoming, patient/courteous, routine/impersonal, impatient/ inconsiderate, or harsh/condescending/rude.
The most recent phase of the Judicial Research Project uses semistructured interviews, providing an opportunity to investigate directly how the emotional demands of judicial work are experienced and might be managed. A total of 38 interviews were undertaken ranging from 25 to 93 minutes. All but two were audio-recorded and transcribed; detailed notes were made of the unrecorded interviews. Seventeen of the interviewees were magistrates (10 women and seven men).
Researching Emotion in Swedish Courts
The Swedish project centers exclusively on emotion and emotion management in court, focusing on the professional participants. The research questions can be clustered into three areas: learning and mastering emotion management; influence of power, status and collegiality on emotion; and strategic use of emotions.
The design is a multisited case study (Marcus, 1995), with cases chosen strategically to account for differences in relation to the size of the court. A combination of methods was used: shadowing, observations, and interviews. Shadowing entails following one participant for a period, seeing their everyday life from their perspective (Czarniawska, 2007). Judges and prosecutors with diverse career backgrounds, years of experience, sex, and ethnicity were shadowed to study the preparation of cases and the shift between “frontstage” and “backstage” performances (Goffman, 1959, p. 128). The researchers accompanied the participants both in and out of court, conducted court observations, and undertook semistructured interviews on general topics combined with questions referring specifically to the observed hearings.
The project covers four district courts. 4 The focus is criminal trials, though, by shadowing individuals, data includes other legal procedures. At the time of writing, data has been collected from two district courts and the prosecution office associated with each court. Depending on the size of the court and the trials that were on, the researchers interviewed and shadowed 10 or more participants from each place for a minimum of 1 day and up to 3 weeks. Shadowing allowed access to informal zones such as the canteen, as well as formal backstage appearances of judicial deliberations which normally occur in a closed courtroom.
So far, the data consists of 74 interviews with 55 people, 22 judges, six clerks 5 and 27 prosecutors. Sixty-nine interviews were taped and transcribed; five could not be taped for practical reasons. The interviews ranged in time between 30 minutes (follow-ups) to 3.5 hours, averaging 2 hours (the longest interview was in two parts with a lunch break in between). Overall, 154 trials were observed, ranging from 5 minutes (when adjourned) to 8 days. The interviews involved questions about connections between emotion management and role performance. Examples include situations where emotions are legitimate/illegitimate; loyalty/disagreement with colleagues/lay people; sympathetic/antipathetic to lay people; the significance of education/work life experience or the use of tacit codes, such as a certain phrase to signal distance from a required role presentation (Harris, 2002). In the interviews, researchers talked about what they had observed in the courtroom, often just minutes or hours earlier. This is especially useful to get at background emotion, that is emotions that are not in focus themselves but are directors of focus, and can be lost from recollection if too much time passes (Barbalet, 2011).
The observation template consisted of preprinted squares for demographic details of the participants and for display features such as mimic, gestures, and demeanor. The demeanor guide was adapted from the Australian project (Mack & Roach Anleu, 2010). In the running notes the focus was on the process of the ritual (of the hearing) noting body language, facial expressions, glances and gazes, the use of explicit emotion words, tone of voice, interruption of speech and management of open transgressions of courtroom decorum. In a separate field diary the researchers noted observations relating to the shadowing, preliminary reflections and interpretations as well as their own emotional reactions to the events. As a means to reach experiential aspects of emotion in court, the researchers were “emotionally participative” using their emotions as a methodological tool, generating reflections and insights relative to the situations and the persons being shadowed (Bergman Blix, 2009). These reflections generated questions that could be raised in the interviews.
Discussion
What strategies are effective to investigate emotional experiences and expressions in court proceedings, where judicial emotion is expected to be absent? Key elements in the research design of both projects include careful preparation to obtain access to the judiciary, strategies undertaken during the research to manage judicial reluctance to discuss emotions, and multiple methods which, most importantly, enabled investigation of judicial emotional expression and judicial emotional experience. Evaluating the design and methods of each project illustrates the opportunities and limitations of the different approaches to investigate emotion.
Access
In both projects, it was necessary to work on obtaining access to the judiciary, considered by some sociolegal researchers as “a ‘hard-to-reach’ group” due to obstacles presented by gatekeepers (Cowan, Blandy, Hitchings, Hunter, & Nixon, 2006, p. 548), the judiciary’s “high status and professional remoteness” (Dobbin et al., 2001, p. 287) and their concerns about confidentiality of responses (C. Hunter, Nixon, & Blandy, 2008, p. 87). Gaining access requires establishing the legitimacy of the research, the credibility of the researchers, and the value of the study for the courts and the judiciary. Access is especially important to get at backstage emotion, the emotional experience as well as observable emotional expression. Emotion, whether experienced frontstage or backstage, may not be visibly expressed, consistent with norms of judicial dispassion. Access provides the opportunity to learn about judicial emotion experience, management, and display.
