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David Lau

10/4/10

Firing Squad

When my observation partner and I reached the courtroom that we’d be

observing, a black man in his 40s came out of the courtroom, crying and muttering

unintelligibly. Despite his immediate state, he looked healthy and sane, as far as one

could determine in a fleeting glance. That being the case, what could have reduced him to

tears in a government institution? As my partner and I subsequently observed the nature

of the court, I began to understand how the legal process funneled all of the power, such

as the ability to question, the right to hold one's possessions, and the comfort of allies, to

the lawyers away from the witnesses. It functioned as a “micro” total institution, much

like in Erving Goffman’s Asylums where the “inmates” are put into an often hostile

situation from which they cannot escape. With his perspective, it is easy to come to the

conclusion that courts grant attorneys the sole power of inquisition and accusation, a

witness will often find himself alone, powerless, and staring down the barrels of a

sociological firing squad.

On Tuesday, September 21st, my partner and I went to the Alameda County

Superior Court in Berkeley. In the courtroom, a trio of lawyers was present. They

engaged in fairly lighthearted, and at times joking, conversation with each other.

Opposite them sat the defendant. I recognized him as the distraught man from earlier. His

condition stood in stark contrast to the demeanors of the friendly security guards at the

entrance and the banter of the lawyers. By now, though, the defendant had regained his

composure but was still someone nervous and fidgety. The judge eventually entered, but

apart from certain ceremonial segments such as standing for his entrance and asking his
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permission for minor points of protocol, he had no more impact on the trial during the

observation than we did. From here, the trial began, with the defense attorney and

prosecutor alternately asking the defendant questions.

Goffman provides an interesting analysis of the situation. As an opening caveat,

no claim is made that the courtroom is strictly a total institution as defined by Goffman:

"A total institution may be defined as a place of residence and work where a large

number of like-situated individuals, cut off from the wider society for an appreciable

period of time, together lead an enclosed, formally administered round of life" (Goffman

1961, p. xii). People in courtrooms can eventually be put into total institutions, which, in

this case, are prisons. However, the courts themselves are not such. Still, they have some

of the characteristics of total institutions, making them "micro" total institutions of sorts

in which the lawyers are the staff, and the witnesses the inmates. Drawing parallels

between Goffman's analysis and the court, the lawyers are specially trained for daily but

temporary immersion into their occupation, and they are seen as being of a higher social

status , which was readily apparent in the discrepancy between the quality of the witness's

and attorneys' suits. Meanwhile, the inmates are forced to be in the micro total institution,

where they have a specific protocol of dress to follow, they enter a hostile and unfamiliar

environment, and most importantly, the staff has practically unlimited control over them.

During the trial, a plurality of the time was spent with the defense attorney

questioning the defendant as a witness. Protocol in the micro total institutions was clear:

the attorneys asked questions, because they were part of the staff, and the witness

answered them, because he was an inmate. If a lawyer found it necessary, he could

potentially inform a witness of something, but a witness would be out of line in asking a

lawyer any kind of question beyond trivial clarifications. For example, if a witness made
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a judgment, the lawyer would have nothing stopping him from asking, "Why do you say

this?" If, however, a witness asked a lawyer that same question, the lawyer could easily

say, "It's not your place to ask" while the witness could not. Utilizing the massive

disparity of social status in the courtroom, the lawyers command the flow of information

and, by and large, ensure that it only goes one way.

This seems somewhat counterintuitive. Surely a witness has a large degree of

control over what's being said; after all, the witness in our observation did most of the

talking. But within that same observation, the defense attorney also cut the witness off

during a relatively long testimony with a "Thank you, that's enough". These two were on

the same side and still the lawyer pressured his client. In response, the witness said that

he was tired of the "craziness" that he was enduring. Goffman states, "One implication of

using words to convey decisions about action is that the recipient of an order is seen as

capable of receiving a message and acting under his own power to complete the

suggestion or command" (Goffman 1961, p. 44-45). When the witness felt that he could

not even say all the words that he wanted to, he felt incapable of expressing his situation,

a loss of control over the situation, and thus felt justified in speaking without being

questioned. It is indicative of how major a breach of protocol it was that he only did so

once during the entirety of the trial.

