Professional Emotions in Court

Professional Emotions in Court examines the paramount role of emotions in

the legal professions and in the functioning of the democratic judicial sys-
tem. Based on extensive interview and observation data in Sweden, the au-
thors highlight the silenced background emotions and the tacitly habituated
emotion management in the daily work at courts and prosecution offices.
Following participants ‘backstage’ – whether at the office or at lunch – in or-
der to observe preparations for and reflections on the performance in court
itself, this book sheds light on the emotionality of courtroom interactions,
such as professional collaboration, negotiations, and challenges, with the
analysis of micro-interactions being situated in the broader structural re-
gime of the legal system – the emotive-cognitive judicial frame – throughout.
A demonstration of the false dichotomy between emotion and reason that
lies behind the assumption of a judicial system that operates rationally and
without emotion, Professional Emotions in Court reveals how this assump-
tion shapes professionals’ perceptions and performance of their work, but
hampers emotional reflexivity, and questions whether the judicial system
might gain in legitimacy if the role of emotional processes were recognized
and reflected upon.

Stina Bergman Blix is an Associate Professor in the Department of ­Sociology

at Uppsala University, Sweden.

Åsa Wettergren is a Professor of Sociology in the Department of Sociology

and Work Science at the University of Gothenburg, Sweden.
Professional Emotions in Court
A Sociological Perspective

Stina Bergman Blix and Åsa Wettergren

LONDON AND NEW YORK

First published 2018
by Routledge
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© 2018 Stina Bergman Blix and Åsa Wettergren
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sections 77 and 78 of the Copyright, Designs and Patents Act 1988.
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ISBN: 978-1-138-23450-5 (hbk)

ISBN: 978-1-315-30675-9 (ebk)

DOI: 10.4324/9781315306759
Typeset in Times New Roman
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Contents

List of figures and tables ix

Acknowledgements xi

1 Why emotions in court? 1

Emotion and rationality 5
Emotion and law: the research field 8
Emotion, law, and morality 8
Morality and objectivity 10
Empathy and emotion management 11
Power emotions 12
The Swedish judicial system 14
Education and the legal professions 14
Prosecutor and prosecution 15
Judge and the court 15
Defence and victim counsels 16
The trial 16
Theoretical framework and key concepts 17
Emotion, emotion management, habituation 17
Social interaction, frame, and ritual 21
Power and status 24
Our findings in an international perspective 26
Structure of the book 28

2 Background emotions in legal professional life 34

The emotional profile of defence lawyers 35
The judge 37
A formative shame/pride moment 37
Pride in status and comfort with power 38
Autonomy 40
General intellectual dealers 41
Procedural justice: an increased service orientation 42
vi Contents
The prosecutor 45
An issue of personality? 45
Mediators, translators, and purifiers 47
Committed to justice 49
Independence and collegiality 52
Conclusion 55

3 Organizational emotion management 58

Time as organizing principle 59
Judges: lamenting the loss of time 60
Prosecutors: constant lack of time 61
Fear and organizational security work 64
Court fears 64
Prosecution fears 68
Teflon culture: emotion management as self-discipline 73
Teflon culture in court 73
Teflon culture at the prosecution office 75
Individualized and collegial emotion management 78
Conclusion 84

4 The dramaturgy of court emotions 86

Setting the scene for the non-emotional ritual 87
Script and legal terminology 88
Front-stage performance and emotional communication 91
Front-stage collaboration to control emotion 93
The prosecutor’s perspective: enacting backstage/front
stage 96
Situated adaptation to ordinary surprises 98
Adjusting to the judge: situated adaptation,
emotional toning 100
Tacit signals 103
The judge’s perspective: backstage preparation and
front-stage presentation 105
Focus and strategic emotion management 106
Front-stage strategic empathy 107
Dramaturgical stress 109
Emotional toning 111
Conclusions 112

5 Power and status in court 114

The autonomous judge: power issues 115
Power discomfort 115
Personalizing or depersonalizing power? 118
 Contents vii
Limitations of power and low status: negotiating
demeanour 120
Power and status in deliberations 123
The independent prosecutor: status negotiations 127
Prosecutors and the police 127
Prosecutors and the judge 130
Prosecutors and lay people 131
More distance – less personalized 132
Judge and prosecutor: power and status challenges 133
Conclusion 137

6 Objectivity work as situated emotion management 140

Objectivity and impartiality 141
Judges: justice must be seen to be done 142
Balancing emotional expressions 142
Aesthetic pleasure, satisfaction, and confidence in legal
evaluation 146
Prosecutors: partial objectivity 150
Balancing emotions of commitment and detachment 151
Aesthetic pleasure, satisfaction, and interest in
legal encoding 155
Objectivity work as collective achievement 157
Conclusion 161

7 Concluding discussion 163

Summary 163
The emotive-cognitive judicial frame and the self 167
Refuges of the emotive-cognitive judicial frame 169
Emotional profiles 170
Background emotions in the legal system – further
reflections 172

Appendix: the Swedish judicial procedure 175

Prosecution and the prosecutor 176
The court and the judge 178
Lawyers 179
The trial 180
References 183
Index 191
Figures and tables

Figures
1.1 Court house of Köping, Sweden. Photo: Helena Björnberg 14
3.1 Court house of Lund, Sweden. Photo: Stina Bergman Blix 64
4.1 Interior of court room and an ongoing trial. Photo: Åsa
Wettergren 88

Tables
7.1 Professional emotional profiles of judging and prosecution 171
Acknowledgements

Years before we began our research project on emotions in courts, Stina

found herself seated next to a judge at a dinner party. When she told him that
she did research on emotions in the theatre, he exclaimed: “That sounds just
like my work, I work a lot with emotions!” He described an incident when
he had “displayed anger” during a hearing with an offensive defendant. He
said that he had not at all felt angry; the display of anger was just a tool to
move the proceeding forward. Later that day, he was on the train on his
way home, reflecting on his workday. When thinking about the disturbing
defendant, he suddenly experienced strong irritation: “How rude that de-
fendant was!” The meeting with this judge was surprising both ­because the
judge described himself as doing emotion work and because he described
the time-lapse between his expression of anger and his experience of anger
as being several hours. At that time, we did not know it, but many more
­insightful reflections about emotions in court would follow.
This book is deeply indebted to all of the judges and to all of the prose-
cutors who volunteered to participate in our research project. Forty-three
judges from four courts and forty-one prosecutors from four prosecution
offices have generously accepted our presence as ‘shadows’ and spent hours
of their precious time in interviews, sharing their thoughts and reflections
on emotions in and of their work. Without them, there would be no project
and no book. Special thanks goes to the appeals court judge who accepted
to be interviewed in the pilot we made for the research application, and who
also shared with us invaluable contacts and names of people who might
be interested in participating at our first district court. Special thanks also
goes to the prosecutor who let us shadow him for two days and who initiated
contact with the head of both a prosecution office and a court where we were
then allowed to collect data. This judge and this prosecutor paved the way
for us, not only in the courts and prosecution offices, but also in getting our
research application approved. When proposing previously unresearched
topics, it is crucial to show that the topic of study has resonance in the pros-
pected field and that one has already established initial contacts.
In spite of the fact that so many judges and prosecutors recognized that
our research was relevant and important, we soon realized that researching
xii Acknowledgements
legal professional emotions and emotion management was a sensitive topic.
We therefore decided that it would be wise to initiate fieldwork at each new
location by approaching the chief prosecutors and the presidents of the
courts to inform them about the project and our presence in ‘their’ courts
and prosecution offices. We also asked them to let us give a short presenta-
tion of the project, so that judges and prosecutors could approach us and
volunteer as participants. All of the presidents and chief prosecutors that we
contacted not only granted our request but also wholeheartedly endorsed
our project. They both literally and symbolically gave us the keys to the
courts and prosecution offices, and in some cases even a workspace during
our time there. Knowing that the higher up in the hierarchy – especially
of judges – we move, the more the management is cautious about new and
challenging ideas, we want to express our thanks and our sincere respect for
these chief prosecutors and presidents who supported and trusted us. We
believe that these times are times of rocking the boat of the legal system’s
age-old beliefs about positivist objectivity and pure rationality. In this con-
text, all of the participant judges and prosecutors in our project are pioneers
on fragile new ground.
The project idea was born in August 2010 when we both met at the midterm
conference of the European Sociological Association (ESA) Research Net-
work 11 in Graz. We were familiar with each other’s previous research and
were both in need of a juicy new project idea with which to apply for research
funding, or else we would commit suicide by teaching (Swedish universities
do not finance their teachers’ research). We read a newspaper notice about
a judge and started to talk about the courts as an interesting field. Stina
had used dramaturgical theory before and pointed out the performance of
justice as an interesting project. Åsa wanted to shift focus from research in
the field of migration and asylum, where emotion was overwhelming, to an
area where finding out about the emotions would be an empirical challenge
in itself. We clicked as partners in research there and then, and eight years
later, we are ever so close to finishing the sentence the other begun. Our joint
research has benefitted enormously from this collaboration, and the sum
of the two, in our case, is certainly more than its parts. Ever since then, the
ESA research network has also had emotions and law on its session agenda,
in which we have presented numerous ideas and drafts for articles and chap-
ters of this book. We thank the network participants for all of the valuable
questions and feedback we have received during these years.
Our close research collaboration has sometimes been taxing for our fam-
ilies in various ways, not to mention the hundreds of hours of overtime
that we have spent together working on this book. Both of us are sincerely
grateful to our own and each other’s families for their understanding and
ground-service.
We want to thank the Swedish Research Council for financing the project,
Emotions in Court (No. 2011-1553). We also want to thank The Swedish Re-
search Council for Health, Working Life and Welfare, FORTE: (No. 2011-0671)
 Acknowledgements xiii
that financed Stina’s stay in Adelaide, Australia, kindly invited there by our
distinguished colleagues in the field of law and emotions, Professors Sharyn
Roach Anleu and Kathy Mack. One of the anonymous reviewers of our re-
search application turned out to be another distinguished colleague Professor
Terry Maroney. We did not know her by then, but her appreciative review
gave us a serious boost of professional pride that was only reinforced when
we half a year later met at a conference and she turned out to be a prominent
legal expert and researcher on judges’ emotions in the US. Our conversation
is ongoing ever since.
Last but not least we thank the colleagues and dear friends who have been
reading and commenting on different chapters in this book in their draft
versions: Göran Ahrne, Erik Andersson, Moa Bladini, Mary Holmes, Olof
Rydén, and Linda Soneryd.
1 Why emotions in court?

The entire courtroom felt like it might burst into tears, the voice of the pre-
siding judge was trembling when we resumed after the father had finished
his story; it was, like, so enormously – he explained their whole situation
following the incident and you couldn’t – the boy was still hospitalized, he
could…they could not leave him alone for more than 20 minutes, I mean it
was so awful, so terrible, and this was just a small kid – this has followed me
for so long [one year]…. I remember that trial as if it was yesterday.
(Jonna, court clerk, 25+)

I
n the above quotation, court clerk Jonna describes what is generally con-
sidered an emotional event. She describes it in a way that conveys the
density of sadness in the courtroom – it is easy to imagine what it was
like and how difficult it must have been to control that sadness and redirect
focus to court matters and procedures. These are the kinds of events that
court professionals will remember and retell if you ask them to describe the
ways in which their job is emotional. Sometimes they will claim this sensi-
tivity to the emotional sides of a case to be, for them, a thing of the past,
belonging to a time when they were less experienced and less ‘chastened’. In
our data, however, there are also numerous examples of experienced judges
and prosecutors describing how also they can be deeply emotionally im-
pacted, especially by cases involving children as victims. When that hap-
pens, the judge may need to call for a break in the proceedings so that he or
she can withdraw backstage and recover before continuing. In this book, we
term the kind of strong emotions that may intervene in or disrupt a person’s
professional performance ‘foreground emotions’. Foreground emotions are
those “which draw attention not only to objects and events external to the
emoting subject but also to the emoting subject’s internal states” (Barbalet,
2011: 39). The reason they may disrupt a person’s professional performance
is, precisely, that they force the subject to reflect upon and regulate his or
her own ‘internal state’. When judges feel like crying, part of their focus is
shifted from overseeing the court proceedings and listening to the parties
to making an effort not to cry. This is because a crying judge would be a

DOI: 10.4324/9781315306759-1
2 Why emotions in court?
serious frame break (Goffman, 1974): it would violate the feeling rules of
the court.
In this chapter, we first present the background and the overall argu-
ment of this book, along with its theoretical problem area – emotion and
­rationality – that we locate in relation to the developing academic field of
law and emotion. Thereafter follows a crash course in the Swedish judicial
system, to enable a better understanding of the empirical settings (for a de-
tailed presentation, see Appendix: The Swedish Judicial Procedure). Next,
we proceed to explicate the perspectives and key concepts of our sociological
approach to emotions. This theoretical section is followed by a discussion of
analytical generalization, in general, and of the analytical generalizability
of our findings, in particular. While noting certain specificities in different
legal systems, we argue for the general relevance, at least in the countries of
the Western world, of the analysis and results presented in this book. The
chapter ends with an overview of the remaining contents of the book.
In some places in this chapter, the reader will come upon boxes with the
heading “How did we do it?” inserted under the text. “How did we do it?” –
boxes offer relevant methodological information connected to the theoretical
discussions in the paragraph(s) preceding the box. The information on m ­ ethods
conveyed in the boxes is also important to understand the context of the data
presented in the rest of the book.
Our interest in studying emotions in court derives from a broader theoreti-
cal quest to investigate the role of emotions in rational fields in which they are
supposed to be irrelevant, for instance in bureaucratic organizations (Sieben
and Wettergren, 2010; Wettergren, 2010). During our first encounters with the
courts and prosecution offices, we were careful not to mention the word emo-
tion too often, enquiring rather about legal professionals’ thinking about, or
experience of, situations in their daily work life. It did not take long, however,
before almost everyone we met wanted to talk about emotions and their ef-
forts to manage emotions on an everyday basis: “You should have been there
for the hearing I was in today!” The episodes spontaneously recounted to
us usually referred to concrete emotional expressions shown by lay or pro-
fessional actors during hearings. Yet, when probing the issue in interviews,
both prosecutors and judges highlighted a whole range of situations and as-
pects that in their work called for a strategic approach to managing emotions.
What was involved in this managing was both other people’s emotions (“We
meet people in crisis on a daily basis”) and one’s own (“To some extent I try to
present myself as authoritarian, or at least as someone alert, to show that I’m
the one in charge of the hearing”). Although not all of the situations described
to us were as deeply emotional as the one Jonna recounted in the quote above,
all of them provided examples of foreground emotional processes at work.
However, it was not first and foremost foreground emotions that we were
after. Our choice of a supposedly hyper-rational context for this study
was guided by a wish to unveil emotions and emotional processes that are
much less tangible and much more difficult to observe. These emotions are
 Why emotions in court? 3
unlikely to leave any strong memories and typically do not disturb one’s
professional focus. Rather the contrary: they motivate and fuel the latter. As
judge Ruth insightfully described it:

If I weren’t genuinely interested I wouldn’t continue, since I belong to the

1940s’ generation with an obscene pension [laughter] and so I don’t have
to be in it for the money…. My work as a judge has not been influenced by
emotions, except that it’s been – that is an emotion of course – to feel serious
is an emotion … so in that sense my work’s been influenced by emotions.
(Ruth, chief judge, 65+)

Judge Ruth identifies her ‘seriousness’ at work as an emotion, noting also an

‘interest’ that motivates her to keep working past the traditional retirement
age. In this book, we term the kinds of emotions she speaks of ‘background
emotions’. These emotions “function by foregrounding external objects
of attention while remaining outside the emoting subject’s consciousness”
(Barbalet, 2011: 36). They form the emotional backdrop needed to perform
rational and instrumental action. They are hardly noticed, precisely be-
cause they do not occasion any focus shifts. On the contrary, they work with
cognition to produce the desired end.
In this book, the concepts of background emotion and foreground emo-
tion provide the central sensitizing and analytical concepts with which to
organize our research. While the notion of backgrounded/foregrounded
emotion was first coined by Jack Barbalet (1998), in our approach they be-
come key analytical tools enabling us to understand how emotion can be
systematically silenced yet influential, and how the management of emo-
tions according to situated feeling rules (i.e. at work) can become routi-
nized and habituated (see the “Theoretical framework and key concepts”
section, p. 17). This approach to, and focus on, background emotions is
what makes our research unique. Previous research on emotions in court
has been limited to foreground emotions and emotion management.
In modern democracies, the legal system revolves around the ideas of pure
rationality and positivist objectivity, that is, the assumption that emotion has
nothing to do with that system, or, as Max Weber put it in his work on the
rationality of bureaucracy, that work in it is carried out “without anger and
fondness” (Weber, 1948: 215). It was assumptions of this kind – that there are
no emotions at play in legal practice – that made the topic an interesting and
challenging one for us to study. Indeed, the role of emotional processes in the
production of justice is neither fully recognized nor sufficiently scrutinized.
There is therefore a need to open up the black box of emotion in justice and to
learn more about how this (tacit) professional competence is applied.
The aim of the project Emotions in Court (2012–2016), on which this book
is based, was thus to study emotions and emotion management in Swedish
courts. Proceeding from the theoretical distinction between background
and foreground emotions, we wanted to find out not whether, but in which
4 Why emotions in court?
ways, emotions were active and acted upon in criminal investigations, court
trials, and in the everyday interactions around hearings, and how organiza-
tional and structural dimensions, such as power and status, were linked to
emotions and emotion management.

How did we do it?

