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Sharyn Roach Anleu, Matthew Flinders Distinguished Professor, School of Social and Policy Studies, Flinders University
Kathy Mack, Emerita Professor, School of Law, Flinders University
Jordan Tutton, BA Candidate, LLB/LP Candidate, Flinders University
Excerpt: Abstract and Part III, p 638-660. Footnotes omitted. They can be found in the original via the link above.
III. A Place For Humour
The risk that judicial humour may undermine core values, in conjunction with the restrictions and potentially harsh consequences for extreme misuse of humour, may suggest that humour should be absent from the courtroom. However, there is considerable evidence of the presence of some humour in court and a recognition that the courtroom can be a proper place for judicial humour.
In what literature exists on humour in the Australian courtroom, there are suggestions that humour occurs and is acceptable. Deputy Chief Magistrate Cannon writes that ‘[a]nyone who watches a jury trial will recognise elements of theatre, high drama and humour’. Similarly, referring to the New South Wales Court of Criminal Appeal, Justice Peter McClellan and Christopher Beshara claim that ‘[i]n spite of the distasteful subject matter with which it sometimes deals, the court can occasionally be the source of humour’. The Australasian Institute of Judicial Administration’s Guide to Judicial Conduct recognises the presence of humour, commenting that ‘[t]he trial of an action, whether civil or criminal, is a serious matter but that does not mean that occasional humour is out of place in a courtroom, provided that it does not embarrass a party or witness’.
Court observation studies from different jurisdictions note the occurrence of humour in courtrooms. Scarduzio states that ‘[h]umor was employed by many of the 12 judges … observed’ in two United States municipal courts. Also in the United States, Sarat found that some judges in Wisconsin state trial courts ‘frequently engaged in conversation and joked with both lawyers and litigants’ and Anesa noted that, in one Californian jury trial, ‘humor and wittiness emerge[d] constantly’. In England and Wales, Darbyshire observed that ‘a few judges used humour in the courtroom to good effect, to ease tension. Several were natural comedians. Counsel and jurors were smiling in anticipation of entertainment as soon as they walked in’.
As discussed in more detail below, interviews with Australian judicial officers suggest that there is an understanding and acceptance of judicial humour in court as well as an awareness of the risks. For example, one judge remarks that humour is
important to some individuals. It’s important to me and I find myself doing it more than I probably should. It’s discouraged … in court … any number of appeal judges at conferences will tell you there’s no place for it … I find that difficult to accept and there’s not much I can do about it and so I restrain myself as much as I can but for me seeing the funny side of things is important and I don’t stop myself from doing it sometimes in court.
Another judge comments in an interview that ‘there’s a place for judicial humour or appropriate levity, not inappropriate levity’.
Similarly, an examination of transcripts from proceedings in Australian magistrates courts provides further examples of judicial humour in the courtroom. While the interview data give the views of the Australian judiciary, the transcript data offer an insight into what actually occurs in court. Analysis of both kinds of data leads to a clearer identification of the ways in which humour can be crafted for use in the courtroom.
A. Factors Affecting Appropriateness of Judicial Humour
Determining whether judicial humour is appropriate or acceptable is a complex task for judicial officers. As Justice Mason advised, ‘[h]umour must always be moderate, measured and appropriate to the occasion’.
The literature tends to treat instances of judicial humour as either appropriate or inappropriate, reflecting the limited consideration given to judicial humour in court, especially in the Australian context. However, we find that instances of judicial humour cannot be classified into binary categories of appropriate and inappropriate, acceptable and unacceptable, or proper and improper. It is more useful to analyse judicial humour along a continuum with regard to how appropriate or acceptable it is, and to consider the circumstances or ways in which humour might be appropriate and acceptable. This article uses the terms below to describe incidents of judicial humour as revealed through our empirical research, including interviews and a court observation study. Each term should not be understood to form a discrete category of appropriateness, but rather to describe identifiable distinctions between different kinds of humour along a continuum.
1 Appropriate judicial humour enhances core values by promoting procedural justice, maintaining legitimacy or relieving tension, such as a remark which puts at ease a party or a witness who is unfamiliar or uncomfortable with the court setting.
2 Acceptable judicial humour neither enhances nor detracts from legitimacy, as in joking with a lawyer at a time or in a way that does not exclude other court users.
3 Inappropriate judicial humour detracts from impartiality, perhaps through sarcasm or ridicule of a limited or minor kind, but does not breach a regulatory regime. There may be informal consequences for its use, such as loss of reputation.