Obtaining access and cooperation requires the trust of the individual judicial officers. Each project developed formal support from the heads of the jurisdiction or courts studied, as well as informal support from key individuals within and outside the judiciary. In Australia and in Sweden, while heads of jurisdiction may indicate approval (or not) of proposed research, individual judicial officers are not obligated to follow their lead in light of the principle of judicial independence (Mack & Roach Anleu, 2004; Regeringsformen/The Instrument of Government, 1974). In any event, research ethics requires voluntary participation.
Judges expect to deal with prepared professionals in and out of the courtroom. Lack of preparation on the part of researchers can lead to loss of trust and limit access (Harvey, 2011; Smigel, 1958). It is important to be familiar with court organization and to use legal language correctly. It is difficult to be completely naïve and engage effectively with the judiciary. This challenges researchers to balance an insider (legally knowledgeable) approach with an outsider (sociological) perspective. Researchers must reflect on this tension during the planning and implementation of the research (C. Hunter et al., 2008). In these studies, the legal qualifications of the Australian researchers may have enhanced their credibility, but could risk them being perceived as professionally critical or even threatening. A different risk is shown by an ethnographic study of the English judiciary in which the researcher was asked her opinion about a case, which she gave. This may cross the delicate line between researcher/outsider and trusted participant/insider (Darbyshire, 2011; R. Hunter, 2014). The Swedish researchers, who did not have legal training, could ask strategically naïve questions to access assumed knowledge, perhaps without being perceived as threatening, and without creating confusion about their role as researchers.
In both projects, careful preliminary work, including pilot testing, resulted in judicial officers exhibiting considerable trust towards the researchers, enabling the collection and publication of in-depth and sometimes unflattering data about the judiciary and its work. In Sweden, private contacts provided access to key informants who assisted in establishing contact with interested respondents to “get into the house.” Once “inside,” researchers were able to select widely, to achieve a rich diversity of respondents. In Australia, draft surveys were circulated to selected members of the judiciary and academic colleagues for comment, followed by pilot testing. Interview planning entailed consultations with experienced judicial officers about draft questions plus pilot interviews. The Australian surveys had a good response rate (just over half), with nearly all respondents answering all questions in a long survey. Nearly everyone approached for court observations volunteered to be observed as did those approached to be interviewed.
Multiple Methods
Each of the two research designs uses multiple methods which enhanced the capacity to understand judicial emotion. First, each study used findings generated from one method to enable more concrete, effective investigation of judicial emotion in another method. Second, each linked observation of judicial emotional display with data about emotional experience and management.
Linking findings
Both Swedish and Australian researchers found that judicial officers may regard broad questions about emotions difficult to answer, especially in light of their obligation to exercise judicial authority impartially, usually taken to mean without emotion. However, asking questions informed by other data which demonstrated the relevance of judicial emotion gave judicial officers concrete examples on which to reflect about emotion.
The sequential design used in the Australian research took advantage of findings from one method to design and implement other methods. Building interviews on earlier survey and court observation research enhanced research legitimacy, addressed possible judicial reticence, and provided a concrete basis from which judicial officers could talk about emotion. In asking judicial officers to reflect on their emotions, the interviewer could incorporate material from surveys or court observations to preface face-to-face interview questions, for example: “Some of our previous research findings suggest that interpersonal skills are important in judicial work, especially in the courtroom.” Questions were then couched broadly to provide interviewees opportunity to identify what they consider to be an “interpersonal skill” and to give examples from their experience. Probes based on the kinds of interpersonal skills reported as important in the surveys, or that the researchers had observed in court, could be used to help the flow of the interview.
In the Swedish project, the simultaneous use of shadowing, court observations, and interviews provided complementary information. During a civil trial the judge forgot to ask the parties to make their claims. Afterwards she spontaneously exclaimed “I was so ashamed I could die.” The shadowing revealed how her colleagues in a partly routinized way managed such incidents with comforting and teasing comments. During the interview the following day she toned down the episode: “Such things happen.” The combination of methods made it possible to follow the shame process and learn about an institutionalized way to defuse it.
This simultaneous strategy also enabled the linking of findings from different methods to justify certain questions or kinds of question, but in a different way than the Australian research. Being present gave the researchers clues about how to talk about events and their corresponding emotions. In the original interview guide, questions about particular emotions were somewhat vague: “Can you reflect on … [a specific emotion]”, or “If you feel … [emotion], how do you handle it?” Reponses to these questions were sometimes flat denials: “I don’t feel …,” consistent with expectations of an absence of judicial emotion. After having seen several episodes of stronger emotions in and behind the scene of the court, these questions were changed to: “When are you, for example, afraid or angry as a judge/prosecutor?” These more straightforward questions often produced good results. It would have been difficult to use these questions before the researchers were certain that the emotions asked about are relevant for judicial work. The judge could still answer: “No, I am never afraid in my work,” but the posing of the question allowed for reflections on why they were not afraid, or how they deal with situations to avoid becoming afraid.