This book draws upon a multi-sited case study covering four strategi-
cally selected Swedish district courts and their respective prosecution
offices. The data for it were collected in 2012–2016 using a combination
of ethnographic methods: observation, interviews, and shadowing. The
shadowing and the interviews (N = 144) involved a total of 100 different
legal actors: 43 judges, 41 prosecutors, and 16 defence lawyers.1 In addi-
tion, we observed approximately 300 different hearings. Observations
made in connection with the shadowings (e.g. during small talk in the
backstage area of the court) were recorded in a separate field diary,
along with preliminary analyses and reflections on our own emotions.
Given our research interest, the study focused on district court (lower
court) judges and prosecutors, who are state employees expected to re-
main objective and, in keeping with the positivist notion of objectivity,
unemotional in their work. Defence lawyers, and legal counsels in gen-
eral, differ from this criterion in that they are privately employed (or self-­
employed) and partial in their attitude (required to work for their client’s
interests). It is, furthermore, important to note that though we have strived
for our data collection to include roughly the same number of women as
men, we have not undertaken a gender analysis of the data. Research on
courts in Australia suggests “perhaps a less complete allegiance among
women to the cultural script of dispassion in which emotion play no role”
(Roach Anleu and Mack, 2017: 67), but the preliminary impression of
our findings rather suggests that women and men are as likely to em-
brace, and to problematize, the ideal of non-emotional justice. To some
extent, this may be explained by different gender regimes in Australia
and Sweden. We argue, however, that an even more likely explanation for
the lack of gender difference in our material is our focus on background
emotions. Background emotions – as opposed to foreground emotions –
are not conventionally associated with being emotional and are therefore
not gender-patterned. The indication of the quoted interviewee’s gender
(male or female as indicated by the person’s fictional name) in this book
serves to underscore the point that our emotion analysis is applicable to
judges and prosecutors regardless of gender. This is to say that awareness
of the relevance of emotions in legal work is not an effect of some increas-
ing ‘feminization’ of the workplace, nor was it mainly women partici-
pants who volunteered to participate in the project.
 Why emotions in court? 5
Emotion and rationality
Even though our encounter with the field was predominantly positive and
emotions proved to be a topic open for discussion in some respects, in other
respects emotions were systematically silenced. This appeared to be due
to the dominant notion of positivist objectivity that still reigns in the legal
system: one could say that the closer one got to the emotive-cognitive pro-
cesses surrounding the evaluation of material (facts, evidence, testimonies),
the more there was reluctance to consider emotions and emotional processes
as useful tools or information carriers. This reluctance became particularly
prominent when we asked our respondents about how to evaluate ‘trustwor-
thiness’, a concept often employed and referred to by defence lawyers, pros-
ecutors, and judges. While there are several methods to evaluate evidence in
court (cf. Diesen, 2015; Ekelöf et al., 2009), in the Swedish context, to put it
briefly, a statement, according to the country’s Supreme Court, is trustwor-
thy if it is coherent, clear, comprehensive, vivid, detailed, stable over time,
easy to comprehend, long, spontaneous, and restrained. Reversely, typical
of an untrustworthy statement is that it is unclear, poor in details, and/or in-
comprehensible, and changes over time (see, e.g., NJA, 2009:44: 447, 2010:17:
671). Yet another criterion of trustworthiness is that it “carries the impression
of authentic experience”, but this characterization has been severely criti-
cized and is disappearing from usage (NJA, 2010:17: 671). In general, research
in psychology has demonstrated a very low success rate of such professional
criteria for what constitutes a trustworthy/non-trustworthy statement, essen-
tially on the same low level as that of lay people’s assessments (Granhag et al.,
2005; Strömwall and Granhag, 2003; Vrij et al., 2010). Accordingly, when
asked about their notion of trustworthiness, our interviewees either sought
to change the subject or embarked on reasoning along the following lines:

Trustworthiness means that you understand the person to be trying his

or her best to give a correct description of what happened, and that you
can see that this description of the events squares with what other per-
sons have seen and observed, so you draw the conclusion that this per-
son is trustworthy, reliable. But it’s something you have to work out; you
can’t just, like, say that someone’s trustworthy, you first need to hear
this person speak, narrate, and then it’s about nuances, about details,
about the way they narrate, their body language, facial expressions,
emotions…. I mean, someone who just straight away talks like this with-
out any emotions: that makes you wonder, of course. At the same time,
if someone overacts and shows an awful lot of emotions, that makes you
wonder, too … so that’s something you just have to work out for your-
self, which is not always that easy. It’s a challenge we have, to determine
if this person is trustworthy or not. Are there gaps in the story, hesita-
tions? That can be the case even if you’re trustworthy…but what it leads
to – sometimes in the judgments, you see the judges reason, like, “Well,
6 Why emotions in court?
there are some contradictions in the victim’s story, but they’re not so
serious as to undermine his or her credibility”….
(Henrik, prosecutor, aged 45+)

Both the above descriptions by the Supreme Court and the reasoning in the
quote by the prosecutor Henrik, involve emotions; for any narrative to come
across as ‘vivid’, ‘spontaneous’, ‘restrained’, and thus trustworthy, expression
of emotion on the part of the narrator is necessary. As we see in the quote
by Henrik, the assessment of these qualities also involves emotions, that is,
alertness to impressions conveyed by emotional information (nuances, de-
tails, the way they narrate, body language, facial expressions, emotions). Yet,
because the ideal of pure rationality – that is, rationality ‘uncontaminated’
by any ­emotions – forms such a sacred core value of the legal system, openly
reflecting on emotions as a source of information would have a disqualifying
effect on any legal professional. Nevertheless, in this research, we sometimes
came across words that seemed to straddle the line between that which was
acceptable and that which was not, such as ‘trustworthiness’. Related to this
grey zone, the former appeals court judge and current associate professor in
procedural law Roberth Nordh discusses the notion of ‘intuition’:

It may seem a fragile ground to stand on, but, for the final evaluation
and reconciliation against the evidentiary requirement, the most valua-
ble tool is the judge’s intuition. By that is not meant the judge’s feeling for
the way reality has presented itself. On the contrary, it is important that
the judge frees herself from emotional reactions and assesses the evidence
by way of objective, rational considerations. Intuition in this context de-
notes the judge’s knowledge, experience, wisdom, and sound judgement.
(Nordh, 2013: our translation, emphasis added)

The quote is full of interesting paradoxes. In order to uphold the ideal of

pure rationality, the admission that there is an element of intuition involved
in legal assessment processes is immediately countered by a complete dis-
allowance of emotions. To remain objective and rational, the judge must
“free herself from emotional reactions”. Still, emotions are immediately
introduced back again, by defining intuition as ‘experience’, ‘wisdom’, and
‘sound judgement’. In line with our theoretical framework and the concept of
background emotions, what Nordh captures in this quote are the concerted
and closely intertwined emotional and cognitive background processes that
enable the judge to correctly evaluate evidence. Nevertheless, Nordh’s habit-
uated professional practice of silencing emotions forces him into a contradic-
tory argument, leading him to try to capture intuition as a merely cognitive
assessment, assembling facts and deducing the correct answer in much the
same way a computer would (Bladini, 2013: 365; Mellqvist, 2013: 494).
Experience, to begin with, is not an entirely cognitive phenomenon; it is
virtually impossible to consciously and cognitively line up everything that
we have learnt through all of our experience so far in regard to a specific
 Why emotions in court? 7
­object – for instance, whether a given person can be trusted or not. Even if this
were possible, moreover, it would require an enormous amount of time and
effort to present all that accumulated experience in a way that would enable
systematic comparison to the actual case at hand. A much faster and more ef-
ficient way to access one’s memory bank is emotion. ­According to the neurolo-
gist Antonio Damasio (2003), in the decision-making process, an experiential
understanding, or a ‘feeling’ of the consequences of an ­alternative action, is
fundamental to our ability to form rational decisions. Discussing the impor-
tance of emotional cues for our ability to draw conclusions from experience,
Damasio, when interviewed in a talk show, elaborated the point as follows:

When we make decisions at any time of the day you do not only remem-
ber what the factual result is but also what the emotional result is and
that tandem of fact and associated emotion is critical [for making de-
cisions]. Most of what we construct as wisdom over time is actually the
result of cultivating that knowledge about how our emotions behaved
and what we learnt from them.
(Damasio, 2009)

Besides building on experience, wisdom and sound judgement* are con- 1

cerned with morality: the question of what is good (sound) and what is bad
(unsound). Accordingly, wisdom and sound judgement are also concerned
with the consequences of a particular decision or assessment, related to
a desired, ideally ‘good’ and ‘wise’ outcome in the context of a particular
frame (Goffman, 1974). In this book, we operate with the term ‘emotive-­
cognitive judicial frame’ to conceptualize the specific framing of judicial
practice, against which the professional performance, actions, and decisions
of judges and prosecutors are measured as ‘good’ or ‘bad’. Good and bad are
not solely about cognitive judgement: they are also felt.
Good or bad performance is noticed not only by the professional collec-
tive, colleagues, and managements but also by the performing self. The way
the self becomes informed about his or her ongoing performance (crucially
in the sense of how it is valued by others) is through emotions of pride/
satisfaction (good) and shame/embarrassment (bad). Wishing as we do for
acceptance and inclusion in the professional world to which we aspire, such
emotional clues help us identify and pick up the tacit pieces of knowledge –
the ‘tricks of the trade’ – needed to succeed. One thing that is picked up
already at the early stages of law education is the dictum that emotion can-
not and should not have anything to do with legal practice (Flower, 2014).
The subsequent trick of the trade is to learn to talk about emotions without
talking about emotions, as evident also from the examples discussed above.

* We use the spelling judgement to refer to ‘a sound judgement’ in a moral sense (SWE:
­omdöme) and the spelling judgment to refer to legal judgment (SWE: dom) issued by the
judge. In Sweden, the court decides on the verdict (guilty/not guilty) and the sentence
­( penalty) during the same hearing and both are announced and explicated in the judgment.
8 Why emotions in court?
To sum up, the emotive-cognitive judicial frame postulates a disconnect be-
tween objectivity and rationality, on the one hand, and emotions, on the other
hand. In a broader cultural perspective, this is a profoundly modern Western
idea (von Wright, 1986), in line with other dichotomies such as mind vs body,
public vs private, culture vs nature, civilized vs wild, and male vs female. Not
wanting to stray too far away into a discussion of the dichotomous Western-
modernist thinking, suffice it to say here that while intellectual thinking in
general is today increasingly involved in undoing these boundaries, with also
science questioning the idea of rationality and objectivity as non-emotional,
law, as a domain, still seems unwilling to do so. As suggested by Bettina Lange
(2002: 199), “emotion is constructed as ‘other’ to law”, and it continues to be so.
Terry Maroney (2011: 634) emphasizes this persistence: “the script of judicial
dispassion reflects Western jurisprudence’s longstanding insistence on a dichot-
omy between emotion and reason, and therefore between emotion and law”.

Emotion and law: the research field

It is primarily in Anglo-Saxon research and theory that an interest in emo-
tions in court has gained ground over the past two decades. In consequence,
most existing research in the area relates to the common-law system that
builds on case law, instead of the civil-law system that builds on a code. The
overarching ideals of pure rationality, dispassion, and objective justice are
the same, however. That said, as will be clear from our analysis in this book,
some interesting partial conclusions can be drawn from the fact that, strictly
speaking, law is seen as more dynamic in the common-law system, while it is
more set in stone and strictly applied in the civil-law system.

Emotion, law, and morality

The relation between a dynamic and a static system has been discussed by
the Swedish sociologist Johan Asplund, who, when describing the historical
development of the Swedish judicial system, compares the way law was ap-
plied in Scandinavia in the 16th century and in our own time (1992: 46–54).
In the 16th century, justice was practised in an ‘emerging state’, with trials
taking place in the village centre, engaging every citizen, and the retributive
elements of justice featuring very prominently. Today, justice is practised
in a ‘mature nation-state’, in which the process of making law is left to the
politicians and legal experts, leaving its implementation to legal institutions,
which are relatively secluded from the rest of society. While this develop-
ment walks hand in hand with the modern dichotomization of emotion and
reason discussed above, Asplund suggests that the modern Swedish judici-
ary is in essence no less passionate or moralistic than in former times, it is
only more controlled in terms of the ‘passions’ and the retributive elements.
Asplund’s discussion of the emergence of modern law has important im-
plications for the topic of law and morality. In our sociological perspective,
shared moral consciousness and the associated emotions are the outcome
 Why emotions in court? 9
of group interactions (Collins, 2004: see also the “Social interaction, frame,
and ritual” section). The basic sociological model to explain this derives
from Émile Durkheim who argued that out of religious ceremonies emerged
collective effervescence and a collective moral consciousness relating to ‘the
sacred’ and ‘the profane’ (Durkheim, 2008). The shared moral conscious-
ness achieved social cohesion and integration in traditional and local so-
cieties. Building on Durkheim and Erving Goffman (e.g. 1967), Randall
Collins asserts the prevalence of myriads of mundane interaction rituals
that all give rise to feelings of group solidarity, emotional energy, and shared
norms and values on local as well as national level. Emotional energy is the
individual experience of belonging, recognition, and confidence, contingent
on the extent to which he or she is capable of acting according to the norms
and values of the group. High emotional energy entails feelings of pride and
confidence (Collins, 1981, 2004). Collective moral values and emotions are
thus deeply entwined with individual perceptions of the self, or put the other
way around, moral consciousness simultaneously rise out of self-feelings
and feelings of group affiliations.
In line with this sociological perspective, we argue that the law can be
understood as essentially the codified moral consciousness of secularized
society and a trial is the ritualized practice of a society’s conceptions of
right and wrong and of emotions connected to these conceptions (Dahl-
berg, 2009). The dislocation of law from the local village centre to the level
of the state and its legal institutions does not remove morality from the core
of law, but it inserts a distinction between institutionalized morality (the
Law) and local or common sense morality/moralities. While the argument
that the law rests on collective moral standards is not in itself controversial,
it is a problem to the non-emotional image of law that common morality
is essentially contingent, perhaps volatile, and deeply emotional. The con-
cept of morality thus runs the risk of being seen, along with the ‘passions’,
as ‘other’ to law and incompatible with the ideal of objective justice. One
effect of this is that participants in our study assert that the law has no
relation to morality.
The view on morality seems to be different in the more dynamic North Amer-
ican common-law system. One might speculate that morality in this s­ ystem
becomes of central concern to justice because judges themselves are engaged
in the shaping of the law and because, contrary to the civil-law ­system, judges
can be politically elected. The nexus of emotion–justice–morality is theoreti-
cally explored in Susan Bandes’ collected volume Passions in Law (1999), which
argues that the judicial system in general not only de facto integrates emotion,
but is also morally required to do so in order to maintain its legitimacy. In the
US, emotions are considered relevant for the assessments in, for instance, hate
crimes, and in the use of shaming penalties. There is, however, also the more
general insight that the moral codex does not rest on an exclusively rational
basis (Posner, 1999). From a philosophical viewpoint, moral feelings of disgust,
vengeance, anger, compassion, sympathy, and mercy saturate the law (Kahan,
1999; Murphy, 1999; Nussbaum, 1999; Solomon, 1999). In this context, it is
10 Why emotions in court?
important to note that Swedish criminal law traditionally rests on norms of
restorative rather than retributive justice, making any strong moral emotions
(e.g. vengeance) less obvious. Furthermore, in line with the civil-law system,
the judiciary is designed to stand outside and above the political sphere; a judge
is formally appointed by the state but thereafter untouchable. This focus on
the judges’ autonomy – lack of bonds and affiliations – thus contributes to the
seeming impossible idea of judges as moral beings.
The more law making and the implementation of the law become areas of
complex legal expertise, the more there is a risk of an increasing gap between
the former and the common moral sense(s) of justice, with the courts seen by
citizens as incomprehensible and far removed. The system with lay judges
adopted in Sweden (see the “The Swedish judicial system” section) may be
one way to keep the law in touch with common-sense morality. Another way
is the increased focus on ‘good treatment’ echoing the ideal of procedural
justice. Both ‘good treatment’ and procedural justice focus on the experi-
enced fairness of the process itself rather than its outcome (Tyler, 2003).

Morality and objectivity

Judges are removed from the messy reality of a crime and required to be
impartial (Roach Anleu and Mack, 2017), which appears as taking a passive
role in the adversarial procedure. There is a tension between this passive role
and judges’ need to be active in their role in presiding over the trial process,
in “getting through the list” (Mack and Roach Anleu, 2007), but apart from
that they have no concerns with the common-sense morality of justice. In
contrast, an overarching predicament of the prosecutor is characterized by
the tension between demands for objectivity, on the one hand, and commit-
ment, on the other, where commitment brings forward issues such as loyalty
(Bandes, 2006) and morality (Fisher, 1987). It can thus be argued that pros-
ecutors’ relative closeness to the victim2 (sympathy) and the police (loyalty),
as combined with the adversarial ideal of two opposing parties, results in an
emotive-cognitive orientation towards defending the state/victim, informed
by common-sense morality. This orientation may then run into conflict with
prosecutors’ duty, as state representatives, to pursue objective investigations.
In this context, it is important to underline that in Sweden, prosecutors
are responsible for the one and only preliminary investigation of a crime
(the defence can, but rarely does, undertake its own investigation), and that
they take professional pride in their duty to secure evidence both in favour
of and against the accused. Yet, among our study participants, a common
reason for not choosing to become a defence lawyer was that one wanted to
be on ‘the right side’. Katarina Jacobsson’s (2008) study of Swedish prosecu-
tors highlights the concerns and adaptations of prosecutors attempting to
meet the objectivity demand, showing objectivity not to be a given but a pro-
cess, accomplished through situated objectivity work of constant reflexiv-
ity. We argue that such reflexivity involves negotiation between professional
 Why emotions in court? 11
moral standards tacitly inscribed in the emotive-cognitive judicial frame
and moral standards of common sense.

Empathy and emotion management

Considerably more researched than morality by scholars on emotions and
law is the topic of empathy (Bandes, 1996; Henderson, 1987). Empathy has
been studied in relation to legal professionals’ decision-making processes
(Abrams, 2010; Bandes, 2009; Brennan, 1988; Mellqvist, 2013; Nussbaum,
1996) and their managing of the parties in court (Darbyshire, 2011; Roach
Anleu and Mack, 2013). In our view, empathy is a crucial tool in emotion
management. Empathy is the capacity to imagine the situation of others,
emotionally tuning in with another person (Wettergren and Bergman Blix,
2016). In the words of Lynne Henderson (1987: 1576): “Empathy aids both
processes of discovery […] and processes of justification […] in a way that dis-
embodied reason simply cannot”. To put it differently, in order to both gain
relevant information and secure public trust for the legal process, the pro-
fessional actors need to empathically attend to the emotions of defendants,
victims, and witnesses. It has also been shown, moreover, that collaboration
between the professional parties in court in showing empathy towards vic-
tims facilitates the performance of the legal process (Booth, 2012; Schuster
and Propen, 2010). However, as Tracey Booth (2012) found in her study of
the Australian Supreme Court, judges tended to display their empathic re-
sponses to victims’ grief in subtle ways.
Consistent with the findings on empathy, studies have more generally
shown judges to take great care to manage their personal emotions in order to
display impartiality and fairness/justice before the public (Darbyshire, 2011;
Herzog-Evans, 2014; Roach Anleu and Mack, 2005; Scarduzio, 2011). Sharyn
Roach Anleu and Kathy Mack (2005), for instance, in their examination of
the emotional labour of Australian magistrates found even the magistrates
themselves to regard the management of emotions as an essential aspect
of their work. Indeed, as also our own findings show (see, e.g., ­Chapter 4),
attending to lay people’s emotions is integral to the emotion management
of judges, being especially important in situations where the defendant is
unrepresented (Darbyshire, 2011; Roach Anleu and Mack, 2005). Judges’
style and attitude often differ depending on whether the defendant has a
legal representative or not (Hunter, 2005). According to Richard Moorhead
(2007), the ideal of an impartial, passive judge presupposes two equal par-
ties, which is never the case when one of the parties is unrepresented. Such
cases then warrant more active engagement by the judge. In our research,
both Swedish judges and prosecutors were indeed more actively engaged
with the defendant when he or she was unrepresented, depending also on the
defendant’s behaviour in court. Unruly defendants angrily objecting to the
claims or loudly demanding their rights received less help and support from
the judges, compared to more quiet and collaborative ones.
12 Why emotions in court?
As found by Sarah Goodrum (2013), rather than undermining the rationality
of their courtroom work, prosecutors’ empathic approach to victims in fact often
helps them to achieve victim satisfaction with the prosecution and, more in gen-
eral, the judicial system. The emotional attunement worked as a tool for attain-
ing victims’ personal goals and prosecutors’ organizational goals (­Goodrum,
2013: 268). As we have shown elsewhere (­ Wettergren and B ­ ergman Blix, 2016),
this kind of empathy is nonetheless limited by professional ­emotional orienta-
tions such as pride and pleasure taken in one’s juridical expertise. Particularly
prosecutors, closer than judges to the messy reality of a criminal incident, can
avoid getting emotionally involved by focusing on legal encoding (Törnqvist,
2017). As for judges, they have been found to employ various emotion manage-
ment techniques, such as depersonalization and ­emotional distancing, to shield
themselves from individuals’ misery (Roach Anleu and Mack, 2005; Schuster
and Propen, 2010). They can, however, also be simply condescending, rude, or
harsh towards defendants and other professional actors, or just bored by them
(Mack and Roach Anleu, 2010; Ptacek, 1999).