4 Unacceptable judicial humour, such as extreme ridicule or sarcasm, detracts from the core values to such a degree that it breaches one or more regulatory regimes. There may be formal and informal consequences.
At its best, judicial humour will be intended to have, and will achieve, a positive effect on courtroom proceedings and on participants. Crafting appropriate judicial humour involves considering a range of factors. These include the intended purpose of the humour, to whom or what it is directed, and the type of humour (jokes; spontaneous conversational humour such as wit, irony or sarcasm; unintentional humour), considered in light of the specific context of the courtroom including features such as who is actually present in the courtroom, the nature of the matter and the type of proceedings.
Balancing these many dimensions requires considerable, skilled court craft, as recognised by a number of judicial officers interviewed, who stress the need to be careful and cautious when using humour. In their interviews, three judicial officers describe their humour as being ‘a bit of lightheartedness’ or ‘a little bit of a joke’, or suggests that judicial officers can use humour ‘in a mild way’.
Perhaps as a result of this caution, much judicial humour is comparatively slight and not especially funny, as extracts in this article suggest.
1. Purpose of the Humour
Appropriate judicial humour will always fulfil some legitimate purpose in the courtroom. Perhaps the most widely approved use for judicial humour is ‘icebreaking’ — relieving tension among the participants in court. The Australasian Institute of Judicial Administration’s Guide to Judicial Conduct comments that ‘[i]ndeed [humour] sometimes relieves tension and thereby assists the trial process’. Justice Kyrou also argues that a positive mood in the courtroom ‘can ensure that the hearing is conducted in an efficient and harmonious manner’. This function of humour is also cited in public statements from senior judicial officers, research and commentary. Former Chief Justice Gleeson comments: ‘Some judges, out of personal good nature, or out of a desire to break the tension that can develop in a courtroom, occasionally feel it appropriate to treat a captive audience to a display of wit’.
Chief Justice Gleeson’s remarks imply some concern, perhaps for the ‘captive audience’. In our interviews, one judge describes the role of judicial humour to set participants at ease: ‘You try to bring a bit of lightheartedness into the matter or, you know, make, try to make some comment that makes people feel at ease … the lawyers, the litigants, the witnesses’. This judge articulates the purpose of his humour as putting the court participants ‘at ease’ in the tense, formal atmosphere of the court. Another judge identifies the utility of judicial humour to relieve tension, recalling that ‘one judge who’d been a judge long before I, sort of told me that it’s always good to be able to make a little bit of a joke just to relax the area in the courtroom’.
Several judges remark specifically on their use of humour when presiding in a jury trial:
You can easily use [humour] in a mild way with juries because juries are, as I said they are lay people in a very unfamiliar environment doing a very responsible job, very responsible job, and they’re just thrown together, 12 people, chances are [they’ve] never met before … So I tend to be reasonably personal in my communications, by personal I mean engaging not personal, engaging, and I’ll make a joke … and it just engages and I’m hoping it helps them to feel a bit more comfortable … just things like … where I try to help them to encourage them, to relax a bit and to tell them what their job is and make sure they’re comfortable.
Another judge remarks:
I think it’s quite important to maintain good humour especially in a jury trial but also when it’s just barristers … with the jury I try to develop a relationship … I’ll say well when I’m telling them about the administrative arrangements for lunch, you know, you’ll get an allowance but … I don’t suppose you’re going to dine high off the whole [sic] or something like that and they’ll all smile and a little bit of ice gets broken.
A fundamental feature of humour is alluded to by this judge. Humour is recognised as being distinct from laughter, although the two often coincide. That distinction is particularly important in the context of the courtroom. Laughter is an audible, vocal expression, usually responding to humour which is very funny. The second interviewee suggests that he expects only a limited expression, such as smiles, implying that humour which elicits open laughter may be too far at odds with court decorum.
In addition to the formal atmosphere of a courtroom, these interviewees suggest other causes of discomfort for jury members: the mixture of an ‘unfamiliar environment’, their ‘very responsible job’ and being ‘just thrown together’. Jury members may be particularly susceptible to feelings of discomfort in the courtroom, and so judicial humour can be especially important to them. Judicial humour is first able to ‘relax’ or ‘help [jury members] to feel a bit more comfortable’ by defusing tension; and second, it can ‘encourage’ or engage jury members with the proceedings. These examples of humour are therefore appropriate. Anesa’s research appears to support this finding, as she noted from her observation study that
[a]t the beginning of the instruction phase, instead of starting immediately to read the jury instructions, the judge spends a few words on extra-textual references and tries to create a more familiar and relaxed atmosphere … given that it is the first day of the actual trial and for some of them it may be the first time they serve as jurors.
