Trial as a Social Communication Occurrence

Introduction

When undertaking a scientific analysis of a particular fragment of social (socio-cultural) reality, it is necessary to answer the question: To what extent the phenomenon chosen as the object of study is a momentous element of some relevant social system?

The significance of communication in the context of a trial can be characterized in terms of various aspects of the phenomenon. First, the taking of communication acts is a prerequisite for the existence of a trial – procedural acts are also communication acts, which represent a lower level of conventionalization than procedural acts. Second, taking communication acts is the primary tool for achieving non-communication goals in a trial (and in court proceedings in general). Third, any non-communication act and any behavior of the participants of the court proceedings can affect the interpretation of communication acts (and therefore procedural acts) taken at the trial. Fourth, the communication process that occurs in court proceedings is the “top layer” of the procedural activity of the participants in the proceedings. Accordingly, the communication process is that level of activity of the participants in the proceedings that is directly observable to any potential recipient of the acts undertaken at the trial; other levels already require some preparation. This, in turn, causes the very communication process at the trial to become the subject of various qualifications or assessments made both by internal observers – the participants in a given proceeding – and by external observers – everyone else. Thus, frequently the evaluation or qualification of procedural activity from the point of view of various criteria is made through the prism of the communication acts of the actors undertaking the activity in question.

The issues indicated above, of course, do not exhaust the entire scope of the relationship between the communication process and the trial in which this process is carried out, but nevertheless indicate the undoubted importance of communication in the context of the trial.

The stimulus to undertake research on the communication process occurring at the trial in Polish courts, the results of which are presented in this book, became, at least to some extent, the positions presented in Poland both in the community of lawyers¹ and outside it.² According to them, the communication in court proceedings (including a trial) is a formalized, complicated process, determining the emergence of communication barriers that can affect the actual access to court by people with little knowledge of the characteristics of this type of communication.³ Not without significance was also the fact that in Poland there is an increasingly expressed belief in the need to strive for simplification of language as a means of communication, including in the administrative and legal sphere.

The studies presented in this book began in a situation where studies (especially empirical studies) on communication process at the trial in Polish courts has been the subject of only a few monographs or reports. Let’s take a brief look at the characteristics of this research, including its methodological aspects.⁴

Małgorzata Rzeszutko’s book⁵ deals exclusively with the trial of a criminal case, and focuses on issues in textual linguistics. In contrast, Grażyna Bednarek’s monograph⁶ is limited in subject matter to the criminal trial and to the specific type of procedural act – the examination of a witness. At the same time, it is a comparative work, because within the scope of its interest remains the communication process in both Polish and American courts.⁷ In addition, in 2014 the empirical research report by Jan Winczorek and Paweł Maranowski, which is limited in subject matter to the civil trial, was published.⁸

It is impossible at this point not to mention the publications related to the Citizens’ Monitoring of Courts conducted by the volunteers of the Court Watch Poland Foundation. The reports, which are drawn up annually on the basis of participant observation of trials held before Polish courts, contain conclusions on, among other things, the respect of the principle of openness of the trial, the right to a fair trial, the treatment of participants of the proceedings, or various aspects related to so-called procedural justice. A significant part of the conclusions relate to the communication acts of participants (especially judges), which are formulated on the basis of the observations (sometimes feelings) of observers (“non-lawyers”).⁹

The record of observations conducted by volunteers of the Court Watch Poland Foundation in 2010–2015 became part of the empirical material used by Stanisław Burdziej in his research on procedural justice as applied to the activities of the Polish judiciary.¹⁰ Despite the fact that Burdziej’s work centers around the thesis proclaiming that procedural justice is an essential condition for the perception of judicial power as legitimate,¹¹ it presents important research conclusions regarding communication in the courtroom.¹² It is worth citing here some of the results of surveys conducted on two groups of respondents.¹³ These results draw a much more positive picture of courtroom communication than some other studies. For example, in the first survey, 81 % of respondents indicated that the judge explained procedural issues or the terms he or she used in an understandable way,¹⁴ 80 % that the judge explained the purpose of the session or provided an agenda.¹⁵ Specifically, the second survey found that 92 % of respondents understood the content and meaning of the judgment, 80 % indicated that the judge made sure the participant understood the judgment, 84 % of respondents understood what was happening in the courtroom, and 77 % indicated that the judge explained procedural issues or the terms he used in an understandable way.¹⁶