Power emotions
Emotional displays of anger, contempt, rudeness, boredom, and the like are
often associated with power positions: they belong to people in superior po-
sitions (cf. Wettergren, 2009). Jennifer Scarduzio (2011) calls such displays
and other similar aberrations from the norms of neutrality ‘emotional devi-
ance’ that judges may be allowed due to their privileged position: their use
of humour, expressions of anger and frustration, and rudeness constitute a
power device for speeding up the procedure, relieving tension, and steering
lay people behaviour. Indeed, as Maroney has shown, anger can be used for
the purposes of displaying legitimate power in sentencing when the judge,
using her authority, condemns the immoral acts of the defendant. When
asserting the judge’s dominance, the line between righteous and dehuman-
izing expressions can, however, be very fine (Maroney, 2012: 1258).
Expressions of the judge’s power in court can be interpreted as conde-
scension, indifference, or rudeness, but expressions of power can also be
demonstrations of patience and listening (Ptacek, 1999; Roach Anleu and
Mack, 2013). In our Swedish case, we found judges to hardly ever openly
express such ‘power emotions’. This corresponds to the broader understand-
ing that in Swedish courts, it is on the whole very hard to find judges dis-
playing anger in public (Bergman Blix and Wettergren, 2016). Depending
on the situation, anger may, however, be sensed in the impenetrable stone
face of Swedish judges. The stone face itself – while it is the judge’s primary
technique to display impartial listening – was sometimes interpreted by
lay people in the court as both condescending and rude. The discretionary
space to deviate from feeling rules being linked to power means that people
in positions of low power need to more strictly conform to the feeling rules
(Hochschild, 1983). Studies of paralegals have shown how subordinate legal
 Why emotions in court? 13
actors, in particular women, need to manage their own as well as their su-
perior lawyers’ emotions, functioning as emotional buffers (Francis, 2006).
Power and status positions – especially when these are challenged – are
sources of emotional tensions between legal professionals (Kemper, 2011).
Power need not only be related to structural position, but can also be
conceived of in a more Foucauldian sense as situated control of knowledge.
­Deirdre Bowen (2009), for instance, highlights the unequal power balance in
plea bargain negotiations. The prosecutors’ control of the evidence can give
rise to suspicion and irritation from the defence lawyers. In this situation, expe-
rienced, high-status defence lawyers could to some degree equalize the power
position of the two sides through professional networks and knowledge about
how to ‘play the rules’ (Bowen, 2009: 25). In a similar vein, it is the judge who
presides over the court, while prosecutors play the rules by adapting their style
and demeanour to those of the judge (Wettergren and Bergman Blix, 2016).
During examinations and cross-examinations, prosecutors strategically
expressing frustration, sarcasm, or sympathy can induce victims, defend-
ants, or witnesses to express, for example, sadness or anger (Brannigan and
Lynch, 1987; Wettergren and Bergman Blix, 2016). Such strategic use of
emotions during hearings was a concern for all prosecutors in our material,
although the actual strategies developed to a large extent depended on one’s
experience. Some of the prosecutors believed that expressing condescending
power emotions was a useful way to examine a defendant. Others consid-
ered a ‘nice’, respectful approach to be more efficient, thus attempting to
equalize the power asymmetry between prosecutor and defendant.
In summary, previous research has linked emotions to law via morality,
suggesting the law to be codified collective moral consciousness. Empathy
and emotion management have also been identified by previous research as
important tools in legal professionals’ interactions with victims, defendants,
and witnesses. Legal actors find this task an important aspect of their work,
but also take great care in presenting an objective and impartial demeanour
in court by managing their own emotions and expressions. Previous studies
have also examined some aspects of emotions and power.
Although most previous research is restricted to the common-law sys-
tem, our research on the Swedish legal system confirms the relevance of
previous findings in a civil-law system too. This said, our research takes the
field forward by empirically investigating ‘background emotions’ in natu-
rally occurring situated social interaction relevant to the field of emotions
in legal practice. Such a comprehensive empirical approach to the field has
not been taken so far. We argue that emotions do not simply enter into
specific aspects or tasks of legal professionals’ work, but are instead fun-
damental to it. In this book, we thus pioneer to offer a detailed analysis of
background emotional processes in several interconnected dimensions of
legal work. Last but not least, in taking the Swedish judicial system as the
context of our investigation, we extend the research field of emotions and
law to the civil-law system.
14 Why emotions in court?

Figure 1.1 Court house of Köping, Sweden. Photo: Helena Björnberg.

The Swedish judicial system

Scandinavian law in general adheres to the civil-law system, although it
shows certain common-law features such as some degree of case law and
by adopting an adversarial process where the judge functions as a pas-
sive ­arbitrator. The pretrial features are inquisitorial, while the trial itself
is adversarial. In contrast to the more dynamic procedure in common-law
­systems, judges are not supposed to make their own interpretations, but
rather abide by the written law. In the following, key concepts of the Swedish
judicial system that will recur also elsewhere in this volume are highlighted
in italics. For an expanded presentation of the Swedish judicial system with
references, see Appendix.

Education and the legal professions

Law schools in Sweden take four and a half years to complete, with a de-
gree from a law programme serving as the gateway to a career in the legal
profession. Following graduation, the most common next step is to apply
to the position of a court clerk in one of the country’s lower courts. Serving
as a court clerk is in principle required to become a judge, a prosecutor, or
a defence lawyer. The position of the court clerk is a training position that
also involves taking courses, preparing cases, taking notes in court in all
matters, and, eventually, presiding in court in minor matters such as traffic
offences and shoplifting cases. Court clerks are selected for their position
 Why emotions in court? 15
based on their law school grades, which contributes to making the coun-
try’s law school programmes very competitive. Following clerk service, the
training of future prosecutors and judges branches off into its own, separate
tracks.

Prosecutor and prosecution

The prosecutors’ main tasks are to lead preliminary investigations, decide
about prosecution, and represent the state in court trials. During the pre-
liminary investigations, they are required to act impartially: they have to
investigate circumstances both incriminating and exonerating for the de-
fendant. In court, they take the role of the accusing/state party, although
they still need to remain objective. New evidence and information coming
to light, for instance, must be presented and examined regardless of whether
these are incriminating or exonerating for the defendant.
During the preliminary investigation, the prosecutor decides on coercive
measures such as arrest and search warrants. When a person has been ar-
rested, the prosecutor can further request that the suspect be detained. The
matter will then be decided by the court in a detention hearing. At the end of
the preliminary investigation, the prosecutor decides on whether to prose-
cute or drop the case. If there is enough evidence, prosecution is mandatory
in most cases. The crime victims themselves cannot affect the decision; it is
not possible to drop the charges. Moreover, plea bargains are not permitted
in Sweden; if the prosecutor decides to pursue the case, a trial is the only
alternative.3
Prosecutor training usually starts with a nine-month prosecutor trainee
period. Trainees follow an experienced prosecutor and also get to observe
different police units. Upon the evaluation of the trainee period, one then
embarks on a two-year period as assistant prosecutor, during which one
works as a prosecutor and takes courses. When the training is completed,
one is appointed a public prosecutor. After a few years of service, one can ap-
ply for specialist positions in financial crime, domestic violence, or the like.

Judge and the court

The district courts are the first-instance courts in the Swedish judicial sys-
tem. Presiding in district court trials is one professional judge accompa-
nied by three ‘lay judges’. The lay judges represent ‘the common people’ and
are appointed by political parties; they come with no legal training. In this
book, ‘judge’ refers to the professional, employed judge.
After the clerk service, one can apply to a training programme for judges.
Acceptance depends on the recommendations given by the judges the clerk
has served for. The training starts with a year in an appeals court, where
the judge trainees prepare cases for decision. Thereafter, they move on to
lower courts to work in them for two years as ‘associate judges’, followed by
16 Why emotions in court?
another year in the appeals court. The training also includes participation
in courses spread out over the programme years. When the training has
been completed, the successful judge trainees are awarded the title of asses-
sor and are now formally eligible to apply for permanent positions, although
it is common to serve at the Ministry of Justice or the Supreme Court for a
few years first. An alternative career path is to be appointed judge directly
based on one’s work experience as, for instance, a prosecutor or a lawyer.
This career path is not very common, although there were a few examples
of judges appointed this way in our study. Unlike the case with prosecutors,
who may specialize, there are no specialized courts and no specialization in
the courts; all judges handle all types of cases, both criminal and civil.

Defence and victim counsels

In Sweden, public defence lawyers are usually members of the Swedish Bar
Association. They are assigned to a case by the court, either from a list of
available lawyers or based on a specific request by the defendant. The de-
fendants have the right to have a defence lawyer when they are detained; if,
for the crime in question, there is a mandatory sentence of imprisonment
for a minimum of six months; or if there are any special reasons. Defence
lawyer’s fees are reviewed and ruled on by the court, and they are paid by the
state if the defendant lacks the means to pay.
In contrast to common-law contexts, in Sweden the victim has a relatively
strong position and takes part in the trial. During the 1980s and the 1990s,
­several changes were made to strengthen victims’ rights in the criminal pro-
cess, introducing, among other things, the right to legal counsel in ­violent-abuse
proceedings (see further Enarsson, 2009). This counsel does not need to be a
member of the Swedish Bar Association, and in practice those serving as one
tend to be recent law school graduates, who need more experience before being
able to enter the Bar Association.

The trial
There are two central principles guiding the criminal proceedings: first, that
the evidence should be presented orally, which means that parties should in
general talk freely; and, second, that the judgement should be based on facts
presented orally during the trial, which entails that the judge does not read
the case files before the trial. In court, the judge’s main task, besides listen-
ing to the parties and evaluating the presented evidence, is to ensure that the
court procedure is followed and the case properly clarified. The judge can
ask clarifying questions during the examination in court, but should refrain
from questions resulting in the defendant being convicted.
In Sweden, the legal actors do not wear robes or wigs in court; they dress
in an ordinary suit instead. At the start of the hearing, the legally trained
presiding judge establishes that there is nothing to prevent the hearing from
 Why emotions in court? 17
taking place, and then asks the prosecutor and, if applicable, the legal coun-
sel to present their claims. The judge then asks the defendant about his or
her plea to the charges as presented. Thereafter, the prosecutor develops the
facts of the case, describing the circumstances and presenting the evidence,
with the defence then given an opportunity to respond.
In most cases, the prosecutor first asks the victim to give a full account
of the event and then probes into details. This is followed by the defence’s
cross-examination of the victim. Next, the judge asks the defendant to
provide his or her description of the event or, as in some cases, leaves the
questioning to the prosecutor. After the examination by the prosecutor, the
defence lawyer can put complementary questions to the defendant. Wit-
nesses are then called in one at a time. The examination of witnesses begins
with the prosecution/victim calling their witnesses first. Unless they are re-
lated to the defendant, the witnesses have to take the oath before giving
evidence.
Towards the end of the trial, the chair gives an account of the defendant’s
personal matters, such as previous convictions and financial situation. The
last part of the trial consists of the closing statements by the prosecution
and the defence, summing up their arguments including their suggestion for
sanction. After the trial, the judge and the lay judges deliberate, with the de-
liberations and the discussions kept confidential. The verdict is by majority
vote. The professional judge delivers the judgment, sometimes orally in the
courtroom, yet always also in written form, with the document delivered to
the parties by mail.

Theoretical framework and key concepts

In this section, we introduce our emotion-sociological framework and some
fundamental concepts used in our analysis: background/foreground emo-
tions, emotion management, habituation, ritual, front stage/backstage, the
emotive-cognitive judicial frame, emotional profiles, power, and status.

Emotion, emotion management, habituation

Emotional processes continuously monitor and orient our actions and in-
teractions in the social world. Most of the time, however, these processes
are backgrounded and unarticulated; in that sense, they are subconscious.
‘Emotional processes’ generally refer here to the unarticulated and unbound
character of emotion prior to cognitive reflection: emotional processes
are bundles of emotion, not yet disentangled discrete emotions. Depart-
ing from Thoits’ (1989) comprehensive definition (but see also Feldman
Barrett, 2013), we may consider the essential elements of a discrete ‘emo-
tion’, looking at the example of a judge’s experience of anger. What we may
call an anger-sequence begins with an appraisal of a situation that builds
on simultaneous social and physiological cues. Facing the judge in court,
18 Why emotions in court?
there is an ill-prepared lawyer, representing a breach of professional norms.
This ­understanding – though not necessarily conscious – of the situation
is, for the judge, entwined with an emotional reaction (e.g. anger) involving
physiological changes (e.g. blood rush). Her feeling angry is an assessment
composed of both the experience of the situation and the experienced phys-
iological change. Because the feeling rules of the judge’s behaviour in the
courtroom postulate non-expression, she becomes aware of her ­emotion
as an emotion of anger and as ‘problematic’ – it becomes foregrounded.
In ­Barbalet’s (2011: 39) words, the judge’s attention is drawn “not only to
­objects and events external to the emoting subject but also to the emoting
subject’s internal states”. Her emotional expression can thus be more or less
congruent with her experience; if she keeps her expressionless stone face,
it amounts to ‘surface acting’ ­(Hochschild, 1983) in which the expression
of the emotion is decoupled from the experience (Bergman Blix, 2015). For
Swedish judges, putting on the stone face represents a kind of surface-acting
emotion management technique that helps them conform to the feeling rules
of the courtroom. If our judge instead expresses her anger, the expression
would be congruent with the experience. In our observations, angry encoun-
ters between judges and other court professionals were frequently solved by
toning down the expression to such a subtle level that it still did not breach
the feeling rules of the courtroom. A judge could, for example, cross her
arms, lean back in her chair, and just look at the lawyer stone-faced. In the
world of the legal professionals, this expression is congruent with the feeling
of anger, and depending on the particular context and the topic of the inter-
action at hand, it is also received and understood as such: the judge is angry.
Importantly, the judge’s anger management momentarily turns her attention
away from her work in presiding over the proceedings. ‘Foreground emo-
tions’ require the subject’s attention and involvement, and they are therefore
often experienced as disruptive of focused attention on a specific task or
course of action external to oneself.
Consider, in contrast, a situation in which the judge, instead of hav-
ing to deal with a poorly prepared lawyer, has a new case file dropped
on her desk. Here her appraisal of the simultaneous external and physi-
ological internal cues is likely less dramatic. She might feel curiosity, in-
terest, and other similar emotions that orient and support her focused
attention on the documents in question. Were someone to ask her about
it, she would probably say that she is curious about this new case; yet,
unlike when she became angry with the lawyer, she does not reflect on,
nor labels, the emotion, unless it is deliberately brought to her attention.
It remains backgrounded because it is continuous with the feeling rules
governing her work, and because her work is propelled by it. ‘Background
emotions’ “typically have relatively low expressivity and weak physio-
logical correlates, [and] function by giving attention to external but not
internal objects of emotional apprehension” (Barbalet, 2011: 39). They
may thus facilitate and enhance involvement in a desired course of action,
 Why emotions in court? 19
instead of being experienced as disruptive. This is important, because
background emotions may still, from an external point of view, be ‘disrup-
tive’ in the sense that they motivate bad decisions based on the subject’s
­profession-specific wisdom (cf. Nordh, 2013). As we saw earlier (p. 7),
wisdom is ­a lways relative to experience and knowledge and therefore em-
bodied and situated (Damasio, 2009). Thus, while background emotions
help to sustain focus and enable discrimination between matters deemed
relevant and matters deemed irrelevant, this orienting function – when it
remains backgrounded – may still be flawed. In other words, especially
when we encounter unfamiliar situations or people whose experiences and
worldviews differ from our own, we may not be well served by background
­e motions guiding our interactions (Morton, 2013; Zaki, 2014).
We are taught in primary and secondary socialization to understand and
discriminate between our emotions and express them in accordance with
situated feeling rules (Hochschild, 1983).4 To emphasize the embodied as-
pects of socialization processes, in this book we use the concept of ‘habitua-
tion’ as developed by Stina Bergman Blix (2015) in her study of stage actors.
Habituation is the outcome of repeated emotional expressions turning
emotion management, which at first was foregrounded and required active
involvement, into backgrounded emotion management performed without
conscious effort. While, in other words, adapting to the feeling rules in a
situation initially requires active involvement in both the emotions them-
selves and their management, the process becomes habituated and back-
grounded through repetition, experience, and routinization (Scheer, 2012).
The clerk presiding in court needs to remind herself of the feeling rules of
the court, while the experienced judge has already habituated these rules
and needs no longer do so. The clerk’s emotion management is active and
foregrounded, and thus interferes to a degree in the task of presiding in
court, even where the action is highly routinized and basic. In contrast, the
experienced judge’s emotion management is habituated and backgrounded
for as long as the proceedings appear routine to her (‘routine’ for an experi-
enced judge covers more than that of a clerk). Successful habituation results
in less accentuated emotional experiences (i.e. fewer foreground emotions),
but it also provides a sense of security in terms of ‘knowing how to behave’,
paving the way for ‘emotional presence’. Experienced judges in our material
sometimes engaged in emotional improvisation deviating from the stone-
faced norm, without nevertheless considering themselves as transgressing
the feeling rules of the courtroom. As Bergman Blix explains it:

Habituation would then be the underlying mechanism behind two op-

posite scenarios, routinisation that leads to emotional distancing and
the emotional presence that actors need to be able to maintain on stage
without becoming overwhelmed by emotions. Both scenarios seem to
provide some professional shield.
(Bergman Blix, 2015: 8)
20 Why emotions in court?
Both ‘emotional distance’, such as when reading witness narratives as mate-
rial for judicial encoding, and emotional presence, needed, for instance, for
court interactions, become habituated in professional court work.

How did we do it?

The method of shadowing (McDonald, 2005) has proved highly suc-

cessful for uncovering legal professionals’ background emotions. Fol-
lowing judges and prosecutors through their workday, we variously
engaged them in small talk encouraging reflection about the situations
faced. This manner of information gathering was combined with for-
mal follow-up interviews, for which we used our court observation
notes to help us focus on courtroom situations often observed just a
few hours earlier. Centred on concrete and temporally close events,
both the small talk and the formal interviews were geared to elicit re-
flection on background emotional processes. When one prosecutor, for
example, was asked why she had kept avoiding the gaze of the defence
lawyer in a court session that had just concluded, she replied that:

I think one of the reasons I do that – I am looking for the right

formulation here, as, talking to you, I sometimes get insights into
why I do things – yes, here we go: I do that because it’s the most
neutral way I can be. When I sit and look down, it’s not because
I want to make them feel that I’m not listening to them – I don’t
look up at the ceiling and look like I’m bored – but this way, me
sitting like that, I do that regardless of whether the defendant is
[likely to be] convicted or acquitted, because that way the defence
can’t get hold of me, so to speak, they can’t play me. I decide how
I react, and my reaction doesn’t show, unless I think that “that’s
enough”; I don’t want to appear easily flattered or easily offended.
(Faida, prosecutor, 45+)

In this quote, Faida speaks of background strategic emotion manage-

ment, describing how she braces herself against attacks by the defence.
Indirectly, however, her account is also one about the discomfort pros-
ecutors often feel due to their exposure in court (see Chapter 2).
The small talk and the follow-up interviews enabled continuous res-
olutions of questions encountered in the observations and validation
of the researcher’s interpretations (Agar, 1986). Noteworthy here is
that even front-stage emotions of legal professionals and their con-
gruent expressions in court were predominantly subtle and low key,
making them difficult for the researcher to register. Again, shadowing
proved vital for capturing not only the experience of the shadowed
 Why emotions in court? 21

participants but also their interpretation of the other legal profession-

als’ subtle emotional expressions. The judges’ typical use of their pen
to express annoyance in court, for instance, was only registered after
being pointed out by one study participant: “Did you see how angry
the judge was, he put down his pen!”
To be able to better focus our attention and follow the fluctuation
of emotional intensity, we also employed ‘emotional participation’, a
method in which our own emotions were used as a tool to generate
reflections and insights relative to the situations and persons observed
(Bergman Blix, 2009; Wettergren, 2015). A critical aspect of this method
is that the researcher’s emotional understanding of the observed situ-
ation can be either more or less accurate (as would, in our case, be-
come clear in the small-talk settings and the follow-up interviews): in
both cases, however, it can be used as an information source to enable
insights into the emotional processes in the field. Such insights were,
again, drawn upon in the interviews to arrive at a more nuanced and
tangible interpretation of both foreground and background emotions.

