Performing Impartiality: Judicial Demeanor and Legitimacy

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.

In-Court Judicial Behaviours, Gender and Legitimacy

“…Gender diversity is thought to increase public confidence, to better reflect society as a whole in the judiciary, to widen access to positions Nussbaum (1996); Popovic (2002), p 129;Shaman (1996). 20 Mack and Roach Anleu (2007, 2010a, 2013. Tyler (1984Tyler ( , 2003; see also Lind and Tyler (1988).…”

“…This shows up more sharply when sentencing and non-sentencing matters are considered separately. In sentencing matters, the most frequently displayed demeanour for all magistrates was again the impersonal, routine, business-57 Mack and Roach Anleu (2010a). 58 Mack and Roach Anleu (2010a, 2011).…”

Entering the Australian Judiciary: Gender and Court Hierarchy

“…The work of the higher courts in which judges preside (Commonwealth courts and state and territory district and supreme courts) differs in important ways from the nature and demands of work in the lower first‐instance state and territory courts in which magistrates preside (Mack and Roach Anleu 2010b, 2007). These differences suggest that the opportunities for judicial office and the reasons for entering the judiciary may differ for women and men.…”

A Sociological Perspective on Emotions in the Judiciary

“…For example, they endeavor to control their demeanor by minimizing emotion displays, particularly to display impartiality to the public (Darbyshire, 2011;Scarduzio, 2011;Roach Anleu & Mack, 2005). However, there are also examples of judges displaying the opposite, by acting condescending, rude, harsh, or bored (Mack & Roach Anleu, 2010;Maroney, 2012;Ptacek, 1999). Maroney describes "angry judges' 'raised voices, red faces, yelling, insults, and threats" (2012, p. 1236) when they perceive lawyers as incompetent or defying the judge's authority.…”

“…There is a burgeoning literature on judicial emotions that challenges the notion of judicial dispassion (Bandes & Blumenthal, 2012;Mack & Roach Anleu, 2010;Maroney, 2011;Maroney & Gross, 2014;Posner, 1999;Roach Anleu & Mack, 2005). A major focus of this research is empathy, an essential tool in work involving the assessment of people's behavior and narratives.…”