However, judicial humour used when directing a jury has recently been criticised on appeal, though no misdirection was found. Tate JA (with whom Whelan JA and Santamaria JA agreed) commented that the ‘amusing’ story could have been perceived as ‘flippant’ or ‘distracting’ and therefore ‘inappropriate to a jury in the very serious task on which they have embarked’.
The utility of judicial humour in relieving tension for lay people extends beyond reassuring jury members. It can also assist people giving evidence as a witness in the unfamiliar courtroom environment.
One judge gives an example of using humour to put witnesses at ease:
If I’m explaining to a witness that they must keep their voice up, I say ‘that microphone in front of you will amplify your voice but if you drop your voice you won’t hear it, and of course if you lean forward like I am now’, and I lean forward into my microphone and talk really loudly, ‘you’ll blow the ears off the person that’s listening to the evidence’. You know, just something to make them feel at ease but to explain to them what they’ve got to do in terms of giving evidence …
Even humour which is intended to serve a legitimate purpose may be considered inappropriate if it is directed at a subject matter or person in a manner which is unacceptable in light of norms governing judicial conduct or oversteps some other social or cultural boundary.
2. Topic of the Humour
There are a number of potential subjects for judicial humour in the courtroom. These include courtroom procedure, the judicial officer himself or herself and other participants (whether present in the courtroom or not), such as criminal defendants, civil litigants, lawyers, court staff, witnesses, juries, government agencies, the media and observers. Some subjects are rarely appropriate for humour while others can be, depending on other aspects of the humour.
Where the subject of the humour is the procedure of the courtroom, rather than the substance of the matter before the court, it is more likely to be appropriate, as the following excerpt from the court observations suggests:
Magistrate: If my maths is correct, we’ve had a lot of maths mistakes so far today.
Prosecutor: I’m not even going to dare enter that, sir.
In the case above, the magistrate crafts a reference to the poor mathematical skills of the court. His remark is slightly humorous because of the irony of casting doubt on his own calculation. In another matter, the defendant was to be sentenced for several driving offences. However, in a protracted process of determining administrative matters, the following exchange, involving a different magistrate, occurred:
Magistrate: … OK, what’s the charge — what’s the case number?
Prosecutor: Charge number is H-9-9 … 9-9-9 … that’s three nines.
Magistrate: That’s four nines, isn’t it?
Prosecutor: No, there’s five.
Magistrate: [laughs briefly]
Prosecutor: Five nines, then one zero …
The humour in this matter arises from the repeated failure of the magistrate and prosecutor to determine precisely how many nines exist in the charge number. In this circumstance, the magistrate’s laughter does not undermine courtroom decorum or show disrespect for any participant.
In the matter below, a magistrate does not believe that the Court has jurisdiction:
Magistrate: Generally speaking they haven’t quite given the Magistrates Court the, you know, conspiracy and incitement jurisdictions yet, although that will probably come next week.
Defence: Got arson.
Magistrate: We’ve got arson and we have got some things which are odd, there’s no doubt about it.
In this example, the magistrate is referring somewhat wryly to the substantial increase in magistrates courts’ jurisdictions as a result of moves in several states and territories to cut costs and reduce pressure on the superior courts. While the substance of this comment could potentially undermine public confidence, by suggesting that courts may be faced with matters they are not suited for, it is not the humour itself that creates concern. In all three extracts above, the comments relate primarily to the business of the court and do not ridicule or demean any individual. In addition, they indicate a frustration which may be shared with other court users. Although their ‘in-group’ nature may exclude some courtroom participants, these comments are examples of acceptable or appropriate judicial humour because they may relieve tension, improve court user experience and do not appear to detract from core values.
Self-deprecating judicial humour happens on occasion and can be appropriate. Former Chief Justice Brennan praises ‘a sense of humour that allows the mind to concentrate on the issues without taking oneself and one’s preconceptions too seriously’.
In one matter, a magistrate is confused by what a defence lawyer is submitting. He comments:
Magistrate: Sorry, I’m confused already.