During one particularly noteworthy sequence, the prosecutor walked forward to

the seated defendant and asked him to confirm if he had, in fact, signed some documents,

which the prosecutor held in her hands. The defendant remained seated with the

prosecutor standing over him, a marked display of the inequality of their status. Even

more significant of such inequality, though, was the fact that the defendant was not even

allowed to make contact with the evidence due to evidence tampering concerns. This
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eerily evokes Goffman's (1961) description of how inmates are stripped of their

possessions soon after arrival to a total institution. While deprivation of

ownership/physical contact have different reasons in the two cases, they lead to the same

result: the inmate feels stripped of even basic agency.

One of the courtroom's deviations from Goffman's total institution theory is

distribution of the power of courtroom factions. In a prison or barracks, the staff is a

unified body that the inmates endure and resist. Social inequality is clearly outlined. In a

courtroom, however, the two factions are theoretically equal: a prosecutor is paired with

the plaintiff, a defense attorney with the defendant. Our observations did not conflict with

the equality of these factions. However, they did cast doubt on whether those factions

even existed. The plaintiff was not in court during our observation, but as for the

defendant, it did not seem that anyone was on his side. As described, his own attorney cut

him off, only asked him questions, never gave him a chance to ask for information for his

own benefit. The prosecutor, of course, was certainly no more friendly, at least, not to

him. Though she was sharp and pointed toward him, she treated the next witness very

well, even inquiring about her day. As an attorney, she had the power in her hands to

subject a witness to heaven or hell. In addition, as stated earlier, the two attorneys were

joking around with each other, seemingly aligned with each other, not taking antagonistic

roles. Alone, in an unfamiliar environment, powerless, and with often hostile questions

sequentially leveled at him like gunshots, it is no wonder that the defendant broke down

in tears shortly before our entrance.

Of course, not every witness leaves the courtroom with metaphorical lost limbs

and hemorrhaging, and there must be a reason for this. There is an "assurance that certain

standards will be maintained" (Goffman 1961; p. 77) for the witness, which, in a court, is
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the judge. Without judges to maintain a fair trial, we could potentially have a legal

system whose day-to-day operations could be "enhanced" interrogation of witnesses. As I

observed, the fact that he wasn't being explicitly tortured seemed to be the only comfort

that the witness could take. But consider how fragile a comfort it must have been. The

judge was almost completely silent during the case, aside from basic ceremonial words at

the opening and an occasional "granted" to an attorney asking for permission. He

certainly was no fervent advocate for the witness. Strangely, even more distressing is that

the judge gave no indication that he cared about the trial. He had a blank expression on

his face, looked down the entirety of the trial, and had his face in his palm for a good deal

of it. A judge is supposedly the most powerful member of the court, and yet he gives no

indication that this trial is important. Nor do the attorneys, with their joking and their lack

of sympathy for the defendant. As such, the defendant has no choice but to sit through the

trial, alone, demoralized, feeling increasingly trivial and worthless as the trial continues.

We Americans have long prided our legal system, to the point that we even

produce and watch television on the legal process. We hold it as ideal because it is

supposedly fair and equal in a world in which resources are equal and judges are

impartial. But we have seen that equal resources and impartiality do not strictly lead to an

ideal court system, nor does our intent to create a fair and equal system actually manifest

as such. A trial is canonized as an epic and glorious Revolutionary War-esque battle

between the plaintiff and the defendant, as well as their respective attorneys, where the

righteous prevail through the sword and shield of justice. In truth, the only metaphorical

weapons in a court are ceremonial execution rifles of legal protocol wielded by lawyers,

while the witness stands facing the wall, unarmed, bound, gagged, and alone.