Social interaction, frame, and ritual

Our sociological approach to the study of emotions in this book entails a fo-
cus on the social aspects of emotions. As should be clear from the discussion
of emotion thus far, what we are interested in is how social situations evoke
emotion and how emotion orients and informs social action. Accordingly, we
look at emotion as something originating in social interaction among peo-
ple, or between people and their social environment (see, e.g., Wettergren,
2013). What this means in the context of this study is that the performance
of ‘objective’, emotionless justice in Swedish courts is examined as a joint
interactional achievement of the different legal professionals acting in court.
Our analysis of the social interaction and the situated feeling rules builds
on Erving Goffman’s (1974) work on ‘frames’. In his early work of social
interaction, Goffman employed the metaphor of the theatre stage to show
how interactions can be interpreted as ‘rituals’ with specific structures, and
how people move between front-stage areas where performances occur and
related backstage areas where preparations, venting of thoughts and feel-
ings, and the like are handled (Goffman, 1959). Accordingly, front stage and
backstage need to be understood in relation to each other: the backstage,
such as the courthouse canteen, always exists in relation to a particular
front stage, such as the courtroom, and there can be several backstages and
several front stages. In his later writings, Goffman developed the concept
of frame (of reference) to incorporate this multiple and continuous moving
between different stages (Collins, 1988), and how these stages/frames organ-
ize and structure our experiences (Goffman, 1974: 13). Frames provide the
22 Why emotions in court?
background or the context within which we interpret “What is it that’s going
on here?” (Goffman, 1974: 8), and they are taken for granted as long as the
interaction that takes place fits with our interpretations; the ritualized inter-
actions of a court hearing, for instance, seem perfectly normal and natural
to a professional legal actor who knows what to expect. In this way, follow-
ing our discussion of morality earlier in this chapter, frames are connected
to moral evaluations:

Social constraints are not encoded in the form of verbal prescriptions,

but are something deeper. These are not rules that people have learned
to carry around in their heads, but are ways in which situations unfold,
so that participants feel they have to behave in a certain way, or make
amends for not doing so. It is the frames that are the constraints. Even
when they are broken, the situation that emerges remains constraining
in a predictable transformed way.
(Collins, 1988: 57)

In other words, a judge can remain stone-faced and even reproach a de-
fendant for a joke attempted in court, while laugh at the same joke in the
canteen (Bergman Blix and Wettergren, 2018). Although a person usually
moves between multiple frames in the course of a day, some of these frames
bear more weight and thus serve as more encompassing definitional refer-
ences. As Goffman (1974: 27) himself puts it, “the primary frameworks of a
particular social group constitute a central element of its culture”.
The “emotive-cognitive judicial frame” constitutes one such primary frame-
work, or a restricted behavioural script, for law professionals ­(Wettergren
and Bergman Blix, 2016). By terming it emotive-cognitive, we want to stress
the way the emotional and cognitive constraints of the frame are entwined
and the fact that emotions and emotion management are vital for learning
the behavioural script and for orienting behaviour when the constraints of
the frame become habituated and non-reflected. As will be seen throughout
this book, the emotive-cognitive judicial frame seals off certain emotions
while motivating or orienting towards others, thereby guiding routine profes-
sional work. It provides background emotional rewards of pride and pleasure
when the frame’s requirement to perform rationality by silencing emotions is
satisfied, while producing shame and embarrassment when the expectation
is violated (see also Wettergren, 2010). It is, however, rare that situations of
full-blown shame emerge; our use of the term ‘trigger warning’ in this con-
text pertains to how background anticipation of shame alerts the subject to
steer away from potentially bad courses of action. This is in line with Arlie
Hochschild’s (1983) argument about “the signal function of emotions” albeit
emphasizing that this signal function mostly works in the background.
That said, within this primary frame, there are also other frames function-
ing as sanctuaries and free zones where the requirement of non-emotionality
is relaxed. In the course of our research, we noticed that the emotive-cognitive
judicial frame worked differently for prosecutors and judges. This we attributed
 Why emotions in court? 23
to their differently organized work tasks and differing positioning in webs of
professional interactions and dependencies. To conceptualize these differences,
we adopted the term ‘professional emotional profiles’ (Chapter 2).
While ‘backstage’ and ‘front stage’ refer to the delineated arenas of in-court
(courtroom) interaction and out-of-court interaction (e.g. in the waiting room),
on the one hand, we employ the concept of emotive-cognitive judicial frame
(primary framework) to show how this primary framework operates across
these different arenas. On the other hand, in this book, we reserve the notion
of ritual to describe the highly formalized nature of the court proceedings, al-
though, in its classical sociological sense (including that of Goffman), the term
also denotes the structured nature of everyday interactions (cf. Collins, 2004).

How did we do it?

We developed the concept of emotive-cognitive judicial frame during the

fieldwork phase of our research, albeit it was also inspired by our initial
aim to understand how emotions play out in an apparently emotionless
field in which emotion and reason are traditionally understood as con-
ceptual opposites. Our selection of courts and study participants was im-
portant here. We selected courts and prosecution offices of various sizes
and with different catchment areas to strengthen our case for any cross-
case patterns identified, and we shadowed, observed, and interviewed
participants representing varying experience levels and positions, to be
able to factor in degrees of professional development. When engaged in
observation, we looked at the different actors’ body language, facial ex-
pressions, gestures, glances, and gazes, along with their use of explicit
emotion words. In the interviews, we asked respondents to, among other
things, reflect upon the connection between emotion management and
role performance, situations where emotions are legitimate or illegit-
imate, the significance of education/work experience, their use of tacit
codes, and so forth. Importantly, one of us began collecting data in a
court, while the other started in a prosecution office. When exchanging
information about our respective understanding of the emotive-cognitive
behaviour in these two different environments (a court and a prosecution
office), we soon noticed that this behaviour was differently patterned.
This was because prosecutors’ and judges’ work is structured differently
and their roles and work tasks in the overall organization of the legal
system differ. When we switched places (e.g. moved from the courthouse
to the prosecution office and the other way around), our respective ex-
periences of the emotive-cognitive behaviour switched accordingly. This
led us to adopt the term ‘professional emotional profile’ to describe the
specific characteristics of each particular legal profession. In other words,
the professional emotional profiles differ, but the emotive-cognitive judi-
cial frame governing these profiles remains the same.
24 Why emotions in court?
Power and status
As pointed out by previous research (see the “Emotion and law” section),
attention to power and status appears to be an inherent characteristic of
any study of judges and prosecutors in their capacity as elite professionals.
An analytical interest in power and status positions, however, also follows
logically on our sociological approach, which assumes social interactions
to always be structured (framed). In sociology, power and status positions
are inherent to social interaction; they are part and parcel of how inter-
actions develop and evolve, either through the effect of formal positions
that structure the emerging interactions from the start or in the form of
subsequent interactions that revolve around relational power and status ne-
gotiations. In the power and status theory of emotions (Kemper, 2011), it is
usually the latter kind of cases that are subject to analysis, looking at how
the negotiations then give rise to, but are also informed by, discrete emo-
tions. As will be shown in Chapter 5, shifts in the power balance give rise
to emotion that motivates action, with experiences of power shaping the
subject’s professional role.
The classical concept of power has been thoroughly treated in social
science and philosophy (e.g. Arendt, 1998; Foucault, 1995; Kemper, 2011;
Lukes, 2005; Weber, 1978). For the purposes of this book, we use the notion
of power in two senses. First of all, in its traditional Weberian sense, in
which it is conceptualized as describing an asymmetrical relation (Weber,
1978). Power belongs to an individual or group who through their position
are granted the resources to command others: to get what they want even
against others’ opposition. Such power is connected to security, guilt, and
fear (Kemper, 2011): guilt is evoked when power has been used wrongfully
or excessively, fear when one’s own power is reduced in relation to that
of another’s. Second, however, we also employ the Foucauldian notion of
productive power. Power relations shape subjectivity through emotions.
Judges’ habituation of power, for instance, has consequences for their sense
of self. In our view, power is a dimension of social relations that is only
rarely either repressive or productive; usually, it is inherently both of these,
although to a variable degree.
The concept of ‘status’ is often associated with a profession’s social
recognition (Abbott, 1981). Our focus in this book, however, is on how
intra-professional, inter-professional, as well as situated status (Kemper,
2011) influence relations of professional power. Situated status comes about
as an interactional accomplishment, in which a person is recognized – for
instance, as a competent judge – and thereby achieves the goal of a smooth
court procedure without the use of power. For, as Theodore Kemper (2011:
13) has defined it, the relationship between the effect of status and power
is one between, respectively, voluntary and non-voluntary compliance. In
other words, a person or a group with a higher status can make another with
a lower status to act in accordance with its purposes without needing to
 Why emotions in court? 25
resort to the use of naked power. What is noteworthy, however, is that actu-
ally ending up using one’s power to achieve one’s aims reduces one’s status
(Abbott, 1981).
In the sociology of emotion, status is linked to emotions in a somewhat
similar way as power is, meaning that status relations embed and produce
emotions. For instance, a person who accords status to another may be
‘liked’ by that other, a person who claims more status than he or she is due
may evoke contempt, and the one who refuses to accord status to others, or
withdraws it from them, may be disliked (Kemper, 2011). Collin’s (2004) the-
ory of interaction ritual chains elaborates on the emotional energy of status
positions in group interactions, claiming that high status in an interaction
ritual evokes high emotional energy including confidence, pride, and the
like. Low status is, instead, associated with low emotional energy including
low confidence and shame.
Looking closer at the relation between power and status, we suggest that ac-
corded status brings power through the emotional resources of self-­confidence,
trust, and pride. In this way, power is productive rather than oppressive. Sta-
tus thus gives power to act to achieve one’s goals. To be sure, power can also
be enacted without status, but then it is repressive and likely to result in resent-
ment, perhaps even contempt, in the subordinate person or group (Barbalet,
1998). Accordingly, power may also involve a strive to gain status in order to
legitimize power and/or prevent resentment and resistance. In society, being
a prosecutor and being a judge are both structurally high-status professions;
both also act as representatives of the state and thus use coercive power as part
of their daily work, exercising it through their decisions that have far-reaching
consequences for lay people’s lives. The potential of abusing or misusing this
power equals the risk of experiencing feelings of guilt. Also inter-professional
mutual recognitions of, and challenges to, status function as a source of emo-
tions in judges’ and prosecutors’ work. In court, the collective achievement of
the performance of objective (non-emotional) justice requires ritual deference
to, and support for, the judge’s power as chair (see Chapter 5).

How did we do it?

What interested us here were not only the judges’ and prosecutors’
reflections on their position of power but also their inter-professional
relations and situated negotiations of power and status. When con-
ducting observations, we focused, in particular, on professional ac-
tors’ tone of voice, speech interruptions, and expressions of sympathy/
shaming, along with the way they managed open transgressions. In
the interviews, we asked the participants to reflect on their position
of power and also on their feelings of loyalty/disagreement with other
26 Why emotions in court?

professionals and clients. Through the shadowings, we then gained an

opportunity to develop a deeper understanding of the complexity of
power and status as an interplay of mutual dependencies. We noted
how legal professionals showed ritual deference to judges in order to
support the judges’ status in court. We also observed how the prose-
cutors’ power over the police was negotiated by establishing situated
status, in order to manage potential emotions of resistance among
the police. From the interactions between lay judges and professional
judges, we realized how such situated status negotiations may fail,
warranting the explicit use of power resources (Chapter 5).

Our findings in an international perspective

The ability to generalize from qualitative findings has been discussed
in terms of analytical generalizability (Alvesson and Sköldberg, 2009;
Kvale and Brinkmann, 2014). Analytical or theoretical generalizations
aim at producing ‘context-bound typicalities’ (Halkier, 2011: 788). Such
­t ypicalities refer to emerging patterns in the data, and in the analysis, they
are usually translated, for instance, into ideal-typologies or theoretical
concepts. Although there may be local context-specific variations, such
theory-building presumes that the overall patterns identified are similar
across cases, given that the cases are socially structured in similar ways.
Whether this is true or not is of course an empirical question. We there-
fore argue that the empirically derived analytical concepts presented in
this book can be applied to any legal system that, like the Swedish one,
builds on the premises that emotion and reason are mutually exclusive
phenomena and that the legal system epitomizes the ideal of pure reason.
In this section, we discuss how some context-specific variations may be
understood.
As already noted, the Swedish judicial system is hybrid in nature. It mixes
elements of the adversarial process built around antagonistic parties and a
passive, non-interfering judge with an inquisitorial process centred on a sin-
gle (impartial) investigation, undertaken by the prosecutor. In which way,
then, are our findings regarding emotions and emotion work in Swedish
courts relevant to either civil-law or common-law systems, or both?
Theoretically, apart from our case being marked by the hyper-rationalist
script of judicial dispassion, the sociological emotion theory that we engage
in our analyses carries general claims. The same structural circumstances
that were encountered in our case, such as, for instance, power and status
positions (Kemper, 2011) triggering emotions in the interaction among legal
professionals, can be found in all legal systems, albeit with local variations in
terms of the exact power/status position of the prosecutor vs the judge, and
so on. Structural theories of emotion provide a helpful analytical toolkit,
 Why emotions in court? 27
allowing one to roughly predict what emotions to expect when power/­status
relations are observed to shift to the advantage or disadvantage of the in-
dividuals involved. This, however, is not the same as knowing that the pre-
dicted emotions will occur, which is why empirical research is needed. In
this volume, we present empirical findings from Swedish courts that either
corroborate or nuance those theories, depending on the situations. To the
extent that power/status relations of the kind that we explore in this book ex-
ist in other judicial settings, we may expect there to be emotional outcomes
similar to those found in our study. Finally, leaning on previous research,
we put forward the general claim that feeling and display rules similar to
the ones identified here as characteristic of Swedish courts are also at work
in other Western courts operating under the ideal of non-emotional (pure)
rationality.
There are always domestic nuances involved, however. To begin with,
Sweden stands out in comparative studies as a high-trust society, one in
which there is generalized trust in the impartiality of the executive func-
tions of the state, such as the courts and the police (Rothstein and Stolle,
2008). This quality, combined with a tradition of public consensus (Daun,
1996), corresponds to the model of the inquisitorial system and its legal
code, and might explain the subtle antagonism typically seen between the
parties in court in the country. However, even where the court process is
adversarial, the objectivity of the investigation and presentation of factual
evidence is not supposed to ever be questioned. What these particularly
Swedish features entail is that the emotional displays by, and the open an-
tagonistic element between, parties engaged in an adversarial trial process
in Swedish courts are likely to be much more subtle than, for instance,
those in US American cases. Nevertheless, Swedish judges, just like their
US American counterparts, also do get angry sometimes, and they become
angry for similar reasons. This pattern of angry judges thus remains the
same even in a comparative perspective.
Of interest in this regard is the fact that in spite of the demonstrated
outbursts and (compared to their Swedish colleagues) forceful expressions
of anger by judges in the US, one can still claim also the American courts
follow a ‘script of judicial dispassion’ (Maroney, 2011: 634). In other words,
it is not necessarily the absence of visible emotional expressions that sus-
tains the idea of non-emotional law. In the US American system, when
legal professionals express emotions in line with the rationalist emotional
regime of judicial dispassion, these are interpreted as instrumental and
rational and thereby supposedly not contradicting the regime’s rules. This
much appears evident also from the high level of antagonism, imbued with
emotions, that is allowed between parties in the adversarial US American
court process. At the same time, however, the courts in question profess
dispassion as their guiding principle. When visiting a criminal court in the
US, we attended jury selection where the candidates received the following
instruction:
28 Why emotions in court?
When you step into your role as a jury member, imagine you’re walking
through a disinfection airlock, as if you were a surgeon on the way to an
operation, and in this airlock, all your emotions and all your personal
prejudices are washed away.
(Observation notes, San Francisco Criminal Court)

That jury members are reminded of the irrelevance and undesirability of

their emotions echoes how lay judges engaged in deliberations in Swedish
courts are kept focused on their task. Should the latter make a blunt or a
‘sentimental’ remark, they are promptly reminded to only pay attention to
facts – emotions have got nothing to do with it. Similarly, when lay judges
break the stone-faced norm of the Swedish courts, they commit a more se-
rious breach than a professional judge doing the same. While, in both the
US and Sweden, lay people need to be reminded of the norm to be able to
remember it or understand its fundamental nature, legal professionals have
presumably habituated the emotive-cognitive judicial frame. Therefore,
they have more room to occasionally transgress the frame’s feeling rules
than do the lay members of the court.
In the more traditional civil-law systems in Europe, the judges are active
during both the court process and the investigation, and they can display a
range of (comparatively strong) emotions. Although these systems remain
under-researched from the perspective of law and emotions, given that they,
too, operate in accordance with the same Western judicial values of objec-
tivity and dispassion, our findings can be analytically generalized to them
as well. Besides what we have already argued above about the emotional
expressions being interpreted within the dispassionate frame, we may find
that the judges in civil-law systems in Europe take care of balancing their
emotional displays in a manner similar to their Swedish counterparts. That
is to say, even a highly expressive civil-law judge is likely to make an effort to
treat everyone equally. Accordingly, an angry judge will not be angry only
at the defendant and his or her witnesses, but also at the witnesses of the
state. In our study, we identified this characteristic as a feeling rule requir-
ing the balancing of emotional display, so that both sides are exposed to it
to approximately the same degree (see Chapter 6).

Structure of the book

This chapter has presented the incentive for writing this book. We take an in-
terest in action that usually is regarded as purely rational (unemotional), but
which is in fact intertwined with background emotions as motivators, guides,
and shortcuts to our memory bank of experience. We chose to study judges
and prosecutors because legal professional practice allegedly has nothing to
do with emotions. The aim of the project Emotions in Court (2012–2016),
on which this book is based, was thus to study emotions and emotion
management in Swedish courts. Based on the departing from theoretical
 Why emotions in court? 29
distinction between background and foreground emotions, we wanted to
find out not whether, but in which ways, emotions are active and acted upon
in legal practice.
As an example of our research interest in this empirical field, we discussed
the concepts of trustworthiness and intuition, concepts that – within the
emotive-cognitive judicial frame – straddle the juxtaposition between emo-
tion and reason. Mapping the international research field of emotion and
law, we concluded that previous research has examined moral emotions,
empathy, emotion management, and emotions of power, though almost ex-
clusively in the common-law system. Our research takes the field forward
by empirically investigating background emotions in naturally occurring
socially situated interactions in a broad area of court practice. We thereby
offer a detailed analysis of background emotional processes in several di-
mensions of judges’ and prosecutors’ work. In taking the Swedish judicial
system as the context of our fieldwork, we furthermore extend the research
field of emotions and law to the civil-law system.
We then proceeded to present the Swedish legal system as a hybrid be-
tween the adversarial and inquisitorial systems, the functions and main re-
sponsibilities of the different legal professionals, as well as the procedure
of the hearing. Next, we introduced the theoretical framework of our data
analysis. Main concepts defined and discussed were background/foreground
emotions, emotion management, habituation, ritual, front stage/backstage,
the emotive-cognitive judicial frame, emotional profiles, power, and status.
Finally, we discussed the potential for theoretical and analytical generaliza-
tion of our findings to courts in other countries sharing the modern Western
regime of judicial dispassion, and across cases of common law and civil law.
Throughout the chapter, relevant methodological information was offered
in “How did we do it?” – boxes.
Chapter 2 presents an overview of the professional profiles of judges and
prosecutors. These profiles are the outcome of judges’ and prosecutors’ differ-
ent functions and work tasks in the legal system and of how they are selected
for their respective careers. These partly shared partly p ­ rofession-specific
­circumstances generate emotive-cognitive dispositions and challenges. Unit-
ing features are professional pride, a highly valued independence, and a sense
of belonging to ‘a uniquely valuable group’, which means that prosecutors
and judges are legal professionals on the ‘right side’ of justice. They thus share
‘group charisma’ although as distinct professional groups the group cha-
risma is not equally distributed between them. Judges are closer to the ideal
of pure objectivity and further removed from messy reality, while prosecu-
tors perform the ‘dirty work’ of purifying and translating reality into legal
codes. Judges’ professional pride revolves around autonomy and comforta-
ble power. Prosecutors’ professional pride is centred on independence, which
is ‘bounded’ in character yet capable of manifesting itself as independence
based on power. Judges enjoy higher professional status than prosecutors do,
but they also depend on the ‘dirty work’ performed by prosecutors. Different
30 Why emotions in court?
emotive-cognitive orientations thus result from these profession-specific
circumstances.
Chapter 3 takes a further look on the joint and divided hardships, to which
the professionals submit in order to prove their worth in the group of judges
and prosecutors, by presenting how emotion management is embedded in
the organizations of the courts and the prosecution offices. We first demon-
strate how neoliberal management ideology organizes time with an implicit
effect on judges’ and prosecutors’ emotion management vis-à-vis their cases,
pushing a less personalized and more detached relation to them. We then
proceed to demonstrate how the management of fear is connected to organ-
izational security concerns and discuss how fear relates to institutional self-­
confidence and generalized trust, tied to the legitimacy of the rule of law. The
last part of the chapter deals with the organizational silencing of emotions
resulting in a ‘teflon culture’ shared by the two professional groups. Teflon
culture is fundamental to the apparent accomplishment of unemotional
­legal practice by generating various techniques to separate the professional
from the emotional, but also to provide spaces and ways to, in fact, manage
strong emotional experiences on an informal and collegial basis. The dif-
ferent ­emotional profiles are furthermore seen in that judges are manifestly
lonely, but also more protected from the emotional impact of horrific cases,
in their autonomous position, while prosecutors are backed up by a strong
and protective collegial group solidarity and are, to a larger extent, tolerated
to breach the norms of the emotive-cognitive judicial frame.
Chapter 4 shifts focus from the organization to the staged drama of the
court ritual and how emotions and emotion management are tamed and
silenced by the entire dramaturgy of the rule of law, including props, script,
and language. Subsequently, we demonstrate how the performance of the
different legal roles, nevertheless, relies on skilled empathic engagement in
and management of the emotions of the lay people coming to court. The
concerted performance of objective justice furthermore requires the pro-
fessionals to communicate emotions between themselves, both tacitly and
openly. When doing it openly, the emotional communication is performed
to meet the expectations of lay people in court. In other words, emotions
are required to give the impression of authentic performance; that the de-
fence lawyers, for instance, indeed care about their clients. Tacitly, the pro-
fessionals exchange emotions like worry, doubt, assurance, irritation, and
contempt – giving cues to and arriving at agreements about how to pro-
ceed to secure a smooth court procedure. Background emotion and emotion
management are thus essential for the legal professionals to navigate the
court drama. The encounter between the ordered and purified legal version
of a crime and the fuzzy and emotional reality of crime is not always easy
to manoeuvre in line with the silencing of emotions. The legal profession-
als perform a tricky balancing act, requiring skilled emotion management
and empathic capabilities, and they sometimes slip; when the two ‘realities’
of the crime clash too hard, legal professionals experience dramaturgical
stress, giving rise to foreground emotions.
 Why emotions in court? 31
Chapter 5 examines judges’ and prosecutors’ background emotions and
emotion management from a power and status perspective. How do the dy-
namics of power and status in the courtroom influence emotions and emotion
management strategies? How do judges and prosecutors deal with power in
their work roles? How do professional power and status shape judges’ and
prosecutors’ interactions with other professionals and with lay people? The in-
creased workload requires faster decisions from both judges and prosecutors,
which, as combined with the serious consequences of their decisions, put great
pressure on their capacity to confidently perform autonomy and independence.
Thus, we examine the background emotions conducive or disruptive of the use
of power, and the emotional outcomes of power and status challenges. The
chapter also examines the emotion management strategies of power and status.
While judges are required to habituate a feeling of comfort with being in power
as part of their autonomous emotional profile, prosecutors’ power is circum-
scribed by their bounded dependence, orienting them to mitigate power with
status (‘being liked’). However, the essence of prosecutors’ independence is seen
when they sometimes use power in spite of losing status. In all these different
dimensions, the legitimacy of the rule of law is key to a confident use of power.
Chapter 6 scrutinizes the core of a legitimate rule of law and power us-
age: objectivity. The emotive-cognitive judicial frame holds positivist objec-
tivity to be static, something one ‘is’. Furthermore, objectivity is assumed
to be unemotional, because emotion, as opposed to instrumental pure rea-
son, carries social bonds and affiliations, and morality (good and bad, likes
and dislikes). We challenge this notion of objectivity by showing, first, that
objectivity is profoundly emotional because the emotive-cognitive judicial
frame sets its own moral standards and orients professionals by the pull
of professional pride (doing good) and the push of professional shame, or
shame-trigger warnings (doing bad). Second, we demonstrate the multiple
ways that objectivity is done in situated processes of actions and interac-
tions, involving emotion management, and how this situated doing of ob-
jectivity is distinctly different for judges and prosecutors. Judges primarily
focus on impartiality, while prosecutors primarily focus on objectivity,
which was enacted as a self-reflexive internal dialogue. In summary, while
emotions can be rendered formally insignificant by the legal system, they
will nonetheless be present. A lot of skilled emotion management goes into
upholding the positivist ideal of unemotional objectivity itself.
Chapter 7 presents a summary of the book’s empirical results and there-
after develops and discusses the theoretical implications relating to its main
concepts: the emotive-cognitive judicial frame, emotional profiles, and back-
ground emotions. We conclude that the emotive-cognitive judicial frame
lacks workable concepts for disentangling and evaluating emotional informa-
tion. The judicial frame thus serves a disciplining and performative function
by excluding emotions from the professional arena. Background emotions
sustain and reproduce this silencing of emotions in the various dimensions
of legal practice. Our analysis, however, shows that emotional processes are
fundamental to legal practice as well as to professional life at large.
32 Why emotions in court?