The use of ‘already’ suggests that the magistrate was confused more readily than might have been expected. It implies that his confusion was inevitable and not the fault of the lawyer’s presentation to the court. Although the magistrate may not have intended for the comment to be understood as humour, and may have implied criticism of the submission, its ironic nature provides an example of small and measured judicial humour. Another magistrate uses mild self-deprecating humour by referring to his hearing difficulties. In one matter, he apologises for mishearing a defendant:
Magistrate: I’m sorry, I’ll be getting my hearing aid later this week …
In a later matter, he again references his hearing:
Applicant: I’m a bit hard of hearing.
Magistrate: Well it makes two of us so we’ll both speak up, how’s that okay, can you hear that alright?
Applicant: Yes thank you.
These comments can be interpreted as using humour to deal with a problem of communication in the courtroom by the magistrate blaming himself rather than the lawyer or a party for any misunderstanding.
Both examples demonstrate that self-deprecating humour is likely to be, at least, acceptable because it does not offend core values of the judiciary, and can be appropriate. In the context of mediation, Coburn, Batagol and Douglas found that humour can have the positive effect of ‘demolishing the sense of hierarchy between mediator and party’. Following this reasoning, self-deprecating judicial humour can relieve hierarchical tension between the court users and the judicial officer. The magistrates in the examples above expose human frailties (in the form of confusion and hearing difficulties) and, in the second example, identify a shared difficulty with the defendant. However, such humour could potentially undermine core values. For example, public confidence in the magistracy may be damaged if a particular magistrate routinely quipped that he or she was confused by proceedings or unable to hear the participants. One element in ensuring that self-deprecating humour does not detract from core values is to employ humour that is relatively minor, as the interviewees above suggest.
Humour directed towards or at the expense of a litigant or defendant is very rarely acceptable, if ever. The hierarchical relationship between the judiciary and court users, and the power of a judicial officer in court, severely limit the acceptability of judicial humour. As King advises: ‘Humorous language may be appropriate in court situations … However, care should be taken that the use of humour is not at the expense of the participant or other people involved in the court program’.
In one interview, the judge indicated that he could not laugh in situations where people would otherwise chuckle. He gave the example of where a defendant might be clumsy. These comments reflect the profound distinction between the courtroom and other contexts. The core values, particularly judicial impartiality and court decorum, can be so easily undermined or offended by judicial humour relating to the defendant that it will almost always be considered inappropriate or unacceptable.
Special care must be taken with litigants in person or unrepresented parties, who appear frequently in the magistrates courts. Consider the following example, where an unrepresented defendant was being sentenced for possessing cannabis:
Defendant: I suffer with arthritis and it just helps with those —
Magistrate: I see.
Defendant: — sorts of pain. That’s all.
Magistrate: It might be cheaper if you took prescription medicine …
Defendant: Yeah. Well, if that was available, I would, your Honour.
Here, the comment does not appear to be defusing tension for any court participant or to have any other positive purpose, nor does it appear to be sincere, helpful advice, although the defendant’s response suggests that the remark was taken in that spirit. Rather, it appears to be an expression of judicial frustration with the defendant’s behaviour, communicated in a way that could be perceived as humorous.
The need to respect individual defendants or litigants as people who expect to be treated fairly is made apparent by contrast with the willingness of judicial officers to make joking remarks about ‘faceless’ court users such as government authorities or corporate entities:
Magistrate: I am prepared, in those circumstances, to put this down as an isolated incident and I am prepared in such circumstances to allow your record to remain intact insofar as the commission of this offence is concerned by dismissing it. However, the Roads and Traffic Authority in their infinite wisdom will still apply the demerit points. I have no power in that regard.
This comment implies a shared frustration with the Roads and Traffic Authority. If the magistrate had made a similarly sarcastic comment about a criminal defendant or civil litigant deciding something in their ‘infinite wisdom’, it would probably be considered inappropriate.
Members of the legal profession are regularly the subject of judicial humour. There are many popular anecdotes involving joking between the Bench and lawyers, including accounts of lawyers being targets of judicial wit. Our research also finds that judicial officers often direct quips towards individual lawyers and the legal profession at large. These include banter between the legal representatives and the judicial officer. However, extended analysis of judicial humour directed at or shared with members of the legal profession is beyond the scope of this paper. The appropriateness of such humour is influenced by the professional relationship between the judiciary and lawyers in court, and raises different issues than judicial humour used primarily in relation to lay participants.
