Rozprawa sądowa jako zdarzenie komunikacji społecznej

Date of release of electronic version under CC-BY-SA license: September 2024

Trial as a social communication occurrence

characteristics of trial as a communication occurrence; (2) the involvement of non-professional participants of court proceedings in the trial. In order to achieve the above mentioned aim it was necessary to provide answers to the two following questions:

(1) What are the characteristics of trial as an occurrence of communication considered as a model?

(2) How the 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?

It is worth emphasizing the motivation behind the commencement of this research. Firstly, there is a number of opinions formulated by the representatives of different social groups (including lawyers), according to which communication in court proceedings (and at the trial) is formalized, complicated and creates communication barriers which may influence the real access to court of individuals with limited knowledge about the specific nature of this type of communication. Secondly, in Poland one can observe a growing conviction that language, also in the legal and administrative sphere, should be simplified.

In this context, it is interesting to point out that to date two monographs on the topic of communication process during trial (as a part of the Polish court proceedings) have been published. The subject of both monographs is limited to criminal trial and neither of them answers research questions raised in the publication.

While working on the publication empirical as well as analytical methods were used. The main research (empirical) method was a participant-observation conducted in a natural setting. However, when analyzing the subject of the study, theoretical concepts developed in different fields of science, e.g. science of communication, linguistics, law science (including sociology of law) or philosophy of language were applied. These concepts were regarded as complementary to each other.

This publication comprises the Introduction, three chapters and the Conclusion.

The Introduction presents the aim of the publication, the main research tasks and the motivation for research.

The first chapter consists of the main assumptions organizing the research process as well as the determination of the choice of theoretical concepts and the review of the Polish and foreign research on the communication process in the courtroom.

This chapter is also dedicated to the empirical research methodology. The participant- observation was the main research method used in the course of empirical research. The empirical data includes the record of 250 trials. After permission, the trials were voice-recorded what resulted in about 160 hours of data. In case permission was denied, the trials were recorded in writing in accordance with a prepared formula. The observed and recorded trials were held in three common courts (the Regional Court of Szczecin, the District Court Szczecin-Prawobrzeże i Zachód and the District Court Szczecin-Centrum), as court proceedings of first instance. The research focused on the following types of court cases: (1) civil cases (in contentious and non-contentious proceedings); (2) commercial cases; (3) labor law and social security cases; (4) cases proceeded by family courts; (5) criminal cases and penal fiscal cases; (6) misdemeanor cases. The percentage distribution of the observed court cases of certain types (e.g. civil, criminal or commercial) is the same as those disclosed in court reports from the year preceding the beginning of observation. The observation was being conducted from June 2014 to June 2015 in person by the author of this publication.

Additionally this chapter deals with to the so-called ontology of research, which constitutes the conceptual framework of the publication (main terms and assumptions which justify the choice of certain terminology applied by the author). In this chapter, some crucial terms like: “communication”, “communication act”, “communication context”, “situation context”, “feedback”, “trial”, “participant (professional, quasi-professional and non-professional) of a trial” were defined. Furthermore, on the basis of the applied assumptions, it was possible to develop a communication model.

The second chapter provides characteristics of the trial perceived as a communication occurrence. The genre conception (of text or communication occurrence) and especially the genre pattern developed in linguistic speech genre theory formed a theoretical and methodological basis of considerations in this chapter. The analysis of trial seen as a communication process included four aspects of genre pattern – structural, pragmatic, cognitive and stylistic. During the analysis, the elements of genre pattern of trial determined by legal norms (normative pattern) and also by practice (usual pattern) were taken into consideration. In order to detect the elements of the usual pattern, the empirical data were used. When exploring certain aspects of the genre pattern of trial various theoretical conceptions were applied.

The third chapter is concerned with the real communication acts at the trial. In this chapter the analysis of empirical data was of prime importance and was more systematic – it was conducted in accordance with the detailed research questions and analytical categories. The analysis was conducted from the point of view of: (1) the presiding judge’s communication acts addressed to the non-professional participants of court proceedings and (2) the communication acts of the non-professional participants of court proceedings. These two perspectives are connected with the assumption that the presiding judge (as a type of court proceedings participant) has the highest genre competence when it comes to the genre pattern of trial, while the non-professional participants of court proceedings have the lowest. Therefore, the non-professional participants of court proceedings may encounter difficulties during their activities at the trial, whereas the presiding judge is able to, at least to some extent, counter these difficulties.

In this chapter the results of analysis conducted from the point of view of the presiding judge’s communication acts addressed to the non-professional participants of court proceedings were presented. The communication acts of the presiding judge which were analyzed were related to three procedural functions performed by him or her: (1) a leading- intermediary function; (2) a leading-coordinating function and (3) a leading-order enforcing function. In relation to the first function, the presiding judge is an intermediary between the law system and the non-professional participants of court proceedings, therefore the presiding judge’s instructions for the non-professional participants of court proceedings needed to be scrutinized. Within the second function the presiding judge coordinates interactions in the courtroom. With regard to this function, communication acts of the presiding judge were analyzed, both those which can assist the non-professional participants of court proceedings to take part in the interaction and those which can affect their understanding. In reference to the last issue, the use of legal terminology in communication process with the non-professional participants of court proceedings was examined. Finally, within the third function the presiding judge controls the accuracy of application of the trial pattern. In reference to this function, the presiding judge’s reactions caused by the non-professional participants of court proceedings contravening the trial pattern (especially the normative pattern) were scrutinized.

Moreover, the results of the analysis conducted from the point of view of the communication acts of non-professional participants of court proceedings were offered in this chapter. The empirical data was analyzed in order to determine: (1) the usage of legal terminology by the non-professional participants of court proceedings, the substitution of legal terminology by other types of vocabulary and the procedural acts performed in a “non-juridical” way; (2) the performance of procedural and interaction roles by the non-professional participants of court proceedings, in particular: (a) initiation of certain acts and controlling of the flow of the trial, (b) realization of these elements of complex procedural acts which require specific activity (a free statement and asking questions by the non-professional participants of court proceedings during the examination), (c) usage of “linguistic tools of security” related to the legal obligation to testify the truth and not to conceal it, (d) creation of the “face” of the non-professional participants of court proceedings by using acts of argumentation which can form a perception of certain states of affairs or people and acts of persuasion which are designed to increase effectiveness of communication acts.

The Conclusion provides final remarks to the publication. In this part certain characteristics of the trial considered as a model were reiterated, in particular the fact that the structure of the trial is not finite and closed. The communication acts and occurrences created due to communication practice and disclosed in the empirical data were also indicated. In addition, the issue of the usage of legal terminology and formalization of the communication process in the courtroom were reconsidered. Issues indicated in the discussion of the communication aspects of court proceedings can be perceived as strong determinants of the communication process in the courtroom. In this context, a number of questions were posed about the possibility and the appropriateness of elimination (or reduction) of both before-mentioned phenomena, and as a consequence of that, a question was raised about the possibility of limiting their impact on the communication process during the trial. Eventually, in the Conclusion, importance was brought to the conduct of the empirical research, especially when it comes to the socio-cultural reality which is co-created by the legislator. For this reason, it was demonstrated how the results of the empirical research provided by this publication can be found useful.