How did we do it?

In the early stages of transcribing and storing our data, all potential
identifiers such as names of persons, places, and cases, along with all
other pertinent details, were removed or changed to protect confidenti-
ality. As a result, our manner of referring to our data requires some ex-
planation. When quoting from an interview transcript, the words of the
participant are followed (in parentheses) by the fictitious name of the
interviewee, along with his or her professional role and approximate
age (rounded down to the nearest five years) to give a rough indication
of the interviewee’s work experience (e.g. Margareta, judge, 40+). In
the quotes, “[…]” indicates that some words are cut out, and “[---]”
indicates that several sentences have been cut out. Spoken emphasis
is marked by italics. When presenting excerpts from our observation
notes, the excerpt is followed by the type of case, the professional role
of the person shadowed, and his or her fictitious name and age (e.g.
Observation, fraud, Prosecutor Jacob, 50+). This helps to distinguish
between our notes from hearings and our other field notes, which is
important in light of the fact that our hearing notes represent data
collected through non-participant observation, in which notes were
recorded in vivo on a laptop. The addition of the person shadowed
gives information about the perspective (judge/prosecutor) of the ob-
servation. When we present fieldnotes from general observations and
shadowing backstage – in and out of the office, during lunch breaks,
and so on – the excerpt is followed by the location of the researcher
when the observation took place (e.g. Field notes, court or Field notes,
prosecution office). The fieldnotes made during such observations were
transcribed and elaborated at the end of the day with the aid of brief
memory notes made during the day.

Notes
1 Defence lawyers have not been the focus of our data collection, but interviews
with defence lawyers were carried out as part of two master theses associated
with our study (Holt, 2015; Rampling, 2015).
2 In Swedish, the plaintiff/injured party/victim is called målsägande (literally “he/
she who owns the case”) and the suspect/accused/defendant is called tilltalad
(literally “he/she who is addressed”). Among the different English terms used
for the corresponding parties, we have opted for the use of “victim” or “injured
party”, interchangeably, to denote the equivalent of målsägande, and “accused”
or “defendant” interchangeably to denote tilltalad.
3 Compared to other European countries, prosecutors in Sweden possess con-
siderable judicial power (Zila, 2006). If the prosecutor finds that there is suf-
ficient evidence, the suspect has admitted to the criminal act, and the alleged
offence carries a conditional sentence or a fine, he or she can order a summary
 Why emotions in court? 33
punishment (e.g. when the case is of a traffic offence, shoplifting, or theft). In
cases where concurrent sentences are passed or the offenders are young (15–18
years), the prosecutor can also grant a waiver of prosecution or initiate me-
diation. In 2016, 22% of the decisions by the prosecution authorities led to a
notification in the criminal records registry without a court being involved
(Åklagarmyndigheten, 2017).
4 Emotional socialization begins in early infancy, and emotions are usually man-
aged without much conscious reflection. A professional setting usually calls for
more deliberate emotion management strategies, but eventually also these be-
come settled in the body and habituated, and can thus be operationalized with-
out conscious reflection.
2 Background emotions in
legal professional life

While we are sitting outside the courtroom during the break, the trial pros-
ecutor approaches us, stating: “I’m curious, seeing you write so much”. Re-
searcher 1 replies: “We’re researchers studying emotions in court”. “What?”
the prosecutor asks; “emotions in court?” Looking sceptical, she asks: “So
you’re writing about us?” Researcher 1 sidesteps the question, replying that
“we’ve got a lot of writing to do from today’s hearings”, with Researcher 2
adding that “we’re mostly comparing our notes right now”. The prosecutor
seems to relax a bit. Researcher 1 explains: “We study neutrality”. The pros-
ecutor assents and says, “Right; there’s not supposed to be any emotions in
there.”
(Fieldnotes, court)

T
he vignette illustrates the routine silencing of emotion in the courts
by demonstrating the barely observable emotional processes of the
prosecutor when we bring the topic up as our area of study. The curi-
osity, scepticism, consternation, and relaxation she expresses are examples
of background emotion that she is entirely unaware of. To us, they reveal
the feeling rules of the emotive-cognitive frame by indicating that our study
area is slightly alarming to her. To calm her, we say that we study neutrality
and this being in line with the feeling rules makes her relax.
The aim of this chapter is to present an overview of the professional pro-
files of judges and prosecutors, based on the background emotional pro-
cesses that orient career choice; adherence to joint and distinctive core
values and the associated feeling rules; and the development of necessary
emotion management strategies. We relate the distinct emotional processes
to the different work tasks of prosecutors and judges, arguing that the dif-
ferent context-bound requirements associated with these professions are
what account for their different emotional profiles, which nevertheless re-
main within the shared emotive-cognitive judicial frame. Part of the shared
frame are emotive-cognitive values such as excellence, professional pride,
autonomy/independence, and objectivity. In the conclusion of this chapter,
we then link these core or sacred values to the concept of ‘group charisma’
(Elias and Scotson, 1994).

DOI: 10.4324/9781315306759-2
 Background emotions in the legal profession 35
Even though the primary focus of this book is on the state-employed judges
and prosecutors, our interactional perspective demands some attention to the
third professional actor in court, the defence lawyer. Although they are also
lawyers, the defence lawyers stand out as different from both prosecutors
and judges; they are often also described this way by the two latter groups.
The position(ing) of defence lawyers thereby reveals something about the
professional identities and emotional profiles of prosecutors and judges. We
therefore begin the chapter with a brief excursion on the emotional profile of
defence lawyers, as described in interviews with them and as seen through
the lens of prosecutors and judges. Thereafter we continue with the emotional
profile of the judge, followed by the emotional profile of the prosecutor.

The emotional profile of defence lawyers

The first and foremost duty of the defence lawyer is to represent the client.
One of the defence lawyers interviewed in our study, Ester, stated: “Every-
where where there is rule of law, I think everyone has the right of defence,
no matter what the charges are”. Taking the example of a paedophile stand-
ing on trial, she elaborated: “I don’t defend the action; I defend a system of
justice in which no one is judged without adequate evidence” (Ester, law-
yer, 50+). Another interviewed defence lawyer, who worked as both victim’s
counsel and defence lawyer, explained:

When I act in my role as the victim’s legal counsel, I do things the ex-
act same way [as I do when I’m in the court for the defendant]. I try to
relieve them of their anxiety [about the trial], asking them the kind of
questions that the defence will ask. We practice the upcoming hearing
here in my office, so that they get used to what will come, and after-
wards they usually tell me, “It was hard in court, but not as hard as in
your office”, which means the preparations worked…. Of course, [when
you are in court] you have a case to win and your job is to win.
(Bengt, defence lawyer, 55+)

Ester’s and Bengt’s statements suggest that defence lawyers employ a spe-
cific emotion management technique in their work. In general, their pri-
mary engagement and pride is in the upholding of the rule of law (see further
Siemsen, 2004). With this goal in mind, depending on their role (as a victim’s
counsel or as a defence lawyer), the same lawyer can switch from accusing to
defending people in the same type of criminal offenses (e.g. domestic abuse).
Pride in the rule of law helps them keep the emotional distance needed to
do their job equally well on either side of the law. Whether they appear as
defence lawyers or as victim counsels, they are able to keep their deep pro-
fessional engagement focused on the weaknesses of the opposing party, on
identifying and effectively sowing doubt on the credibility of both that party
and, if they are on the defence side, the evidence.
36 Background emotions in the legal profession
The emotive-cognitive judicial frame primes all legal professionals to
take pride in their particular judicial skills, but in different ways and to
different degrees. The judge’s focus is on the matter itself, the evidence,
the correct application of the law, and – in the courtroom – the empathic
chairing of the procedure (what we call ‘emotional presence’). The pros-
ecutor’s focus, on the other hand, is on the translation of actual events
into a legal code and on the collection of the kind of evidence that will
hold in court (Tilly, 2008). In court, as a party to the trial, prosecutors
may grow emotionally engaged (develop emotional presence) with the case
and the victim. Even if they take pride in, and primarily focus on, their
legal skills – and on the requirement to remain objective even when being
partial – this e­ motional engagement provides them with additional moti-
vational ­emotions to boost their performance as prosecutors (Wettergren
and Bergman Blix, 2016). They may thereby become focused on revealing
the ‘truth’, which, from their perspective, is that the victim whose interests
they represent is ‘right’.
Defence lawyers, for their part, may or may not sympathize with their
clients. The mere fact that the prosecutor has made the decision to bring the
matter to court means that there should be enough (objective) evidence for
the guilty verdict against the defendant. Therefore, as far as they are con-
cerned, they will likely be defending someone losing the case (Scheffer et al.,
2010). Their focus on winning (as expressed, for instance, by defence lawyer
Bengt above) thus represents an emotive-cognitive orientation to perform in
an antagonistic way in court, rather than a realistic goal. However, this very
orientation (desire for ‘winning’) may also go too far, explaining a pattern
among the prosecutors in this study where they could not imagine them-
selves working as defence lawyers. Karl develops this common stance:

Prosecutor Karl: The thing with working as a defence lawyer is that …

you’re not always on the right side of things. But I am always that. If I
am not, I withdraw. But that’s not possible for defence lawyers…. They
are megaphones for other people. That’s their job.
Researcher: They are in a tricky position.
Karl: Yes, of course, and sometimes they really sit on their client’s lap. But
even when they don’t, they’re still acting as someone else’s megaphone.
And, I mean, they have to believe their clients and at the same time they
don’t. It’s a really weird situation for them.
(Karl, chief prosecutor, 55+)

Also the judges sometimes expressed this desire to be “on the right side of
things”. Both prosecutors and judges voiced the opinion that, of the legal
professional categories they interact with, defence lawyers were the ones
most likely to arouse irritation or anger. In interaction ritual theory, irri-
tation and anger are emotional responses to the violation of one’s sacred
values (Collins, 2004) and thus indicate that defence lawyers are often liable
 Background emotions in the legal profession 37
to cross the line between doing their job as they should (which, all parties
agree, is about defending the rule of law) and “sitting on their client’s lap”.
The reserved emotive-cognitive attitudes towards defence lawyers –
­suspicion, doubt, and irritation, while at the same time there is relief that
someone else does the important job of defending the suspect – thus mark the
boundaries of the judges’ and prosecutors’ emotion management in their job.
These attitudes unite them in the self-image of being the legal professions
working for a higher purpose – justice – rather than for the sake of individ-
ual motives and clients. We will now turn to the judges, and thereafter to the
prosecutors, probing more in depth into the formative aspects of their re-
spective emotional profiles that make them quite different legal professions.

The judge

A formative shame or pride moment

To become a judge in Sweden, one needs excellent grades from the law
school. This is required even for the very first step in the process, which
is working in a court as a court clerk for a period. Then to be able to com-
plete the next step, entering the ranks of the judges in training, excellent
recommendations are required from the judges whom one served as a court
clerk. To get these recommendations and be suited for a career as a judge
is a ­moment of pride in accomplishment, regardless of one’s original career
plans. As recounted by Leo,

When I finished my time as a clerk I got really good recommendations

from the district court, among other things because I worked real hard
as a clerk…. But I really didn’t think about becoming a judge back then.
That came only when I saw my recommendations and thought “Oh
­
really; I guess I did pretty well”.
(Leo, associate judge, 35+)

In Leo’s statement, the recommendations appear formative for his subse-

quent career choice. In his interview, he said he had gone on to try some
“other things for a couple of years” after the clerk period, but he later on re-
turned to the career as a judge. Reversely, the choice not to become a judge
can be influenced by negative experiences such as the (background or fore-
ground) shame of not being among the selected few, as in the following case:

Those working as a judge at a district court, they’re, like, exalted to the

skies, in my view. Compared to them, the rest of us are basically dirt […]
But then you get drawn into that, and I did apply to that appellate court
position, but I didn’t have the recommendations I needed, and since, as
a rule, you can only get in there if you have the best recommendations,
I wasn’t accepted, hrmph…. But then I think that it wouldn’t really have
38 Background emotions in the legal profession
been good for me anyway to get there and work at the appeals court.
[Prosecution] is so much better. But I did apply. And I wasn’t even called
for an interview, or anything.
(Clare, prosecutor trainee, 25+)

In this quote, there are several indicators of shame (“the rest of us are dirt”,
“I wasn’t accepted, hrmph”, “wasn’t even called for an interview”), indicat-
ing the pain of being rejected. But Clare also defies the shame, emphasizing
that prosecution is “so much better”. The examples of Leo and Clare illus-
trate that the recommendations received at the end of the clerk period come
as a moment of shame or pride, shaping the persons’ emotional orientation,
either pulling them away from or attracting towards the judge’s profession,
regardless of their original career hopes.
The criteria applied in recommending some individuals over others for
the judge’s career are likely to be strongly biased towards social similar-
ity. They draw upon feelings such as those of liking someone, of comfort
and safety, and of recognition (Kemper, 2011); in turn, the fact of being
the one ‘chosen’ evokes feelings of pride and self-awareness (as Leo stated
above: “I did pretty well”) and thus a readiness to conform to the values
one has been seen to fit (cf. Elias and Scotson, 1994). The selection process
is therefore likely to reproduce established professional traditions, along
with a certain type of habitus (Bourdieu, 1999) among the judges’ ranks. In
this study, 33% of the judges self-identified as upper class or upper-middle
class, while 18% of them thought of themselves as lower-middle class or
working class. For the prosecutors, the corresponding figures were 15%
and 34%, respectively. An almost identical proportion of judges and pros-
ecutors self-identified as middle class (49% of the judges and 51% of the
prosecutors). Though the numbers here are not strictly speaking represent-
ative,1 they lend some support to our qualitative assessment that for some-
one with an atypical background, it is easier to break into the prosecutors’
ranks than into the judges’. The typical judge is middle to upper class and
native-born Swedish. The change from male to female predominance that
has been taking place in Swedish legal education in the last two decades
has recently begun to also manifest itself in courts and, even more visibly,
prosecution offices.2

Pride in status and comfort with power

The average age of appointment of Swedish district court judges was 44 in
2013. At that point, one has spent up to ten years in various training positions
(see Chapter 1), at each stage subjected to critical evaluation by one’s peers.
This means a long exposure to implicit pressure for conformity to estab-
lished behavioural and emotional norms. Habituating these norms, judges
come to identify with the law and legal institutions. Although, in Sweden,
judges do not wear robes or wigs to publicly underscore their embodiment
 Background emotions in the legal profession 39
of a bureaucratic organization at the expense of human personality, what
they do wear – a dark suit and a stone face – nevertheless serves a clear sym-
bolic marker. Indeed, the stone face is a crucial element in the judges’ public
performance of objectivity (Chapter 6).
Shadowing judges in the field – in the district courts – conveys a feel for
their comfort with being in power. When judges deliberate, people listen,
and when they indicate through small gestures that they find a topic inter-
esting or, alternatively, irrelevant, those in the room adjust their talk and
actions accordingly. The judges’ high status is not something they reflect
on – it is a backgrounded part of their professional role – but some judges
have come to reflect on their habituated comfort in power and status in sit-
uations beyond their professional sphere. The judge in the following quote
used to work as a prosecutor for several years before becoming a judge, and
she described the difference between the two professions as follows:

We talked about that the other day, that it starts to affect my private
life – that, as a judge, you never engage in a dialogue. You get so used
to the fact that if you say something, then that’s the way it’s going to be.
That I’m the one who decides. I don’t have any colleagues to run things
through, but when the lay judges try – well, it’s me who decides, and
that’s the way I always do it. If I decide that you need to leave [the court-
room], you leave; there’s no discussion about it. If you’re a prosecutor,
you discuss and you argue and – well, you do it in a very different way.
In my private capacity, I sit in various boards, and when I say something
in them and someone questions that, I go, like, “What the heck; take it
to an appeals court!” [Laughter] […] I thought about that just the other
day and laughed, the way I do that “What the heck – you talking to
me?!” “I’m the judge here!”
(Monika, judge, 45+)

As we can see from above, Monika “discovers” her comfort in being in

charge, while to some extent also distancing herself from it and analysing
its roots in her autonomous role as a judge. According to the Instrument
of Government, she is to decide autonomously (Regeringsformen) without
basing her decision on the opinion of others, implying, among other things,
a need for habituating a sense of comfort about being in charge. While,
according to the positivist ideal of objectivity, this comfort with power
ought to be grounded in legal expertise only, for judges ‘sound judgement’
is equally important as a factor legitimatizing their powerful role and their
pride in their performance:

Judge Britta: The way I think is like this: someone’s got to have [the decisive
power], because that’s how we’ve built our society, and if someone has to
have it, I think I’m a good candidate for that, compared to many others.
Researcher: Because…?
40 Background emotions in the legal profession
Britta: Because I know this [law] book and understand its purpose. I think I
have the right understanding of what the courts are there for, I’m rather
clever about solving problems, and I think I use my power in a right
way. Now and then it makes me uneasy, for sure, but not that often.
(Britta, judge, 45+)

As autonomous guardians of justice, judges embody the law, and they do

it proudly with dignity. Their objectivity work strives to remain closer to the
ideal of positivist objectivity – the God’s eye perspective – than that of prose-
cutors, while, indeed, also depending on what is usually described as ‘sound
judgement’: the ability to embrace the values of responsibility, seriousness,
and integrity. On the other hand, it is only possible for judges to uphold this
ideal thanks to the translation work done by the prosecutors, implying a cer-
tain purification of reality in order to fit within the legal code (Abbott, 1981).
While the performance of justice front stage (in the courtroom) is rooted
in ceremony and ritual to secure lay people’s emotive-cognitive compliance
(Tyler, 2006), the dramaturgy of justice (Chapter 4) also works the other way
around: it reflects and reproduces justice’s image of itself.