3. Context of the Humour
Even where judicial humour is appropriate or acceptable with reference to its purpose and topic, it may nonetheless be inappropriate or unacceptable because of particular circumstances in the courtroom. Features of the courtroom context which affect the appropriateness of judicial humour are: (a) who is present in the courtroom; (b) what the nature of the matter is; (c) what the outcome of the matter is; (d) when the humour occurs; and (e) to whom it is accessible.
(a) Presence in the Courtroom
The appropriateness of humour may hinge on who is or is not in the courtroom. In particular, the presence of people directly involved in the matter is significant. The two following comments, from a judge and a magistrate respectively, demonstrate their readiness to use humour depending on who
I tend to avoid it [humour] because it’s not generally, not, look if I’m there with just counsel, umm, and there’s something that, you know sometimes you can lighten the mood a bit with, but if there are members of the public, the parties, I tend to avoid it because it’s serious for them … I just don’t think that umm, it’s respectful to people to be joking about things when they’ve got very serious matters before the court.
Just got to be so careful with humour I think, and I say if I was to say something that I thought was funny, I would say it possibly to counsel, not with a defendant there, so, you know, just in terms when you relax a bit but I’m a bit careful with humour with defendants.
Both of these judicial officers make two significant points on how the presence of individuals in the courtroom affects the appropriateness of humour. First, they suggest that humour of any kind is less acceptable where there are people directly affected by the case (defendants, parties) or members of the
public present in the courtroom. Second, they are more willing to use humour when only legal counsel is present.
A comment from one judge specifically highlights the importance of being careful with humour when people affected by the case are present, even if not directly party to the action: ‘One has to be very careful about judicial humour because you’ve got victims and you’ve got relatives of families’.
This interviewee specifically identifies victims in criminal matters and relatives of those involved in a case as being the kinds of people who, if present, require the judicial officer to adhere to standards of conduct which clearly communicate respect for the seriousness of the proceedings. This goes beyond the concern previously mentioned, of humour directed at a party. In some circumstances, any humour which undermines the seriousness of the matter, at least in the eyes of those present, would be unacceptable. This is consistent with the need to maintain courtroom decorum and, more importantly, to show respect for the process itself as well as individual participants or parties.
In situations where the defendant does not appear in court, judicial humour appears more relaxed, and joking by the judicial officer is less restrained. For example, in a matter where the defendant is not present, the magistrate remarks:
Magistrate: What else have we got? Appearance — any appearance of [defendant]? No? Mr [defendant] doesn’t like coming.
The humour in this remark may appear to conflict with the principle that humour directed at a defendant is very rarely acceptable. Arguably, the need to respect the defendant individually or personally is reduced slightly because he or she is not there, though it is also important for the magistrate to be seen to protect the interests of an absent party. In any event, an implication of disrespect for defendants as a category would be inappropriate, regardless of the presence of other defendants or public observers.
Humour may be regarded as less appropriate where litigants, defendants or other parties directly affected by the matter are in attendance. On the other hand, lay people in general, such as members of the jury, are considered to be a proper audience for judicial humour, though not a target for it. Where there are only lawyers, or court insiders more generally, in the courtroom, humour seems to be considered more appropriate by the judiciary or other professional participants, including humour at the expense of absent participants or parties, even criminal defendants.
(b)Nature of the Matter
Appropriate humour will be crafted in accordance with the nature of the matter. The serious nature of most cases precludes humour in most forms. As one judge remarks:
You try to bring an appropriate amount of humour to the task, in the — you can’t make jokes about — some cases are so deadly serious there’s not a laugh to be had but at the appropriate time, you know, you try to bring a bit of light-heartedness into the matter … but humour’s a dangerous thing in court. I mean some cases there’s no place for humour, deadly serious, there’s a lot at stake …
The interviewee’s repeated reference to how some cases can be ‘deadly serious’ illustrates the importance of the nature of the matter when employing humour in an appropriate or acceptable way. This speaks to a strong belief — even in advocates of judicial humour — that there are occasions where it should never be attempted. For example, when talking about the need to be careful with humour, one judge advises greater caution for criminal, as opposed to civil, cases: ‘Oh well in a criminal trial you have to be a bit more careful but say in a civil trial if I’ve got one or two well-known high earning QCs before me …’
Another judge more specifically warns about the subject matter of a criminal case, as well as concern about those present:
One has to be very careful about judicial humour because you’ve got victims and you’ve got relatives of families and you’ve got really serious stuff like drugs and death and maiming and fraud and sexual assault and stuff like that.
