Within the criminal justice system, there’s been longstanding emphasis on judicial dispassion, in which the judge adopts a detached, unemotional demeanor to support their positional authority. As such, the courts have adopted a widespread belief that this behavior is the best means of demonstrating impartiality. Although judicial dispassion remains the dominant form of judgecraft, many question the effectiveness of this disengaged form of delivering justice. New ideas about the importance of judicial emotional management, especially in the Lower Courts, which include more active, collaborative attitudes, emphasizing direct communication, increased attention to the personal circumstances of defendants in court, and the need to acknowledge the human interests at stake, are redefining society’s ideas of what constitutes “good judging.”
I LOWER COURT
Judicial opportunities to directly engage defendants is almost exclusively limited to the Local Court, as list time constraints and courtroom intimacy, make face-to-face communication central to these proceedings. The positive effects of judicial engagement were illustrated in R. v Cleveland, in which a self-represented defendant faced an assault charge against her mother. During her defense, Cleveland engaged in a conversational exchange with the Magistrate, who regularly interjected to clarify or illicit additional information about her family life. When the defendant finished speaking, instead of sentencing her immediately, the Magistrate ordered she go with police to the Caritas Psychiatric Centre for an evaluation, as she was “gravely concerned for [her] mental health and safety.” When Cleveland began to break down and c...
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...gnificant interests were in the balance.
As the defendant is the individual most seriously impacted by the judiciary’s decisions, Judge’s active emotional engagement, emphasized communication, and greater recognition of the individual interests at stake, are important indicators of procedural justice. Although the Lower Courts are not typically perceived as modeling the judicial process, in the court observations, they provide defendants with more time to speak, engaged in more face-to-face contact with judges, and were treated with more respect and compassion by the judiciary than those observed in the Upper Courts, which make them surprising spaces of procedural justice. These observations were in accordance with more novel and compassionate views of what constitutes “good judging,” and contradict McBarnett’s theories of the ideology of triviality.
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