Autonomy
Justice’s autonomy is, arguably, a fundamental principle stipulated in the
Swedish constitution, and representing a deeply held value in judges’ training
and in judges’ professional performance. Chief judge Arni (50+) emphasized
that he tried to guide court clerks “to become autonomous legal profession-
als, because the ones I respect are those who have an independent opinion;
and I try to make the clerks understand that”. Arni thought that clerks today
tend to “blend in with the wall … like chameleons”, and he did not appreci-
ate their “obsequiousness”. It did not seem to occur to him that the clerks’
compliance in this regard might have had to do with the insecurity they tend
to feel when trying to crack the code of exactly what type of independence is
and is not called for if you do not want to be considered unsuited for a career
as a judge. The notion of judges’ autonomy indeed denotes a specific pattern
of conformity during education and training. The same autonomy also serves
as the rationale for the expectation to “do other things” in between serving as
an assessor and receiving one’s appointment as judge. As Arni explained it:

During your career as a judge, you are, in fact, encouraged, almost

forced to do other things, before you can get appointed as a judge.
Those who only work for courts almost never get a permanent appoint-
ment; it’s considered a merit to broaden yourself and do other things,
too. So most people pick up work as government enquiry secretaries, or
at ministries or the Parliamentary Ombudsmen’s office or the Ministry
of Justice or something.
(Arni, chief judge, 50+)
 Background emotions in the legal profession 41
Autonomy thus becomes an acquired capability and a personal performance,
and thereby also a performance of self-confidence and self-­assurance. As
seen in judge Monika’s case above, autonomy is tied to the comfort with
power in the sense that its successful performance demonstrates comfort
of power and vice versa. Implying impeccable personal integrity and inde-
pendence, the notion of autonomy obscures the judge’s actual dependence
on other legal professionals.

General intellectual dealers

Swedish district court judges are expected to possess broad substantial
knowledge of all sorts of juridical matters, covering a wide range from crim-
inal law to family law, from white-collar crime to civil disputes. In princi-
ple, all judges handle all types of cases. At trials they act as chairs, preside
over the proceedings and control the conduct of the parties involved. In pre-
paratory negotiations (in civil cases), they act as mediators between parties,
chiefly to help them settle their disputes by agreement before going to trial.
In this book, while our focus is on criminal cases, it should nevertheless be
mentioned that successful mediation in preparatory civil case negotiations –
be it about family or contract law – was repeatedly described by the judges
in this study as their most gratifying work experience, in terms of profes-
sional joy and satisfaction received. As described by judge Ola:

Researcher: What’s the greatest source of job satisfaction for you, work-
ing as a judge?
Judge Ola: Ahem; well, I enjoy the kind of legal issues I encounter, the
juridical problems; [solving them] that’s fun. And, in civil cases, I also
really enjoy trying to help the parties reconcile, both in family law cases
and in other civil cases – trying to see what’s behind the parties’ view
of the dispute and understand the motivations for their wanting or not
wanting to reach an agreement. I think those kinds of things are among
the most enjoyable things for me, really.
(Ola, judge, 40+)

In contrast to criminal cases, mediation in civil law cases in Sweden allows

the judge considerable space for expressing strategic emotions of frustration
and dissatisfaction with the quarrelling parties, and for strategically ma-
nipulating the parties’ feelings of anticipated success or failure (Wettergren
and Bergman Blix, 2018). Judge Ola’s statement expresses this pattern of
gratification associated with civil cases, but it also expresses a more general
source of delight, characteristic of the judge’s profession: opportunities to
go in depth into the legal analysis of a case. In this study, an intellectual
inclination for, and satisfaction from, the latter was evident in particular in
cases where the juridical aspects were challenging rather than straightfor-
ward. Judges enjoy digging deeper and pondering.
42 Background emotions in the legal profession
This intellectual aspect of the judges’ work is closely related to the writ-
ing of judgments. Many judges described the writing of the judgment as
a crucial part of their work, reporting it to take roughly as much time as
the actual trial. The ‘pedagogics’ of writing a judgment is a topic of pro-
fessional development among judges in terms of both the intelligibility of
the text – the written judgment is read not only by lawyers, but also by
the lay people involved – and necessity for it to clearly reflect the fact that
both parties have been heard by the court. At the same time, prosecutors
mentioned this intellectual side of the judges’ work as one of the reasons
why they did not want to be judges. As one of them expressed it: “I felt like
I didn’t want to dig into matters so much; I like it when there is speed and
motion and when a lot of things are happening simultaneously” (Anneli,
assistant prosecutor, 30+).
Being “general dealers”, as chief judge Ruth (65+) described it, could,
however, also be seen as a burden to judges in the judicial status competi-
tion in our increasingly complex society requiring more and more speciali-
zation. In complex cases, judges’ general competence can, Ruth suggested,
undermine their status vis-à-vis prosecutors and defence lawyers: the latter
professions allow for possibilities to develop and deepen one’s skills and
knowledge in specialist areas. While, on the one hand, judges in Sweden
have a highly varied job role, decide as they do in all sorts of cases, there,
on the other hand, are fewer routes available for them to develop their ca-
reer, which makes their profession relatively static in comparison to that
of prosecutors and lawyers. No judges in our material, however, expressed
themselves as feeling any professional lack of confidence in relation to their
highly competent and specialized defence lawyer or prosecutor colleagues,
although it was possible to observe gifts of deference and respect shown
to them. Judge Niklas (40+), for instance, shadowed during a tax evasion
trial, spoke of his admiration for a prosecutor specialized on economic
crime that he sometimes dealt with, describing him as “extraordinarily
skilled”.

Niklas spoke warmly about the prosecutor, openly admiring his clever-
ness, his ability to keep all the facts of a case well ordered in his mind,
and the way he could begin attacking from one angle only to soon after,
unexpectedly, hit hard in an entirely different direction, like a brilliant
baseball slugger or a well-trained terrier.
(Fieldnotes, court)

Procedural justice: an increased service orientation

In this study, there was one area regarding which judges talked openly about
emotions and emotion management, and that was the treatment of the lay
people in court. In line with a generally increased focus on procedural jus-
tice, this articulation represents a broader societal shift, of which the recent
 Background emotions in the legal profession 43
service orientation of state bureaucracies in Sweden is part (cf. Du Gay,
2008). As a result, courts are required to develop ‘good treatment policies’
and for this purpose to investigate how lay people in court experience their
‘visit’. During our data collection, we observed such investigations under-
taken as face-to-face standardized interviews with lay people in the entrance
and waiting halls, by project groups consisting of volunteering judges and
administrative staff at the courts. There were also exchange-projects going
on where courts investigated each other:

As part of the collaborative good treatment project, judges from the

court in [name of city] will come today to observe different trials and
to inspect the environment, such as the waiting halls. They have even
called the administrative office to check out the treatment on that
end.
(Fieldnotes, court)

The focus on good treatment requires personal representation to some ex-

tent, as it recommends all judges to present themselves and the rest of the
court by name and, postulating empathy, forcing all judges to situationally
adapt to the lay people in court. Indeed, making lay people in court feel
less stressed out and more comfortable is becoming a notable goal for some
judges, who gain professional satisfaction from achieving that goal, as elab-
orated by judge Sanna who starts by referring to civil case mediation:

Chief judge Sanna: It’s a true joy when you can make a difference in the
courtroom, through the way you treat people, by making them feel seen
and listened to, by finding a solution – that’s all very nice. And the same
is true also about criminal cases, when you deliver a verdict to someone
who actually is pleased [laughs] or satisfied or thanks you. It’s gives you
a very nice feel when you can reach someone.
Researcher: How do you notice that: you get feedback?
Sanna: Well you [light laughter] – you feel it in the courtroom, yes, when
people are satisfied, yes.
(Sanna, chief judge, 50+)

Typically, judges in training have been taught to be even more mindful of

the importance of treating people coming to court well. However, the fact
that the judge’s profession is primarily about exercise of power complicates
the notion of good treatment as a service rendered to the citizens. This can
be seen when – as sometimes happens – the focus on being welcoming and
service-minded obscures the power positions in the court, as in the follow-
ing case:

The defence lawyer asks if his client may leave. Judge: “Yes, of course!”
The defendant gets up, and begins to walk towards the door. The judge,
44 Background emotions in the legal profession
staring at his back, with a cheerful voice: “Thank you for coming here
today!” The defendant, not turning around to look at the judge, answers
quickly over his shoulder in a bitter, ironic tone: “Yeah, but I had no
choice, did I.”
(Observation notes, drunk driving, associate judge, Asger, 30+)

The cheerfulness of the nice and welcoming approach illustrated in this ex-
cerpt appears thoughtless and clumsy and is rejected as hypocrisy by the
defendant. It stands in sharp contrast to the seriousness emphasized by chief
judge Ruth in Chapter 1 (p. 3). Seriousness, indeed, was for her the right
respectful approach to the lay people subjected to her power in court. In
the following quote, judge Ruth points out the contradiction between this
“serious” power and the above-noted diminution of judges’ status to that of
“any civil servant”:

It’s in some ways taboo to speak about our status, that judges ought
to act from a position that invites public respect and is not like that of
any ordinary civil servant […] I mean, it’s a profession in which you,
throughout your life, have to keep in mind that you’re a person with
an awful lot of power. [---] It’s a power-amassing profession, one that
should for that reason perhaps be more special in society than any or-
dinary civil service profession, which is nevertheless the direction in
which we’re heading now I think.
(Ruth, chief judge, 65+)

The examples of Asger and Ruth highlight different understandings of

how to achieve procedural justice in courts. On the one hand, there is the
“good treatment approach”, which risks conflicting with the factuality of
the judges’ exercise of power, while, on the other hand, there is a traditional
approach, emphasizing respect for and the seriousness of the exercise of
power.
To summarize this section on the general elements of the judge’s emo-
tional profile, we found pride in the exclusivity of being welcome to join
the judges’ ranks: pride in one’s status as a professional judge; a sense of
assurance and comfort about possessing and exercising significant power;
a strong and highly valued sense of autonomy; and an interest and pleasure
in the intellectual challenges presented by complicated juridical matters.
As ‘general dealers’, the judges derived pleasure from emotionally deviating
from their otherwise habituated stone-faced demeanour when engaging in
civil case mediation. Another source of professional satisfaction is related to
the recent focus on good treatment of lay people in court. This focus made
judges pay attention to how their demeanour affects lay people in court,
highlighting the importance of deliberate emotion management strategies.
It also problematised their position of power, while, to some extent, ob-
scuring their status as “not just ordinary civil servants”. Turning now to
 Background emotions in the legal profession 45
the prosecutors, we begin with the shame/pride moment of receiving one’s
recommendations from clerk service.

The prosecutor

An issue of personality?
Researcher: You never thought of becoming a judge?
Prosecutor Henrik: I did, for a while, but still, in my experience, the
prosecutor’s profession is more independent, you know, because [in that
role] I set the framework for the trial: this is what the court is to decide
about. And I like investigations, collaborations with the police, being
there from start to finish, and, like, moving things around and piecing
them together to deliver a good product. And I like the mixture of work
tasks; it’s not like being a judge who just sits and listens to the parties
and then rules. As a prosecutor you can be active in so many different
ways.
(Henrik, prosecutor, 45+)

The formative shame/pride moment of receiving one’s evaluations at the end

of one’s clerk period also means that some clerks’ hopes to become judges
will go unfulfilled. Prosecutor Henrik, as quoted above, however, illustrates
a pattern among prosecutors in this study to characterize their profession as
in many ways more attractive than the judge’s, seeing it as more varied and
multifaceted than the latter. Indeed, the work tasks of a prosecutor differ
much from the work tasks of a judge.
Prosecutors lead investigations and give directives to the police, decide
whether to close down cases or to prosecute, and speak with the police,
defence lawyers, lay people, and a number of relevant authorities such as
the prison and probation service and the social services. Shadowing pros-
ecutors gives a close sense of the rhythm and pace of their work, entailing
frequent phone calls, overflowing email inboxes, meetings with the police,
discussions with colleagues, communicating directives to the police, and
drafting of strategies for presenting cases in court. Prosecutors can work
on up to 40 cases at the same time. There may be people to talk to or de-
cisions to be communicated in one investigation but when that one runs
into a momentary pause or deadlock, the prosecutor puts it aside and im-
mediately continues with another investigation, or issues indictments in
investigations that have been completed, or closes an investigation that
cannot go any further, or prepares for the case/s that she or he is taking to
court the following day. There is restless activity in the prosecution office,
a constant movement of people going in and coming out of the individual
offices. It is also true, as suggested above by Henrik, that the prosecu-
tors’ work may be more influential and powerful in essence as compared
to the judges’ work, since the prosecutor is the one who elaborates and
46 Background emotions in the legal profession
encodes the material to be presented for the court. Since prosecutors may
specialize later on in their career, becoming experts in specific types of
crime, they also become highly knowledgeable in particular sections of
the law. The experienced specialized prosecutors can thus wield consider-
able power and status in court, particularly through the way they define,
develop, and, in general, handle their cases. Thereby, they truly “set the
framework for the trial”.
Given these differences between judges’ and prosecutors’ work, it is no
surprise that prosecutors stress personality as the main reason for having
inclination for either one or the other of the two professions. Karen (prose-
cutor, 30+) in the following quote suggests that the personality traits precede
the recommendations:

Karen is convinced that it’s one’s personality that steers one in the
choice between a prosecutor’s and a judge’s career. According to her,
you can see already during the clerk period which people will end up
going in which direction. Those who are more reserved, very, very me-
ticulous, and show ambition are the ones who will get good recommen-
dations and go on to work for appeals courts, since it is permanently
appointed judges who evaluate them and they tend to choose people
who are like themselves. The extrovert and talkative ones become pros-
ecutors. Karen says there is a more open atmosphere in the prosecution
offices, but there’s a bit of a macho culture there, too. There it’s not me-
ticulousness that’s valued, but instead toughness, the ability to “throw
yourself in it”.
(Fieldnotes, prosecution office)

Karen in this excerpt suggests that, when assessing clerks’ performance,

judges view more positively those individuals who demonstrate personality
traits similar to their own. She also indicates, however, that court clerks who
are aware of their own personality characteristics have an idea about the op-
tions they are likely to have available to them at the end of their clerk period.
They may then begin to orient their interest towards a prosecutor’s career,
concluding that that of a judge is “not their thing”, as chief prosecutor Inga
expressed it, continuing:

I don’t really like the … I’m not good in writing long judgments. So being
a prosecutor fits me fine: it’s a reasonable effort for me to write and issue
indictments, kind of, and I’m the sort of person who likes the speed….
(Inga, chief prosecutor, 50+)

It is worth noting here that the selection process for a position of prosecu-
tor relies less on peer evaluation and more on standardized criteria (var-
ious tests), which may then result in there being a more diverse group of
people working as prosecutors. Today, there are more women than men
 Background emotions in the legal profession 47
in the profession, and there were also some prosecutors of foreign origin
in our material. As we saw earlier in this chapter (p. 38), more of the pros-
ecutors categorize themselves as having a working-class background. The
average age of appointment of Swedish prosecutors (after approximately
three years of training) is around 30, or considerably younger than that of
the judges.

Mediators, translators, and purifiers

The above-quoted chief prosecutor Inga, in her interview, went on to explain
that she chose prosecution because she “wanted to stay closer to the reality
somehow”. This was a quite typical statement from the prosecutors. Unlike
judges who ought to remain detached and in principle not engage in the kind
of theoretical reduction of complexity implied in judicial encoding, prose-
cutors do the translation work of purifying fuzzy reality, encoding it in judi-
cial terms (cf. Abbott, 1981; Tilly, 2008). This translation work puts them in
contact with ambivalence and insecurity, calling for explicit and conscious
management of their own emotions and the emotions of others (Wettergren
and Bergman Blix, 2016). Put simply, prosecutors purify the complex reality
of the case into the form of legal categories that enable the courts to decide
on it. As prosecutor Lara explains below, her and her colleagues’ position in
between “reality” and the judicial world makes them into mediators between
the court and the police, doing translation in both directions:

Prosecutor Lara: I feel that we prosecutors operate somewhere in be-

tween. The police prefers to solve things practically and the courts are
even more theoretical than we are, and juridical, so you’ve got to ac-
commodate these different values somehow.
Researcher: It becomes your task then to do just that?
Lara: Yes, and to understand. For instance, if the police get called in, they
may have to separate the parties first instead of collecting evidence, al-
though it’s supposed to be their first priority upon arrival. And then you
sit there in court and the judges are, like, “Right, so why did you move
these things around, why didn’t you just secure the evidence!?” and then
you have to explain…
Researcher: …that this is the way reality looks?
Lara: Yes, somehow, and then the police already thinks that prosecutors are
otherworldly, but the court is even one more step further removed from
reality. But we understand better that you need to do this the proper
juridical way. And then you have to explain to the other side [the po-
lice]. So people may get irritated and there can be misunderstandings,
because you don’t know one another’s roles and the conditions shaping
everyone’s work [---]
Researcher: Could you say that prosecutors act as kind of translators be-
tween reality and the legal code?
48 Background emotions in the legal profession
Lara: Yes, in a way it amounts to that…. I suppose that’s why you get these
juridical expressions…. You use one language in there [in the court-
room] because you transform that, I mean, what happens in reality, into
juridical language.
(Lara, prosecutor, 30+)

Whether the prosecutors work in investigation teams, draft the indictment,

or argue the case in court, they are constantly mediating between the two
worlds: the “dirty work” of the police and the “pure” world of the judges (cf.
Ashforth and Kreiner, 1999). As already noted, part of the prosecutors’ pu-
rifying work consists of deciding about the framework, which also involves
the presentation of the evidence: what to state and in which order, which
piece of evidence to present first, and whom to examine first, all of which
has importance for the court’s interpretation of the case. In cases like fraud
that involve complicated technical evidence, the prosecutors think about
and calibrate the presentation continuously. In the below quote, one prose-
cutor describes how he would proceed in developing his case during the first
day of a longer fraud trial:

I will have a PowerPoint presentation: first I’ll show how to connect the
phone to Defendant 1 – calls to his wife, some car photos, and a film. I
want them to become convinced about that first. After that we can go
through the charges one after the other. So, first for the whole thing –
who is Defendant 1? What relationships does he have? Where does he
live? Where does his telephone “sleep” at nights? And I do all that to
make them [the judge and lay judges] convinced that this is actually
Defendant 1’s phone. Because if they don’t buy that, it doesn’t matter
what I come up with next; they first have to become convinced that it is
his phone. All that I do before noon, and then in the afternoon we’ll go
through the charges, one after the other.
(Linus, prosecutor, 40+)

Although prosecutors in Sweden have to investigate circumstances both

incriminating and exonerating for the defendant, the development of the
investigation tends to orient the prosecutor towards either increased or
decreased commitment to the case (Bandes, 2006). In other words, when
the evidence becomes stronger and stronger against a particular suspect,
the prosecutor’s rising assurance that the suspect can be proven guilty
reinforces background emotions of commitment like interest, excitement,
and dedication. Assured commitment forecloses further investigation of
(for the suspect) exonerating circumstances and the prosecutor’s focus
turns to the presentation of the case in court, with the hope to win the
case. Below, prosecutor Wenche complicates the requirement that pros-
ecutors remain objective both during the investigation and as parties in
court:
 Background emotions in the legal profession 49
There are those kinds of cases where you have to make out the con-
nections, you have to put a lot of time in establishing the details – like
that they wear the same clothes in different surveillance camera shots –
you must emphasize that evidence and point out the connections and so
forth; but it’s still all based on facts. You just have to work on the right
way to present them.
(Wenche, prosecutor, 35+)

When prosecutors proceed to “emphasize that evidence”, “point out the

connections”, and “work on the right way to present” the material, their
purifying work includes interpretation. It implies that one can, and also
must, do more with “facts” than merely translate them into legal codes to
be presented to the court. Indeed, the presentation of evidence may require
time-consuming preparations even before the decision about prosecuting
the case and taking it to the court is made.