By the time the English-language version of this book was published, the several studies on the courtroom discourse in Polish courts had yet been published.¹⁷

In addition to the above-mentioned books, the issue of communication at the trial has been taken up in monographic works in Poland on the occasion of research generally devoted to other issues.¹⁸ Thus, the claims about the characteristics of the communication process at the trial in Polish courts have different sources and, consequently, different relevance. Some are the result of scientific reflection on communication in the courtroom, some can be derived from findings on issues variously related to this type of communication, others, in turn, are drawn from colloquial experience and are sometimes accepted as true intuitively.¹⁹

The advantage of the research on communication process at the trial conducted in Polish courts is that its results can, in general, complement the results of the research presented in this book (given the same socio-cultural, including normative, background). However, as we have seen, studies of this type have not been realized much in Poland. The situation is quite different in the case of foreign studies, especially those on communication at the trial in the courts of the common law system. In the case of the Anglo-American system, we can even speak of a tradition of research on courtroom communication. A huge number of publications have analyzed a wide variety of issues concerning courtroom communication, using a variety of research methods.²⁰ However, in general the results of empirical research concerning courtroom discourse in common law system, regardless of the research method by which they were obtained, cannot be considered relevant to the communication phenomena occurring in Polish courts. At most, they can be a contribution to the analysis of a specific issue, when intuitively the particular research results seem adequate also to the communication process in Polish courts,²¹ or on the contrary e.g. to show the differences. This is because of the obvious divergences between the way court proceedings (including trial) are structured in the common law system, especially jury courts, and the way court proceedings are organized in Poland. It seems that what determines to the highest degree the differences between the communication process at the trial in the common law system and communication at the trial in Polish court proceedings concerns the high degree of adversarial nature of the proceedings in the courts of the common law system²² and the fact that certain decisions in the courts of this system can be made by a jury (composed of non-professionals).²³

Undoubtedly, on the other hand, one can draw inspiration from the research methods used, theoretical concepts, both those developed in various research fields, and those that have been developed for or as a result of the analysis of the communication process in the courtroom.²⁴

All that has been written above justifies the necessity of adapting the research methods, thematic scope and theoretical basis to the subject of the study – the communication process occurring at the trial in a Polish court proceeding.

The purpose of the study is to accomplish two main research tasks expressed in the following questions:

1. 1. What are the characteristics of the trial (in Polish courts) as the communication occurrence considered as a model?
2. 2. How non-professional participants of court proceedings cope with the involvement in the trial and what is the role performed by a presiding judge in this process?

The distinction of the two research tasks at the very beginning of the work is intended to emphasize their equivalence and to delineate the two research fields – so that there is no doubt when one is talking about the trial in model terms, and when one is talking about the actual communication phenomena occurring within it. Nevertheless, as a consequence of these tasks, a coherent picture is to emerge showing the actual communication phenomena (the scope of which is determined by the second research task) against the background of the model formation of the trial as a communication occurrence. Each of the above-mentioned tasks will be developed and detailed accordingly in the following sections of the study.

The structure of this book, on the other hand, was designed to present as clearly as possible not only the results of the research process, but also its course. The main part of the book is formed by Chapters 2 and 3. Chapter 2 reconstructs the genre pattern of a trial (in Polish courts). Thus, the considerations contained therein focus on the model formation of the trial in terms of communication. The research material collected for the study during participant observation of 250 court sessions scheduled for the trial²⁵ plays a subsidiary role in these considerations.