It appears that many criminal cases, especially those involving serious violence or sexual offences, will rarely be occasions for humour. The reason for this is consistent with the need to maintain courtroom decorum, in particular the need to respect the gravity of the matter for court users.
In particular, sentencing is recognised as a proceeding where humour is inappropriate. Holt explains that
[t]he judge’s sentence is a very serious matter to almost all defendants and should not be treated lightly. Whatever the offender’s attitude, the judge must impress him [or her] with the seriousness of the event if it is to have the desired effect. Levity will not contribute to the sentence becoming a hoped-for turning point in the defendant’s life. The offender must feel the gravity of society’s commands in order to become fully aware of the need to obey them. In any event, he [or she] or his [or her] plight are not appropriate targets for amusement.
Similarly, in Were v Police, Perry J emphasised the need for judicial officers to adhere to particular standards of behaviour during sentencing. His Honour stated that ‘[m]agistrates and other judicial officers are perfectly entitled to speak in direct, straightforward language to defendants during the course of sentencing remarks … But a sense of decorum must at all times be maintained’.
(c) Outcome of the Matter
Additionally, the outcome of the matter appears to have some effect on appropriateness. In one matter, the defendant, a student, speaks at length about matters not relevant to the proceedings. At its conclusion, the following exchange takes place:
Magistrate: Yes … you say … you’re studying Law?
Defendant: I’m not actually. I have a degree in communications.
Magistrate: Well that’s probably good, because if you were studying Law, I would have to tell you that the less you say the better off you are.
Defendant: Very well.
Magistrate: Notwithstanding that, I’ll dismiss the matter …
The advice offered by the magistrate was a humorous reference to the defendant’s overlong submission. By framing it as advice to a law student, the magistrate avoids making a direct criticism of the defendant who is not a law student. By stating that the decision to dismiss was made ‘notwithstanding’ the defendant’s rambling, the magistrate is making clear that the defendant was not disadvantaged.
In another matter, a member of the Army is charged with an offence arising from public urination. After hearing the defence representative’s plea in mitigation, the magistrate speaks directly to the defendant:
Magistrate: I accept that [the defence representative] has said to this court that you endeavoured to use other facilities without success; that’s unfortunate and I don’t know what the proper remedy to your predicament would have been at this point in time, but this sort of conduct is the sort of conduct which should be anticipated before you leave licensed premises. The last port of call, to borrow from the Navy for your purposes [defendant], should be the toilet before you go out into a cold night, because you know, from prior experience, it’s not the first time you’ve drunk too much is it?
After delivering his decision to dismiss the charges, the magistrate concludes the matter by saying:
Magistrate: Thank you [defendant]. Off you go to face your Company Commander. It would be easier to face me I think.
There are two instances of judicial humour in the matter: word play (‘port of call’) which occurs before the magistrate delivers the decision to dismiss the charges; and a reference to military discipline, which occurs at the very end of the matter. The previous example and both instances of humour in this example accompany a favourable decision, and so there is less risk of the magistrate appearing biased. Of course, where the outcome is not favourable to the party, the same expression of humour could have a significantly different meaning, as it could suggest the decision may have been affected by bias against the party.
(d) Timing of Judicial Humour
These examples suggest that the timing of judicial humour is important. For example, had the Magistrate jokingly rebuked the student defendant well before offering her decision to dismiss the matter, real concerns about her impartiality may have arisen. In another case involving 110 charges, a magistrate makes an ironic comment at the start:
Magistrate: Mr [defence representative], I think your matter might be a shortish matter? I appear to have another one hundred and something charges.
Defence: [laughs] 110, Your Honour.
The defence representative’s laughter may suggest that the comment was both intended to be and perceived as humorous. This example occurs amongst a series of questions on administrative and business matters, before any consideration of the substance of the actual criminal offence. At the start of another matter, the defence representative greets the magistrate:
Defence: How are you?
Magistrate: Always the same. It’s in the mind, I think. You’ve got to tell yourself fibs.
Each matter is criminal and the defendant is present, which would ordinarily preclude judicial humour from being regarded as appropriate. Yet both examples are closer to being at least acceptable rather than inappropriate.
They do not make fun of a courtroom participant, and they are isolated from serious matters by time; both occur at the very beginning of the matter as part of the business of the courtroom.