Committed to justice
I like what you do [as a prosecutor]; you try to work for justice, in a way.
I think that’s the difference between prosecutors’ work and the task of
the defence lawyer, which is to protect the client, and the judge, which
is to evaluate the evidence. They don’t work for justice in the same way,
to reveal what’s right; judges just evaluate the evidence presented by
the parties. Whereas, in my opinion, we’re the only ones who can fight
for justice, for what’s right, whether the defendant has done it or hasn’t
done it. We have to objectively uncover everything. And I think that’s
beautiful, a beautiful thought.
(Agnes, prosecutor trainee, 30+)

Agnes’s description here reveals a recurrent fundamental motivation that

drives prosecutor’s work: a desire to reveal the truth and further justice. It is
rarely articulated as explicitly as Agnes does here, owing to a deep ambiva-
lence built into this motivation. Prosecutors are expected to be committed
to the pursuit of justice, while at the same time also steadfastly adhering to
the objectivity requirement (Bandes, 2006).
Following the emotive-cognitive judicial frame, justice is not concerned
with the truth but with ‘facts’, evidence. The positivist ideal of objectivity
in the legal system rests on this focus on facts. In the embedded mundane
work of prosecutors, however, commitment, justice, objectivity, and facts/
evidence are complicated. In the previous section, we saw that for prose-
cutors, growing commitment to a case walks hand in hand with growing
evidence against the suspect. Growing commitment thus involves increas-
ing conviction that the suspect is guilty, as will be proven, and justice be-
comes confounded with truth (which is the case in Agne’s excerpt given
above). Preparing the case for the court, the purifying and translating work
50 Background emotions in the legal profession
of prosecutors entail reduction of complexity and interpretation. Roughly
described, one could say that prosecutors produce legally encoded facts and
evidence for the court. For this reason, the requirement to be committed and
objective at the same time is fraught with problems. It necessitates prosecu-
tors continuously to reflect upon if and how commitment carries them away
from objectivity. Chief prosecutor Ingvar illustrates this reflexivity below:

You are prosecutor for a reason, of course, and in court you pursue
the case, but that doesn’t mean you’re always right, or that things al-
ways turn out the way you anticipate. Even prosecutors can be wrong,
or things can appear in a different light […] A prosecutor needs to have
this sensitivity, so a good prosecutor is objective and sensitive and influ-
enced by impressions; you can’t successfully pursue your case without
listening […] You should be engaged and do your homework well, but
that’s different from taking things personally.
(Ingvar, chief prosecutor, 45+)

As described by Ingvar, objectivity for the prosecutor means remaining sen-

sitive to potential changes in the evidence and taking into account others’
perspectives throughout the process, which demands a capability for con-
stantly shifting commitment. It also presupposes a foundational sense of
pride in remaining objective. This pride in objectivity was accentuated when
prosecutors compared the different roles of prosecutors and defence law-
yers. When doing so, they often emphasized the importance of the defence
lawyers’ role per se:

The defence lawyers have the most important role in the justice system,
and they are often the ones who take the most shit from society and in
the news … they have an undeserved bad reputation.
(Dagur, prosecutor, 35+)

On the other hand, they could also describe their own choice of profession
as an objective antipode to that of a defence lawyer:

I think I do what’s important for society, if you think about the other
side, the defence lawyer, it’s an important task too, but it’s more like
“Well, I make lots of money” that’s their main thing. As prosecutor I
tend to think that I’m an important cog in democratic society.
(Josefin, prosecutor, 35+)

Josefin expresses the suspicion and doubt directed against defence lawyers,
discussed in the beginning of this chapter (pp. 36–37), by saying that “mak-
ing money” is their main motive. Comparing her own job as prosecutor to
the defence lawyers thus makes prosecutors stand out as objective cogs in the
machinery of democratic justice; prosecutors become inherently objective.
 Background emotions in the legal profession 51
Complicated cases that highlight the taxing paradox between objectiv-
ity and commitment include those that involve violence and abuse in close
relationships, sexual abuse, and child abuse. In this kind of cases, factual
evidence tends to be weak due to the victims’ failure to report them properly
and there are frequently no or few witnesses, owing to which prosecutors
many times have to rely primarily on the trustworthiness of the victim and
the witnesses. At the same time, victims of violence and abuse in close re-
lationships, for instance, tend to have low trustworthiness in court, either
because they are children and, as such, are seen as unreliable as witnesses
(Landström et al., 2013), or because battered women are prone to regret and
withdraw the charges (Enander, 2010). There is an organizational (manage-
rial) fear that prosecutors feel too strongly about these cases: they become
too committed (to justice/truth) and are believed to lose sight of the objec-
tivity requirement (focus on facts/evidence) guiding their work. It is also well
known that these prosecutors are more prone to burnout because of high
levels of stress, frustration, and disappointment. Spending much time and
energy in investigations only to conclude in the end that there is not enough
evidence to pursue the case is very common among these prosecutors (Törn-
qvist, 2017). As a prosecutor of child abuse cases, Ursula (30+) explained,
child abuse prosecutors – contrary to other prosecutors – spend a lot of
time assisting the police interrogations with the children in the investigation
phase. Due to this, and to the fact that most of the investigations are closed
down, child abuse prosecutors “go to court less frequently than the others”
(Ursula, prosecutor, 30+), making the work with these cases less varied and
rewarding.
Closing down an investigation of abuse in a close relationship actual-
izes the gap between justice as being “what’s right” and “the truth”, on the
one hand, and justice in the legal sense (that which can be proven), on the
other hand, giving rise to ambiguous emotions regarding the meaningful-
ness of being a prosecutor (Törnqvist, 2017). One way to solve this potential
emotional dissonance is to embrace the division between truth and justice.
Thereby, prosecutors can maintain their belief that a person is guilty in a
moral sense, while taking some comfort in the feeling that they follow the
objectivity ideal and act professionally when deciding to close down the in-
vestigation. Moreover, as Chapter 3 in this book shows more in depth, the
structure and organization of prosecutors’ work tasks contribute to the abil-
ity to both be committed and quickly let go, moving on to the next investiga-
tion. Prosecutor trainee Clare describes discovering this:

Someone said the most important thing to know here is how to be able
to let go of things. And I suppose when you’re doing 20 different things
simultaneously … you must be able to work with them in parallel and
you can’t be afraid of letting go of some of them…. So, if you can’t let go
of things that way, you can’t do this job.
(Clare, prosecutor trainee, 20+)
52 Background emotions in the legal profession
A large part of the emotional burden of prosecutors then arises from having
to deal with the potential disbelief and outrage of the lay people involved.
They need to explain to the latter that the decision not to pursue the case
further is only because of judicial circumstances, not any moral judgement
concerning the perpetrator, the victim, or the crime itself. The incompati-
bility in practice of the combination of commitment and positivist objec-
tivity embedded in the prosecutor’s in-between position as a “translator”,
the paradoxical upholding of opposite stances emotionally and cognitively,
was nicely captured by Karl (chief prosecutor, 50+): “You should be em-
pathic. You should have a certain amount of callousness. You can’t be too
empathic. Or you should be empathic but still … callous”.

Independence and collegiality

As noted earlier, the protection of the judges’ highly valued autonomy is
built into the nature of their training and actual employment as judges.
Among the prosecutors, it was, instead, ‘independence’ that was empha-
sized. Throughout the book, we will highlight the ‘boundedness’ of this
valued independence, referring to prosecutors’ complex web of relations
to other professions, on which they de facto depend to do their job (e.g. the
police). Prosecutors need to make the relations to these groups work with
as little friction and frustration as possible; usually by means of skilled
emotion management – to become “well-liked” prosecutors – rather than
using whatever formal power they may have over these groups. When
prosecutors’ commitment to their professional goals conflict with the nur-
turing of these relationships, the actual strength of their independence
is demonstrated by disregarding its boundedness. This can be achieved
by means of power exercise (as when a reluctant victim is forced to carry
on with the charges) or by means of pretending not to see the needs or
expressed wishes of others. Prosecutors’ independence is thus tricky to
master, because it requires, on the one hand, keen attunement to others
and, on the other hand, capacity to be completely insensitive to others. In
this section, we will focus on the way that independence, for prosecutors,
emerge as a core professional value in tandem with their position as noto-
riously exposed to criticism and pressure from all possible directions. As
Karl explained it:

This is – it must be one of the toughest legal professions, as I see it, given
our independent position. We drive investigations, we decide about
prosecution, we go to court, and we are entirely independent, eh, we are
surveilled, we have results to achieve for the boss, we’ve got to be quick
and so on; the mass media, the victims, the courts are onto us, and the
lawyers. I mean it is difficult to imagine a tougher job, actually.
(Karl, chief prosecutor, 50+)
 Background emotions in the legal profession 53
This excerpt contains two seemingly contradictory statements (on the one
hand, prosecutors are ‘independent’, and, on the other hand, they are ‘sur-
veilled’) separated only by a sign of hesitation (‘eh’), illustrating the way that
prosecutorial independence is paradoxically shaped in response to control
and critique. Autonomy for judges means to remain immaculate in one’s
judging and thus protected from contamination by messy reality, while inde-
pendence for prosecutors means developing a protective shield while remain-
ing embedded in the messiness of reality. Independence then assumes, first,
an ability to deal with guilt feelings that stem from demanding things from
people without promising anything in return. That is to say that prosecutors
demand from the police to provide material and witness reports, and from
victims and witnesses that they perform their part, while all these efforts
may also lead nowhere in the end. Second, in relation to their peers (defence
lawyers), independence, for prosecutors, means having to deal with feelings
of resentment and humiliation as part of the antagonistic court interaction.
In relation to judges, prosecutors’ independence means having to deal with
humiliation and frustration arising from the judges’ structurally superior
position and power (see also Chapter 5). “Dealing with it” in all these arenas
and interactions amounts to an effort to balance one’s commitment and de-
tachment, to keep being committed to the pursuit of justice, while all the time
prepared to “letting go” and to be able to withstand critique and ridicule.
Given the high workload and fast pace of work characterizing the pros-
ecutors’ profession, emerging connotations of the core value of independ-
ence are also flexibility, improvised problem solving, and having a good ball
sense. Indeed, various metaphors from ball games were frequently used by
the prosecutors: dealing with suddenly emerging issues, for instance, was
called “taking it on the volley”, while the situation where one pursued sev-
eral cases at once was described as “having many balls in the air”, and stay-
ing focused “keeping your eyes on the ball”. Ball games and prosecution
may indeed not be very far apart, as illustrated by Peter in the below quote,
talking about how his experience as a soccer referee got him the job as a
prosecutor:

I was an almost elite-level football referee when I became a prosecutor;

I think it contributed to my getting the job. I got this first interview [at
the prosecution office], it was a short one, and it felt like just blah blah
blah and then the last question. I had mentioned my football thing, and
so this last question was: “Tell me why you’d be a good prosecutor”.
And I felt like that was what the entire interview was for. And I just
said: “Well, I’m used to making quick decisions, I’m used to making
uncomfortable decisions, and I’m used to getting so much shit for those
decisions.” And then I looked up and it was, like, “OK”…. But then I felt
“Ah, that nailed it!” [laughter].
(Peter, prosecutor, 40+)
54 Background emotions in the legal profession
The comparison of the prosecutor to the soccer referee is telling of how
prosecutors perceive of themselves as exposed to critique. In most situa-
tions, being independent also means acting on your own, alone. In contrast
to the judges’ comfortable and symbolically inaccessible position when
presiding in court, there is a palpable sense of loneliness and vulnerability
surrounding the prosecutors in their position in court, underscored by the
staging of the courtroom; prosecutors sit, often alone, on the left long side
facing the defence lawyer and the accused, with the judge and lay judges and
the clerk in an elevated bench on the short side of the courtroom.
Meanwhile, this loneliness of prosecutors in their professional front stage
is alleviated by a very strong sense of loyalty, collegial solidarity, and team
spirit backstage. We experienced this team spirit hands-on when shadowing
prosecutors. The following excerpt from a lunch break illustrates the team
spirit being pointed out as alleviating the hardships of prosecution:

“But”, says Prosecutor 1, “at the same time it’s the most enjoyable job
in the world”, with Prosecutor 2 agreeing and saying that there is a very
tolerant and collegial atmosphere at the office, with everyone helping
and supporting one another. “We’re a team”, Prosecutor 2 agrees and
clarifies that he means the entire prosecution office. Prosecutor 1 adds
that since the work pace is so fast, people in the office have to constantly
ask one another for help, because it takes too much time if you check
everything on your own.
(Fieldnotes, prosecution office)

The organizational context of, and support-providing collegiality between,

prosecutors make them less prone to consider errors and mistakes made by
their colleagues as an embarrassment to the entire judicial system. In this
sense, prosecutors were less judgemental about their colleagues’ mistakes
than judges. While they often extensively criticized judges and defence law-
yers, they rarely spoke badly of other prosecutors. Indeed, what truly trig-
gered a moral outrage among prosecutors was an attack on their profession
as such, for example, by claiming that the prosecution office does not work
as it should or fails to maintain its objectivity. Such accusations were some-
times made by defence lawyers in court and would be a sure way to upset the
prosecutors. Thus, while the emotive-cognitive judicial frame produced for
judges a strong sense of pride in, and protectiveness of, the legal system as a
whole, for prosecutors it produced a strong sense of pride in, and protective-
ness of, the prosecution office.
To summarize this section on the general elements of prosecutors’ emo-
tional profile, we found an emerging awareness of and pride about the actual
power of one’s profession, a profession that in the judicial world neverthe-
less still has a lower status than that of judges. When ordering and encod-
ing reality for the judicial process, prosecutors purify the messiness of it
(Wettergren and Bergman Blix, 2016). Performing this translation, they get
 Background emotions in the legal profession 55
to decide and shape the framework for the court’s decision-making, and,
by means of well-crafted presentations in court, they mark the matter with
their interpretations. This ability can be further enhanced by specializing in
specific areas of criminal law. Prosecutors in retrospect (but sometimes also
early on, during their clerk period already) defined their personality as more
suitable for the prosecutor’s than the judge’s career, because they could both
endure and enjoy the pressure and the fast pace of the job. In their interme-
diary position, however, prosecutors found themselves subjected to the par-
adoxical requirement of commitment along with the positivist objectivity
called for by the emotive-cognitive judicial frame. Independence was highly
valued by prosecutors as a means to juggle contradictory demands, with-
stand workload pressure and cope with vulnerability: as mediators between
‘reality’ and the judicial world the prosecutors were exposed to criticism
and assaults from frustrated police officers, lay people, defence lawyers, and
judges. Consequently, there was a high degree of collegiality and solidar-
ity between them, along with a higher threshold of tolerance of collegial
mistakes.

Conclusion
This chapter has analysed key dimensions of the tacit everyday background
emotional processes and emotion management strategies of legal profes-
sionals. This was done by looking at the specific features and conditions that
distinguish the judges’ and prosecutors’ profession, respectively, beginning
with the shame/pride moment at the end of the court clerk period. Based
on acceptance to do clerk service – which requires excellent grades from
law school – and the emotive-cognitive boundary drawn towards defence
lawyers, excellence and professional pride in the independent pursuit of ob-
jective justice were shown to be some of the key elements of the emotive-­
cognitive judicial frame shared by the two professions. Yet, these elements
were elaborated differently in practice, given the different organizational
contexts and work tasks distinctive of the two professions.
Judges typically enjoy the highest status among all legal professions, with
inclusion into the judges’ rank functioning a sign of recognition fuelling
judges’ professional pride. Several of the prosecutors in this study had at
some point realized having the wrong ‘personality type’ to pursue a career
as a judge, but developed a strong sense of pride in their purifying, translat-
ing, and mediating function – a function on which the judges, paradoxically,
depend for their performance of autonomy. In the context of the judge’s
profession, independent pursuit of justice is given by autonomy, and the
meaning of autonomy is connected to the positivist objectivity ideal, the
ability to stand free to assume a God’s eye perspective. The habituation and
performance of autonomy by the judges thereby becomes central for the le-
gitimacy of the legal system as a whole and judges come to proudly embody
that system.
56 Background emotions in the legal profession
In contrast, prosecutors were exposed to critique and pressure from all
directions, due to their mediating position. Compared to judges they are
immersed in fuzzy reality, with the task to purify reality by way of legal
encoding. To prosecutors, independence is accentuated to enable them to
withstand the work load, the fast pace, the loneliness, and the constant at-
tacks on their professional self. Towards that end, they also relied on their
strong sense of solidarity with other prosecutors and the relatively high de-
gree of tolerance among themselves for collegial mistakes (cf. Asforth and
Kreiner, 1999). In contrast to judges, independence for prosecutors also
meant navigating a double consciousness, encompassing an imperative for
both positivist objectivity and committed truth-seeking. They took great
pride in this flexible capacity to move between the two opposite stances.
The division of labour between the prosecutor and the judge is vital for the
emotive-­cognitive judicial frame’s systematic silencing of emotions, and
thus, for sustaining the core ideal of positivist objectivity.
The way the emotive-cognitive frame and its feeling rules orient legal pro-
fessionals’ work can be elaborated using Elias’s concept of ‘group charisma’
(1994). The term refers to the sense of comfort, pride, and security one re-
ceives from membership in a powerful, high-status group and the way this
comfort is transformed into values of purity and superiority.

Pride in the incarnation of one’s group charisma in one’s own person,

the satisfaction of belonging to and representing a powerful and […]
uniquely valuable […] group is functionally bound up with its members’
willingness to submit to the obligations imposed upon them by mem-
bership in that group.
(Elias and Scotson, 1994: xxiii)

Group charisma thus provides a motivational pull to shape professional sub-

jectivity in line with the emotive-cognitive (judicial) frame. It furthermore
implies that the hardships and suffering involved in becoming a member
of the group are accepted as necessary. In other words, the pride orient-
ing professional performance in line with the emotive-cognitive frame and
the shame of failure are linked to group charisma. While the shame/pride
moment and the way the ranks of judges are reproduced accentuates the su-
periority of judging inducing judges with, in a sense, more group charisma
than prosecutors, the distinguishing emotive-cognitive features shared by
prosecutors and judges also indicate shared group charisma in relation to
defence lawyers and legal counsels. Underscoring this connectedness, as we
have seen, regardless of their higher status judges’ privileged removal from
fuzzy reality relies on a “double bind” (Elias and Scotson, 1994), or interde-
pendence between judges and prosecutors. Although the sense of purity and
superiority is stronger among judges, they effectively depend on the prose-
cutors who purify, encode, order, and present the matter for them to decide
upon.
 Background emotions in the legal profession 57
Notes
1 The sample in this study was not representative. Judges and prosecutors vol-
unteered for it, with the only criteria that we attempted to control being age/
length of work experience and sex. This meant that our participants were mostly
individuals who for some reason were interested in reflecting about the role of
emotions in their work. To the extent that an experience of social mobility might
make individuals more conscious and aware of – and reflexive about – their ac-
quisition and performance of pertinent norms of behaviour, it is therefore possi-
ble that persons from a working-class background were over-represented among
our participants.
2 According to data obtained from district courts, there were approximately 750
judges working at the Swedish district courts in 2016, while the proportion of
male judges decreased from 78% in 1992 to 48% in 2016. In 2016, there were ap-
proximately 950 prosecutors working in the country. Of them, the proportion of
men was 40%, having been 58% in 2000.
3 Organizational emotion
management

[Burn-out] is to large extent a matter of individual dispositions. [---] We, the

managers, speak a lot about “good enough”. Sure, there are lots of urgent
deadlines, and obviously as managers we check that things don’t take too
long time, so in that sense we don’t ease the pressure, but we also say “this is
not what you should be doing right now, now you should do this other thing
because that’s more important” and we also say “go home”, but it’s not as
easy for everyone to let go.
(Nadja, chief prosecutor, 50+)

There is a macho culture in the prosecution office entailing that you should
wade through [the horrors] unaffected.
(Göran, prosecutor, 35+)

The staff manager says that it’s difficult to get judges to speak about them-
selves or their emotions and feelings in the staff development meetings. The
elitist mentality of legal education inculcates a notion that you should be
tough and not break down under pressure, something that marks the judges
throughout their career. So you don’t notice if a judge is not feeling well, as
they keep walking around carrying their load until they crash.
(Fieldnotes, court)

W
e saw in the previous chapter that the group charisma of judg-
ing and prosecuting requires ‘submission to hardships’ proving
the individual’s worth as part of a ‘uniquely valuable’ group. The
quotes and excerpt above refer to some aspects of these hardships at dif-
ferent levels of the organization, at the prosecution office and the court.
Chief prosecutor Nadja asserts that withstanding the hardships is an indi-
vidual quality, continuing that the management at the prosecution office
have almost to force the employees to let go and go home. Prosecutor Göran
states that the macho culture of prosecution entails that one should “wade
through the horrors” unaffected. And a resignated staff manager at one
of the courts complain that having staff development meetings with judges
renders nothing; judges will not talk about themselves and they certainly
will not reveal any problems until they crash under the weight of them.

