THE COURTS

This writing assignment was written Aug 3, 2010 for my TRU Soci 422 (Social Construction of Crime and Deviance) Open Learning Correspondence course.

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INTRODUCTION

As a paralegal victims' rights advocate, I've had many courtroom experiences that ranged from litigating successfully for clients in both British Columbia Provincial and British Columbia Supreme Courts, to observing a murder trial held in Provincial Youth Court. As this is Youth Court, the accused cannot be named, and are only referred to by their initials in the case citation as well as in written correspondence.

The courtroom experience I am going to address is in relation to a murder trial that was held in BC Provincial Youth Court. In any courtroom, when sheriffs, lawyers, as well as Court staff enter they bow. They bow, out of respect to the portrait of the Queen, that is on the wall directly behind the Judge's bench (Professional Experience).

The armed sheriffs are responsible for both the courthouse and courtroom security as well as handling of the prisoners in held in the courthouse jail, commonly referred to as court cells. The court clerk is responsible for recording the presence of all parties involved, handling of the evidence and short hand of the hearing, or trial transcripts (Professional Experience).

The Judge is akin to a referee, and in the event that the hearing or trial does not have a jury, the Judge alone, determines the guilty, or not guilty verdict of the accused. The lawyers that appear represent the respective parties. The lawyer representing the accused is referred to as counsel for the defence, whereas the other lawyer represents the state and is referred to as the Crown Prosecutor (Professional Experience).

In the professional setting of any courtroom lawyers refer to each other as 'my friend'. The Crown Prosecutor presents their case against the accused by making verbal submissions and present relevant evidence, including witnesses, and in some cases, expert witnesses, that supports their submissions. The defense counsel, in some cases, will attempt to portray the accused as either not guilty, or at least guilty with minimal involvement of the event, such as the driver of the getaway car (Professional Experience).

If the trial is heard by Judge and jury, the jury reviews all the evidence and submissions to determine a 'guilty' or 'not guilty' verdict. However, if the matter is heard by Judge alone, also referred to as a bench trial, the Judge, also known as the trier of facts, reviews the facts to determine the verdict (Professional Experience).

PROFESSIONAL DOMINANCE

In the Canadian criminal justice system, just as in the United States criminal justice system, the accused is presumed innocent until proven guilty. During the trial, the Judge has a type of professional dominance over the entirety of the trial proceeding, including the lawyers, accused, court staff, and those in the public gallery. An example of the professional dominance the Judge has, is if the accused continues to disrupt the trial procedure, the Judge could have the accused removed from the courtroom and continue the trial in the absence of the accused (Hester et al., 1992, p. 202).

Furthermore, the Judge can exercise professional dominance over the lawyer, such as fining legal counsel for contempt. In one example, a civil case I was litigating at BC Supreme, the Judge ruled in favour of my client, counsel for the opposing party continued to argue. The Judge then slammed his gavel, stood up, and raised his voice at the lawyer, and stated that he made his ruling and proceeded to tell the lawyer to shut up, then left the courtroom (Professional Experience).

In the event of a trial by Judge and jury, the Judge, of course, as professional dominance over the jury members. One example of this, is when the Judge charges the jury, in other words instructs the jury of what needs to be considered as relevant in determining the verdict, including the difference between first degree and second degree murder. The Judge's professional dominance also includes dismissing a jury member during jury selection, or during a trial, if the jury member has caused a conflict of interest that could affect the trial in an unfair manner (Hester et al., 1992, p. 202).

The sheriffs also have a professional dominance in both the courtroom and the courthouse. However, the sheriff's professional dominance is limited to the duty of security of the prisoners, courthouse, and the courtroom. For example, the sheriff escorts prisoners from the courthouse jail, also known as court cells, to the prisoner's docket in the courtroom, and ensures the prisoner cannot escape during trial (Hester et al., 1992, p. 202).

Another example of the sheriff's professional dominance, is that the sheriff has authority to enforce courtroom rules over those in the public gallery in the courtroom, such as ensuring no one is sleeping, chewing gum, or wearing hats, as well as ensuring cell phones are turned off, as well as to ensure no one in the public gallery is disrupting the trial by talking amongst themselves. In the courthouse itself, the professional dominance of the sheriff includes ensuring that those in the courthouse are not causing a disturbance while they are waiting (Hester et al., 1992, p. 202).

On the other hand, lawyers flex their professional dominance within the dynamics of clients and witnesses. In the case of clients, the lawyer will flex his o her professional dominance by insisting the client follow instructions in regard to the theory and strategy of the client's defense (Professional Experience).

Within the dynamics of dealing with witnesses, both Crown and Defense counsel have a professional dominance in the way they conduct in-chief and cross examination questions. One example is how the lawyer asks questions with the intent of manipulating the witness to contradict their testimony. Briefly, in-chief refers to initial non-leading questions that allows the witness to be descriptive in their answers, whereas cross-examination refers to leading questions that only require a 'yes' or 'no' response (Professional Experience).

DEMAND CHARACTERISTICS

The dynamics of demand characteristics affect the organizational aspects of the trial process in a number of ways. In other words, the demand characteristics address the behavioral aspects of each actor within the courtroom stage. In regard to the accused, demand character is extremely important, especially if the accused is facing a life term in prison. Furthermore, the accused will adapt to the dynamics of demand characteristics if he or she is factually innocent. In other words, they did not commit the crime (Hester et al., 1992, p. 197).

On the other hand, the dynamics of demand characteristics affects the lawyers in a much different way. For example, the dynamics of the demand characteristics of the defense counsel dictates that the defense counsel acts in a different way than the Crown Prosecutor. This is because the role of the defense counsel is to represent the best interests of his or her client. In other words, the defense counsel takes on a professional, but aggressive position in an attempt to ensure that his or her client's loss of freedom is minimized. In other words, mitigating the circumstances so that the client will either receive a reduced jail term, or avoid jail altogether by being sentenced to probation or a discharge, or an outright acquittal (Hester et al., 1992, p. 197).

I argue that the dynamics of demand characteristics affect Crown in a much different way, and only because Crown's purpose is to protect the community, and society as a whole from the criminological element; by seeking the truth which is sought through the facts of the case. I also argue that all parties involved must adapt to the dynamics of demand characteristics because any deviation of demand characteristics within the courtroom stage could have a negative outcome, such as a member of the public, located in the gallery being removed, legal counsel being sanctioned as well as found in contempt. Contempt charges could also apply to members of the jury, witnesses as well as the accused. I further argue that the dynamics of demand characteristics is not due to respect of the legal system, but rather due to respect of the judge. For it is the judge that holds the supreme and ultimate dynamics of demand characteristics.

TYPIFICATIONS

The dynamics of typifications include the typical ways that the actor on the courtroom stage act. In each case, each actor makes a point of showing respect. The judge is addressed as 'your honor', as well, when addressing the judge, the actor speaking to the judge does so standing. The only time an actor is not required to stand when speaking, is when that actor is in the witness box (Hester et al., 1992, p. 217).

I argue that according to the dynamics of typifications. counsel for each party shows respect to each other in the way the present their case. Furthermore, legal counsel are also respectful when questioning the witnesses, and only approach the witness by leave of court (judge's permission).

Furthermore, the purpose of questioning the witness is not to verbally attack the witness, but to attempt to pursue the truth of the evidence. On the other hand, the role of the defense when questioning the Crown's witness is to attempt to dispute the facts of the witnesses testimony.

REFERENCES

Hester, S., Eglin, P. (1992). A Sociology of Crime. New York, NY: Routledge.