(e) Accessibility of Judicial Humour
Some judicial humour, even if separate in time from serious matters, can still have the effect of excluding other courtroom participants, especially the defendant. Kalowski stresses that appropriate judicial humour can be characterised by its accessibility: that litigants are able to understand and laugh along with the judge and lawyers.
I am sometimes asked by judges in workshops ‘is it OK if I crack the odd joke to lighten the mood in the court room?’. Nearly always when a joke is made, it is the judge and legal representatives who laugh. If a litigant is unrepresented, he/she feels left out of ‘the club’. Spontaneous humour in which all can join is a different thing.
This view is echoed by one of the judges who distinguishes between spontaneous humour and prepared jokes, approving of the former as it is more appropriate to the courtroom setting:
Yeah, well jokes generally go wrong, just humour, or just observing something that’s funny because it’s happened and it’s funny, umm, generally doesn’t go wrong because most people will find it funny but trying hard to tell a joke, yeah, there’s probably a better place to try, so, yeah.
Another judge comments: ‘You have to have the capacity to have, to see humour in things as much as you can — make people feel that it’s not too stiff ’.
In contrast, several interviewees give examples of prepared jokes that they would use to relieve tension in the courtroom with juries and witnesses. Although these were prepackaged, they were crafted deliberately to be inclusive, and the judicial officer would have had an opportunity to observe the response and to reuse or refine those jokes perceived to be effective.
Accessibility is closely related to language and the topic of the humour. For example, one magistrate expresses frustration with the delays in a matter by commenting about the date set for the next court appearance:
Magistrate: 14th July is Bastille Day. Somebody’s head will come off if the matter does not reach finality at that time.
This use of judicial humour requires a somewhat sophisticated understanding to recognise the connections among Bastille Day, the French Revolution and the guillotine as the preferred method of execution. While this may be understandable to the legal professionals in the court, it may be less accessible to other court participants and thus less acceptable. By contrast, as Anesa discusses, judicial humour which is delivered in colloquial or everyday language is more likely to engage litigants, criminal defendants, jurors or witnesses.
However, humour which may be colloquial, such as the reference to the Roosters and the Warriors discussed above, can still be inaccessible to some court users and therefore unacceptable.
4. Perceptions and Power
Judicial humour must not detract from core values. It should serve a legitimate purpose, address a suitable topic and have regard to the particular context. However, the factors identified above do not form a strict set of rules which dictate the appropriateness of judicial humour. These elements interact in different ways, and even where they all suggest that judicial humour will be appropriate, the result can still be inappropriate because of the influence of perception and power.
The power differential between the judicial officer and other court participants can affect the appropriateness of judicial humour. Scarduzio points out that, because of ‘the power of the judge’s position … [j]udges had the ability to make these types of jokes, whereas defendants did not’.
Even a remark made only to lawyers may become inappropriate if the judicial officer is not mindful of the very real power differentials within the courtroom. As Pannick warns, ‘[o]ccasionally [judicial humour] becomes a misuse of power by holding up to ridicule the unfortunate and defenceless butt of the joke’, meaning that ‘[j]udicial humour can turn into judicial scorn’ or even judicial bullying.
Another aspect of the power differential is the phenomenon whereby court participants feel compelled to laugh at judicial humour whether or not it is funny. Former Chief Magistrate Fingleton states: ‘even if you think, as a judicial officer you are being amusing in court, you never really know, because all parties want to get along with you and will laugh uproariously at anything you say, short of the sentence!’
Similarly, former Justice Kirby describes one of the deadly courtroom sins as ‘failing to laugh appropriately at judicial humour, injected deftly to relieve the tension or tedium of the court’.
An aspect of the appropriateness of humour is the point of view or response of listeners. What is perceived as humorous by one person may not be to another, or what is funny to a participant may appear differently to an outsider or vice versa. The following example, in which the defendant is being sentenced for a traffic offence, illustrates this challenge:
Magistrate: The older you get sometimes the powers of concentration diminish … That’s a fair assessment of the way life operates, isn’t it? You must be a little more careful that you — that you drive …
Defendant: [inaudible] I usually have my wife in the car and she makes sure I drive very carefully.
Magistrate: Does she? Wives are like that, so I’m told — by my wife. What are you asking me to do Mr [defendant], let you off ?
