Performing Impartiality: Judicial Demeanor and Legitimacy

Authors


  • The authors can be contacted at judicial.research@flinders.edu.au.

  • The study is part of a national, multiyear, empirical research project. For more information about the project, go to http://ehlt.flinders.edu.au/law/magistrates/. This research was initially funded by a 2001 University-Industry Research Collaborative Grant from Flinders University and the Association of Australian Magistrates (AAM), and received financial support from the Australian Institute of Judicial Administration. Until 2005, it was funded by an Australian Research Council Linkage Project Grant (LP210306) with AAM and all Chief Magistrates and their courts as industry partners, with support from Flinders University as the host institution. All phases of research involving human subjects have been approved by the Social and Behavioural Research Ethics Committee of Flinders University.

  • We are grateful to Russell Brewer, Carolyn Corkindale, Elizabeth Edwards, Ruth Harris, Julie Henderson, Lilian Jacobs, Leigh Kennedy, Lisa Kennedy, Mary McKenna, Rose Polkinghorne, Wendy Reimens, Mavis Sansom, and Dave Wootten for research and administrative assistance. Some of the research findings in this article were previously presented at the AAM Fifteenth Biennial Conference, in Fremantle, June 2006; the Confidence in the Courts Conference, in Canberra, February 2007; a staff seminar at Flinders Law School, in Adelaide, March 2007; and the combined meetings of the annual Law and Society Association and the International Sociological Association Research Committee on the Sociology of Law, in Berlin, July 2007. We are grateful for the many helpful comments we received from participants at those events, in particular Margaret Davies, Lynn Mather, and Cyrus Tata, as well as from anonymous reviewers.

Professor Kathy Mack is Professor of Law, Flinders Law School, Flinders University, Adelaide, Australia.

Professor Sharyn L. Roach Anleu is Professor of Sociology at Flinders University, Adelaide, Australia; a Fellow of the Australian Academy of Social Science; and a past president of the Australian Sociological Association.

Abstract

The demeanor exhibited by a judge is a key element in criminal proceedings, especially in direct interactions with the defendant, defense representatives, and prosecutors. The judicial demeanor(s) displayed must meet the normative confines of the judicial role—primarily impartiality—within the practical constraints of long case lists, when interactions are subject to considerable time pressure.

Drawing on findings from an extensive national court observation study, this article examines the varied demeanors displayed by magistrates—the presiding judicial officers—in Australia's lower courts. It explores the complex meanings of these demeanors, and considers how they may enhance or undermine the legitimacy of judicial authority.

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