Emotional expression and emotional experience
A second important contribution of multiple methods in these studies is to distinguish between emotional experiences and expressions (Hochschild, 1983; Wharton, 2009). Researchers can observe emotional expression and ask people about their emotional experiences. To put it another way, observation can reveal judicial officers’ actions and behavior; surveys and interviews tell researchers about judicial officers’ thoughts and feelings.
Because court observations only investigate frontstage but not backstage performance, the Australian court observation research cannot make claims about the actual subjective intentions, purposes, or emotions of the magistrates observed. Information about judicial emotional experience comes from earlier surveys and later interviews. The number and variety of magistrates observed provides data on the distribution and frequency of different judicial and in-court behavior including emotional display. The surveys enable broad findings about the emotional experiences of the judiciary as a whole, or particular segments of it, such as magistrates or women. However, neither observations nor surveys offer an immediate in-depth explanation of these findings. Interviews create the opportunity for judicial officers to reflect on how they manage their emotions, or the emotions of others in the courtroom. Interviewees in Australia recalled examples or anecdotes, sometimes from matters dealt with that day, to illustrate an aspect of emotion in judicial work, though the interviews were not grounded in particular cases.
In contrast, the Swedish study examines experiences and expressions together of the individual judges observed and interviewed. Undertaking interviews in relation to specific recently observed hearings allowed the researchers to ask questions that linked subtle frontstage display of emotion with judicial officers’ emotional experiences, teasing out the emotions involved in the performance of dispassion. This strategy paved the way for reflections in the interviews to be concrete and grounded in actual practices. Often participants were not used to reflecting on or talking about emotion, but the closeness to a specific event sparked that capacity. During a trial the defense made an outrageous demand. The ordinarily jovial judge reacted with a strikingly impersonal demeanor and in the interview described vividly how “irritated” he had been. This reaction was common; the more misbehavior, the less emotional display and the more impersonal demeanor from the court. The use of data from direct court observations in interviews also enabled investigation of any discrepancies between expression and reported experience. However, participants may hesitate to acknowledge descriptions of their own behavior. This can arise from the human inclination to form positively biased perceptions of oneself, so called “positive illusions” (Taylor & Gollwitzer, 1995, p. 213). In particular, because of norms of judicial detachment, a judicial officer may be reluctant to acknowledge emotional experience or expression. The researchers managed this by incorporating a representation of the behavior into the question, using facial expression or tone of voice, rather than simply describing the apparent emotional display.
Shadowing in the Swedish research offered opportunity for spontaneous interviews directly connected to situations observed, thus enabling continuous validation of the researcher’s interpretations (Agar, 1986). These spontaneous emotional episodes and recollections depended to a large degree on the researchers being there at the right time. In interviews a judge could have difficulties remembering any strong emotional experiences, and then that same judge could tell a lively story at lunch about a strong experience in response to a comment from another judge. They triggered each other in ways the researchers could not.
Conclusion
Considering the methods used in two projects, undertaken in different countries with different legal systems using different research designs, reveals important insights into how to discover judicial emotion in a context which formally proclaims the absence of emotion.
The major insights into research design are first, the need to undertake careful preliminary work to elicit access and to generate willingness on the part of the judiciary to facilitate observations and respond to questions, whether in formal interviews or as part of shadowing; second, the importance of researcher reflexivity to balance the need for adequate legal knowledge to maintain credibility and legitimacy with the judiciary with an appropriate outsider research stance; and third, the value of multiple methods. Linking findings from one method to inform another method enables investigation of specific emotions or concrete occasions of emotion grounded in actual judicial practice. In particular, observations to identify emotional expression (and its absence) can be linked, especially with interviews, to gather data about emotional experiences. Multiple methods can be effective whether implemented simultaneously as in the Swedish research or more sequentially as in the Australian research. Shadowing creates opportunities for spontaneous unexpected observations and conversations; more structured inquiries such as surveys provide broader data across a population, both of which can inform other methods.
These two research projects demonstrate that careful research design, incorporating linked multiple methods, whether sequential or simultaneous, and reflexive research practices enable investigation of difficult questions about emotion experience, expression, and management in a setting where emotion is disavowed.
Footnotes
Author note:
Funding for the Australian research includes: a 2001 University–Industry Research Collaborative Grant with Flinders University and the Association of Australian Magistrates (AAM) and financial support from the Australasian Institute of Judicial Administration (AIJA); an Australian Research Council (ARC) Linkage Project Grant (LP0210306) with AAM and all magistrates courts; and two ARC Discovery Project Grants (DP0665198, DP1096888). We are grateful to several research and administrative assistants over the course of the project. All phases of this research involving human subjects have been approved by the Flinders University Social and Behavioural Research Ethics Committee. The Swedish research is funded by the Swedish Research Council (2011-1553) and the Swedish Research Council for Health, Working Life and Welfare (2011-0671). A Visiting Research Fellowship (Flinders University) facilitated this collaboration. We appreciate comments from Deb King and Åsa Wettergren on an earlier draft, and those of the anonymous reviewers and editors.