In this matter, the magistrate appears to be attempting to relate to the defendant in a direct and personal way, showing sympathy for the effects of aging and articulating a shared experience of driving with their wives. While the purpose for which the humour is used is positive, and the specific wife who is the target or object of the humour is apparently absent, the sexism or negative stereotyping on the basis of gender makes it inappropriate. The last sentence also has an air of sarcasm or impatience which does not bode well for this defendant, in spite of the apparent sympathy shown earlier.
One observed matter involving the theft of several pieces of hardware illustrates the difficulty of crafting appropriate humour, the complex interaction of the various factors and the different perceptions which may exist. This Magistrate expresses surprise at the cost of the stolen goods as outlined by the prosecutor:
Magistrate: For two hammers and three pair of pliers, $450?
Prosecutor: It appears to be so, yes, your Honour.
Magistrate: Silver plated, were they?
Prosecutor: I’m unsure, your Honour. The total cost.
Magistrate: $450 for two —
Prosecutor: I gather [they] must be of quality, your Honour.
Magistrate: That’s unbelievable.
The magistrate’s comment — ‘silver plated were they?’ — entails clear sarcasm, and effectively communicates the magistrate’s scepticism towards the size of the claim. The defendant and others in the courtroom may have shared the magistrate’s view that the amount was ‘unbelievable’ and appreciated the robustness of the comment. However, the prosecutor responds literally, as though the magistrate were asking a serious question, and attempts to justify the amount by indicating the tools were ‘of quality’.
In spite of the considerable risks in using humour, judicial officers who are able to or take the trouble to craft appropriate humour can have significant positive effects, as discussed in the next section.
B The Importance of Appropriate Judicial Humour
The importance of the subjective experience of court users for their perception of the legitimacy of judicial authority is well established. Lind and Tyler identify the ‘capacity of each procedure to enhance the fairness judgments of those who encounter procedures’. The importance for court users to experience procedural justice is emphasised by Tyler, who argues that ‘people’s willingness to accept the constraints of the law and legal authorities is strongly linked to their evaluations of the procedural justice of the … courts’. His research shows that procedural justice enhances perceptions of legitimacy.
A court user’s experience of procedural justice in this social or psychological sense can be enhanced by the use of humour. Humour used positively can reinforce social relations and connectedness. A judicial officer’s demeanour which displays ‘some degree of engagement … [can] communicate fairness in a richer sense and … reinforce legitimacy’. On this basis, subjective procedural justice can be enhanced by humour because it can show judicial engagement. Humour is a form of human interaction; its use can demonstrate that the judicial officer is listening, show respect for the parties and suggest that the court users and the judicial officers are not entirely distanced by their roles.
Judicial humour which demonstrates that the arguments of litigants, criminal defendants, lawyers or other court users have been ‘heard and considered’ is likely to promote the feeling that procedural justice has been afforded to them. In one matter, involving a charge of driving under the influence, the magistrate dismisses previous offending with a play on words:
Defence: Sir, the defendant is known, the defendant has two previous priors 14 years ago for similar offending.
Magistrate: We’ll say it’s a long time between drinks, Mr [defence representative].
Although the defendant has a history of similar offending and so some consideration of that record would be relevant to determining sentence, the magistrate chose to disregard the previous offences. Notably, the magistrate’s language — the colloquial expression in the formal courtroom — reduces the formality of the occasion in recognition of the defendant’s more recent history of good behaviour. Such an approach by the magistrate demonstrates that the defendant is a ‘valued, protected member of society who will receive benevolence and consideration from the authorities when [he or she] need[s] it’.
The correlation between engaged interpersonal communication and a defendant’s positive experience is commented on by one magistrate, who responds to a question in the interview asking how she knows that her use of engaged interpersonal communication is beneficial. She says:
Well occasionally you’ll get absolute direct feedback in, as in a defendant will actually say to you, umm, ‘oh yeah, thanks for that’, umm and it’s really funny when they thank you for the sentence you’ve just given them. Umm, or occasionally letters will come in from people or you know in the Children’s Court for example I’ve received a couple of letters from parents saying, ‘thank you very much, you know, I understood what’s going on’. Umm, certainly in those courts where you’re actually building a personal rapport with people like in drug courts and to some extent in the Youth Court too, umm, you will umm, oh you just know from the interaction. I mean you actually develop a personal relationship and if it’s a very good trusting one like in the therapeutic type courts you get an enormous amount of feedback so you know it’s working and you see, and you see the result in people’s changed lives.
This judicial officer has described very clearly the potential benefits of a more engaged, humane approach to judging, in which appropriate humour can play an important part.