Chapter 3 is different, as it deals with the actual communication acts (and behaviors) performed at the trial, which were revealed during the analysis of the research material. The study of the empirical material forms the basis for the formulation of the conclusions in this chapter. However, the considerations are closely and variously linked to the elements of the model structure of a trial – from the research procedure, which the reconstructed genre pattern of a trial was used to develop, to the description of the results obtained through the analysis of the empirical material, which draws attention to the relationship between certain actual communication phenomena and the model structure of a trial.

In the context of the considerations in Chapter 3, it is important to pay attention to what could be called the “experience” of communicating (to each other) at a trial. It is obvious that different members of society experience participation in a trial with different frequency – for some it is a permanent part of their professional role, for others it is a type of social activity that they have not yet experienced. Given the differences indicated above, the empirical research, the results of which are discussed in Chapter 3, focuses primarily on the participation of non-professional participants of court proceedings at the trial. It is recognized in this book that the study of the communication acts of people for whom the activity in question is not a permanent part of a social, including professional, role (as in the case of non-professional participants of court proceedings) is cognitively and socially particularly momentous.

Chapter 1, on the other hand, serves to theoretically ground the undertaken research process. This chapter is followed by the presentation of some basic assumptions that determine and at the same time justify further choices related to the methodological and theoretical grounding of the research process. Chapter 1 closes with basic terminological and conceptual findings.

The last part of this book is a summary of the study. Here, moreover, it returns to the issues that (in the discussion of the communication process at the trial) are considered particularly determining (even hindering) the communication process, i.e. the use of legal and juridical terminology and the formalization of the communication process. The Summary closes with comments on the importance of conducting empirical research, especially in those areas of socio-cultural reality that are co-created by the law, and the possibility of using the results of the research contained in this book in the future.

In conclusion, it should be further noted that the research activities undertaken in the study in relation to the research material collected for its purposes consist in qualifying communication phenomena from the point of view of specific criteria. These criteria are embodied in detailed research questions and analytical categories, thanks to which the research process conducted for the purposes of this publication remains, at least to some extent, intersubjectively controllable. As a result of this process, a picture of the analyzed aspect of socio-cultural reality, including the communication acts of the actors who co-create this reality, is outlined. For the reader of this book, this picture can simply be a source of cognition of the studied reality. However, it can equally well be the basis for making further qualifications and even assessments – understood as an experience of approval or disapproval of a certain state of affairs.

1 E.g., T. Gizbert-Studnicki, Postępowanie sądowe jako złożony dyskurs – zagadnienia pragmatyki języka sali sądowej [Court proceedings as a complex discourse – issues of pragmatics of the language of the courtroom], paper presented on Polish Language Congress in Katowice, 4–6 of May 2011, www.rjp.pan.pl/index.php?option=com_content&view=article&id=1376&Itemid=50, access 20.12.2022, M. Strączyński, Język prawniczy – przyczyny i charakterystyka błędów i niezrozumiałości sformułowań [Juridical language – causes and characteristics of errors and incomprehensibility of expressions], paper presented on Polish Language Congress in Katowice, 4–6 of May 2011, www.rjp.pan.pl/index.php?option=com_content&view=article&id=1378, access 20.12.2022.

2 Cf. e.g., research by the Helsinki Foundation for Human Rights, J. Lora, Komunikacja sądów z obywatelami – badania empiryczne, wnioski, rekomendacje zmian [Communication of courts with citizens – empirical research, conclusions, recommendations for change], Warszawa 2009, cf. also the results of surveys on the comprehensibility of the language used by the judge to the hearing participants, showing, among other things, that “direct contacts with the court have little effect on the respondents’ opinions on the comprehensibility of the language used by judges at trials”, M. Borucka-Arctowa, Komunikacja między sądami a społeczeństwem [Communication between the courts and society], in: Sądy w opinii społeczeństwa polskiego [Courts in the opinion of the Polish society], eds. M. Borucka-Arctowa, K. Pałecki, Kraków 2003, pp. 80–81.

3 This, of course, is not peculiar only to trial in Polish courts. See e.g. Handling Cases Involving Self-Represented Litigants. A Benchguide for Judicial Officers, Judicial Council of California 2019.

4 The specific issues discussed in these publications will be referred to in appropriate places in this book.