DOI: 10.4324/9781315306759-3
 Organizational emotion management 59
In this chapter, we discuss how organizational structures embed emotions
and emotion management techniques. This embedding is done by directly
addressing emotion at the structural level, as when fear is addressed by or-
ganizational security measures, or indirectly, as when increased workload
and time pressure contribute to increased emotional distance and detach-
ment. As we will see, the idea of the practice of law as unemotional has im-
plications for how courts and prosecution offices manage actual emotional
outcomes.
We will start with the obvious emotional process associated with or-
ganizations: time as an organizing principle operationalized through high
workloads, generating loss of time for the judges and lack of time for the
prosecutors. We then continue to examine the one emotion that is explic-
itly dealt with through organization, fear, via organizational security work.
This is to say that formal management of fear is mostly prevalent in relation
to security, generally dealt with but not felt. This brings us to the notion of
‘teflon culture’, in which structurally embedded presumptions entail that
emotions are not supposed to ‘stick’ to either judges or prosecutors. De-
briefing exists but is seldom used: being a professional implies an ability to
manage emotions, making the need for debriefing unprofessional. The end
of the chapter demonstrates how teflon culture leads to informal collegial
emotion management strategies, raising the question of individual coping
strategies when faced with particular emotionally challenging cases.

Time as organizing principle

When asked about the unpleasant aspects of their work, the most common
answer by both judges and prosecutors was high workload and stress (cf.
Roach Anleu and Mack, 2017). The answer reflects an ongoing development
of neo-liberal government policies and New Public Management (NPM)
approach that, through their reliance on technological development for in-
creased organizational control, output, and efficiency, lead to more adminis-
trative and self-monitoring work tasks for staffs in public service (Svensson,
2018). Digitalization has led to more standardized procedures and ways of
recording, archiving, and keeping track of different investigations and court
cases. It has also enabled the introduction of various instruments for meas-
uring work efficiency and turnover time for each investigation or case, with
higher expectancy on shorter turnover-times and a steadily shrinking man-
agerial tolerance for ‘waste of time’ and budget transgressions.
Digital ‘aids’ have also become part of the stressful dimension of work.
One example of this will be seen in Chapter 4 (p. 108), in which judge
­Margareta opens the trial, at last, but the video link to the accused fails to
work. The prosecutor’s understanding refers back to his own experience;
lack of synchronization between the digital platforms – which are also
highly securitized and encrypted – used by the courts, the prosecution of-
fices, and the police is a daily source of frustration for prosecutors. This
60 Organizational emotion management
technological addition to stress should be kept in mind as we turn to the
social and professional dimensions of time as an organizing principle.

Judges: lamenting the loss of time

Along with the NPM reforms, there have been quite a few associated attempts
to reorganize the Swedish court system since the turn of the millennium.
Smaller district courts – those employing 5–10 judges – have been merged into
larger ones, closing down some local courts. In consequence, judges today
handle more cases and, apparently, do that more efficiently. The impression
of judge Folke (60+) was that instead of the approximately 40 cases a year
he had when he was a young judge, he now handled 40 cases every month.
Did judges have way too much time before, then? Probably not, since time
emerges as an important work tool in the judge’s profession, emphasizing
the intellectual quality of the job: time to ponder on the juridical aspects of
cases, time to study related laws, and time to write judgments in a well-poised
manner. Increased workload thus implies loss of valuable time to think and
to elaborate on details in the cases. As described by retired chief judge Ruth:

Everything moves so fast in the courts today, too fast, so the judge’s
capacity to really get into [the case]…. Keeping budget balances is more
important than writing good judgments. I think it’s a pity, because law-
yers used to say that it’s so good when they get a written judgment with
properly argued reasons, because they can use those arguments when
talking to their client and deciding whether to appeal or not, helping the
client to understand why he was sentenced.
(Ruth, chief judge, 65+)

In this quote, Ruth looks back at her professional experience, comparing

the process of “getting into the case” in the past to how the focus today is
on keeping budget balances. Ironically, while speeding up turnover times,
this focus on efficiency has created a need for client-oriented policies such
as the “good treatment” policy discussed earlier in this book. There are
also ongoing projects for standardizing the style of judicial paperwork like
written judgments, to make these more intelligible to the public. Such con-
cerns, according to judge Ruth, used to be an integrated aspect of judges’
work when there was more time. In her interview, Ruth also spoke about
time required for taking a pure and honest interest in each and every indi-
vidual coming to the court, giving a “closer personal relationship” to each
case, as opposed to the trained empathy suggested by the present “good
treatment” policy.
While larger trials are of necessity allowed to take the time they need,
smaller trials running overtime may cause domino effects. The smaller tri-
als are often scheduled for an hour or two and they frequently begin one
right after the other without a pause between them. Normally, the same
 Organizational emotion management 61
judge and the same prosecutor conduct four to eight short trials a day. Given
the tight schedule, there is little room for improvisation, for which reason
these trials may cause emotive dissonance (Hochschild, 1983) between pride
in the principle of “good treatment” and pride in the principle of staying on
time (Roach Anleu and Mack, 2017). Even if the good treatment policy is
introduced in a period when the mechanic efficiency of the courts threatens
to jeopardize the public legitimacy of the rule of law, good treatment is not
really meant to require more time. The task to achieve the tricky balance of
a respectful, empathic treatment while remaining impartial and staying on
time, thus relies on the judges’ individual emotion management capabilities
(compare p. 43–44).
It is important to note that high workloads force legal professionals to
quickly let go of cases. Thereby legal professionals become implicitly oriented
towards emotional distance vis-à-vis their cases. As explained by judge Folke:

Especially now that everything is done so fast you don’t have time to
[feel], because as soon as you’re done with the mutilated body, someone
has committed a tax offence and you have to rule on that and then that
other thing is pushed aside. You see, if you have five trials in a day,
when you’re done with the last one you can’t remember the first without
checking your notes.
(Folke, judge, 60+)

As suggested in this quote, while memory and emotion are closely entwined,
a constant shift of focus prompts forgetting, and thus detachment. In other
words, the high workload can be considered an implicit organization-induced
emotion management tool to uphold some values inherent to the emotive-­
cognitive judicial frame, such as detachment and objectivity.

Prosecutors: constant lack of time

The prosecutors in this study did not lament any loss of time, but rather
the lack of time. Prosecutors do not work ‘with’ but rather ‘against’ time.
This becomes particularly evident when the suspect is in detention, which,
according to the law, is time limited. Prosecutors’ work tasks are diverse and
dependent on the police and the police’s effective collaboration. Prosecutors
handle up to 40 cases at the same time making time an adversary haunting
the prosecutor’s work, not a tool to enhance its intellectual quality. The dif-
ference between judges’ and prosecutors’ relationship to time is illustrated
by Monika, who had formerly worked as a prosecutor:

If you compare prosecutors to judges, work is not fast-paced for judges.

You can always take a break to contemplate things. You can’t do that
as a prosecutor when they call you in the middle of the night and need
a decision. So we have an entirely different leeway as judges, compared
62 Organizational emotion management
to prosecutors. [---] I actually felt that the court was like a protected
workshop when I first got here [laughs]. I somehow miss that life. Four
telephone calls going on at the same time, investigations here and direc-
tives there, and – I sometimes miss that.
(Monika, judge, 45+)

The quote highlights the fact that time pressure in prosecution is not experi-
enced merely as something negative. It can also be exciting, something that
one can even “miss” as a former prosecutor. As we have seen, prosecutors
often position themselves as more of action lovers than judges.
The intermediary position, the exposure to critique, and the extreme
speed and workload of prosecutors’ work situation contribute to a strong
team spirit and make prosecutors less prone than judges to be ashamed of
individual colleagues’ mistakes. Too many decisions have to be taken, on
the spot and without a minute to contemplate, entailing that no individual
prosecutor can feel safe beyond reproach. But the ability to take all these
quick decisions, knowing that some of them may indeed be mistakes or sim-
ply wrong, requires emotion management to keep anxiety and remorse at
bay. The effort to learn to trust the people that one depends on to be able
to work effectively as a prosecutor is captured by prosecutor Saga, who was
formerly a judge:

[As a prosecutor] you need to deal with many things going on around
you, all the time, and you must have the courage to make quick decisions
based on rather sparse information. You can’t ponder on things forever
and ever. And that’s one difference from being a judge. [---] You must
learn to trust people around you. I mean, primarily your colleagues and
the police whom you work with. I still sit and read investigation proto-
cols and double check everything, which means I am overloaded with
work. But you can’t work like that. I haven’t got rid of this need to stay
in control yet.
(Saga, prosecutor, 35+)

The organization of the prosecutors’ work encourages not only interde-

pendence and mutual trust, but also, as the above quote indicates, letting
go of discrete cases and investigations. The way their work is organized, en-
tailing high speed and high workload, thus becomes an implicit tool helping
prosecutors to balance commitment and detachment in their work.
Contrasting the judges, prosecutors regularly do night-call duty, which
means that they stay at work all night, answering phone calls from the police
and making immediate decisions about directives and means of coercion,
such as arrest warrants. Prosecutors and prosecution offices in one geo-
graphical region take turns in being on night-call duty, so the area covered
at night-time is much larger than during the daytime. An ordinary prosecu-
tor may have one to two night-call duties per month. On busy nights (e.g. on
 Organizational emotion management 63
weekends or holidays), the phone lines tend to get congested, with many
officers on hold needing an urgent decision in order to proceed with their
work. At night, the prosecutor on call gets both lonely and tired, with the
collegial buffer groups unavailable. Prosecutor Lara below tries to capture
the anxiety that may arise during those hours:

I don’t know if it’s a generally used notion, but here at this office we talk
about night-shift anxiety: it’s the feeling you get after you’re done with
your night shift that – I mean, it’s a joke, but still – “what the heck did I
just decide about? All these cases and these people that I spoke to…” [---]
It’s not just that it may turn out that you’ve done something wrong….
I mean, you learn early on that the one thing you must not get wrong is
the coercive measures, when we use that power over people, of course.
But otherwise, I think, you get a lot of understanding when you’re on
night duty; your colleagues know what it’s like to be sitting there.
(Lara, prosecutor, 30+)

The anxiety at the amount of decisions needing to be made and the speed
at which they are taken during night shifts are balanced with Lara’s sense
of assurance and comfort in knowing that there are colleagues who under-
stand what it is like. When shadowed during a night shift, Lara lingered
about at the office in the morning, speaking to colleagues about the night
and orally communicating her decisions to them. This was kindly received
by the colleagues, who, however, also commented that if they were Lara,
they would rush out of office at eight o’clock sharp to go home and get
some sleep. On this, Lara commented that she had a habit of staying on for
a little longer so as to be able to reflect on her night and get some positive
feedback for her decisions; for her, this was a way to manage her “night-
shift anxiety”.
Whether implicit or not, time pressure as an organizational tool to man-
age commitment and detachment was ambivalent for both judges and pros-
ecutors because it gave rise to insecurity. For judges, this insecurity was
about demeanour and reflection, and respect for the people coming to court
no matter the pettiness of the crime. For prosecutors, insecurity was pri-
marily associated with the speedy decisions, and the risk of getting them
wrong. The dimension of “getting into the case” mentioned by the judges,
of getting a feel for the case at hand, was also important to prosecutors,
but this happened as a more or less unavoidable part of the investigations.
They struggled, rather, to keep emotional distance to the reality of suffer-
ing, which is present in their work as purifiers (see, e.g., Chapter 2).
In the next section, we will look at the organizational approaches to secu-
rity and the way that organizational security measures relate to fear. Such
measures evoke, dampen, and direct fear at the workplace and thus also
function as implicit organizational emotion management shaping the differ-
ent emotional profiles of judges and prosecutors.
64 Organizational emotion management
Fear and organizational security work
Fear is an emotion that alerts the subject to danger. When danger is a possi-
bility in the future, fear serves to fuel and orient action to avert the danger
(Barbalet, 1998). In this sense, fear propels a cognitive assessment of one’s
potential vulnerabilities and can be a background as well as a foreground
emotion (Kleres and Wettergren, 2017). Yet, taking measures to avoid dan-
gers may also create or worsen fear, by increasing the focus on risk. In this
way, fear is both silenced and evoked by the organization, through organi-
zational attention to security.
In 2012, when we first began frequenting the courts, we were impressed by
the fact that we could simply walk in and take a seat at any ongoing trial, for as
long as it suited us. This openness spoke of an almost naïve emotional regime
of downwards trust. As related in Chapter 1, Sweden has high generalized trust
in state institutions (Rothstein and Stolle, 2008), and this generalized trust pre-
supposes mutuality, meaning that institutional transparency and openness sig-
nal the trust of power in its citizens. This is important to keep in mind when we
discuss the courts’ apparent reluctance to think in terms of security.

Court fears
As we later found out, there had been ongoing discussions and concerns
about security following incidents in Swedish courts in the 2000s. In 2012,

Figure 3.1 C
 ourt house of Lund, Sweden. Photo: Stina Bergman Blix.
 Organizational emotion management 65
starting with a government initiative that secured money to improve the
courts’ security, larger courts began to introduce rigorous security checks
at public entrances: security guards, and bag and body scanners. It is worth
mentioning that while district courts tested and, in some cases, have sub-
sequently implemented security checks at the public entrances, appellate
courts have been lagging behind, remaining without any visible security
measures. This is also the case with smaller district courts, as evidenced
by our data:

There is one security guard but he is out sick again. There is thus no
security control. The windows of the courtroom at the ground level that
reach down close to the ground have ordinary two-glass panes. In the
morning, a court clerk opens one of them wide open to let in some fresh
air and then she leaves the room.
(Fieldnotes, court)

The stark contrast here to the security concerns we observed at larger

courts led us to highlight the situation in an interview with one of the
judges, ­Jessica (40+), who worked in the court described. Jessica admitted
that the security situation was bad, but then went on to laugh the issue
off, saying that if someone would jump into the courtroom through an
open window, she would just “jump out on the other side”. With the se-
curity concerns at the larger courts in mind, the researcher pointed out
that “anyone could fire a gun right through the window”, at which Jessica
responded:

[Mockingly] I never thought of that; now I’ll be afraid the rest of my

time here. [Serious tone:] No, I never, ever thought of that…. I guess
these are things you think about before you get used to them. But of
course our security here is bad; it is, that’s true.
(Jessica, associate judge, 40+)

Jessica’s reflections tell of a rather habituated sense of security that might

have permeated the courts before 2012, in line with judges’ habituated
self-assured autonomy and distance from the messy reality, as if reality
could never really touch them. To claim not feeling threatened was rather
common among the interviewed judges. On the other hand, when security
was improved, they generally acclaimed it, in particular as they learnt of
the amount of knifes actually found in the security checks. As jokingly re-
marked by Jessica, above, when risks are pointed out, fear emerges. Secu-
rity measures and fear as mutually reinforcing each other may explain some
of the lack of emotional backup for considering security, leading to some
courts lagging behind in this regard (Roeser, 2012).
66 Organizational emotion management
We suggest that this sense of security is premised on a mutual trust regime,
which, in turn, is premised on the idea of a “just society” (Clark, 1997) and, im-
plicitly, on the idea of perfect justice. Judge Jessica’s reactions to the questions
about security above may seem naïve, but the fact is that the emotive-cognitive
judicial frame is not easily amenable to the consideration of security issues, in
terms of “feeling the fear of risk”. The self-image of representing the corner-
stone of democracy contains within itself the institutionally self-assured no-
tion that people naturally respect justice. The emotionally anchored belief that
judges are autonomous servants of objective law, equal to all, is incompatible
with any fear of resentment or retaliation. In other words, fear would signal
doubt in the legal system. Instead, institutional display of confidence is war-
ranted, and for judges that display is part of their performance of autonomy.
The organization of courts is geared towards keeping judges away from
contact with the parties and the public at large (by, e.g., having separate en-
trances for them), even if this, too, may differ between small and big courts. In
a staff meeting in one of the big courts, judges complained that they had too
little contact with the parties, to which the administrative chief responded
by telling that the administration wanted to let as few calls as possible to
get through to the judges: “To allow callers to get through to a judge would
count as a failure” (Fieldnotes, court). At the small courts, administrative
staff is smaller and work tasks tend to be less specialized. This led its chief
judge to complain that people called too often, reflecting a decreasing re-
spect of the courts as compared to the past: “25 years ago it would have been
unthinkable to call a chief judge to complain, but now people … get in touch
far more often”. Interestingly, at the small courts it was more common for
judges to move about in the public areas of the courthouse, contributing to a
general sense of closeness to the public that was lacking in the bigger courts.
Together with fewer security measures, this may tell of reluctance to feel fear,
as closeness may be a valued aspect of legitimacy in non-urban areas.
Fear is, furthermore, a strongly private connoted feeling (see below),
which means that it is an emotion that may be very deeply backgrounded
in the judges’ professional emotional profile. While there were many stories
in our material about situations in the courtroom that had warranted some
kind of security measures – like calling in security guards or even pressing
the alarm button – judges tended to describe these situations more in terms
of their “responsibility for everyone in the courtroom” than in terms of fear
for their own safety. In the excerpt below, judge Margareta discusses such a
situation with two other judges during a lunch break:

Judge Margareta describes a trial she once had in which the parties
were so angry at each other that, to be able to drown out their voices
and break the argument, she had to shout louder than they. She wasn’t
angry, but she shouted angrily to interrupt them. She repeats this and it
appears to have been a very uncomfortable situation to her. She says that
in that kind of cases she feels the enormous responsibility that comes
 Organizational emotion management 67
with being a judge: “I was responsible for the clerk, for the lay judges,
for everyone’s safety!” She had pushed the alarm button but that doesn’t
help much since it takes time before the security arrives so she had to
do something to stop them shouting. […] All three judges agree that it is
a good thing with the security control now in place at the courthouse.
(Fieldnotes, court)

In this excerpt, the interpretation that Margareta’s story is a story about

an apprehension of fear is validated by the mentioning of safety, alarm but-
tons, and other security measures in the courtroom. Margareta, however,
emphasizes that her apprehension of fear concerned her responsibility for
others. We call this displacement of fear to others, or to a fear for others,
‘othering’. Othering works to legitimize talk about fearful situations with-
out directly admitting one’s own fear; it is a sort of ‘ventriloquism’, similar
to the way that researchers in academia have been found to talk about their
professional achievements in a collegial environment that strongly discour-
ages such talk (Bloch, 2016). Nevertheless, as a story about fear, Margare-
ta’s story contradicts the display of the self-assured security of the judge’s
position. The same lunch break also involved a fear story by another judge:

Judge Johanna enters the lunchroom, her face pale. She says she just
came from a situation that made her all shaky. It was a civil case hearing
in which one of the parties was a war refugee with scars all over his face.
Johanna asked several times about his plea to the charges and then he
began telling his whole story, whereupon she interrupted him and said:
“You may tell your story later, but now I just want to hear your plea.”
And at that moment she felt that she “lost him”. He became upset, and
she felt that he might attack her. She became afraid, but it was only
afterwards that she understood how afraid she had been. When leaving
the courtroom, she was shaking.
(Fieldnotes, court)

In this excerpt, Johanna joins the group, coming from a hearing where she her-
self had experienced fear whose bodily effects are still present – she is shaky
and pale. As the discussion continued, however, she shifted from expressing
fear of the actual threat to a fear of not living up to high standards. Johanna’s
tangible fear opened up for situational intimacy between the three judges sit-
ting in the lunchroom, and Johanna eventually turned her focus on her role in
the incident, saying that “she knows exactly what she did wrong, but it is hard
to talk with colleagues about it as [judges] don’t want to admit mistakes”.
Her mistake was to push the defendant to tell his plea to the charges. At this,
judge Margareta remarked that she herself tries to be careful not to push the
defendant, and instead let go of the issue, and then ask again later.
As we can see, Johanna’s fear story is remodelled into a story about inad-
equacy revealing the underlying assumption that a competent professional
68 Organizational emotion management
demeanour could have prevented the situation. The remodelling that we see
exemplified here was aimed to maintain the autonomy and distance of judges:
a judge should be able to navigate around becoming emotionally involved in
interactions with people in court. This ability is reflected in Margareta’s tell-
ing about her strategy to let the person be and then return later to the subject.
While there is a similar reluctance to cede any ground to fear among pros-
ecutors, their actual physical situation looks quite different. Judges are more
or less physically separated from the public, while prosecutors normally en-
ter the courtroom through the same door as the defendant, the victim, the
witnesses, and the general public. In all courts, however, prosecutors have a
separate space for them to withdraw into during breaks, but, as a rule, to get
there they need to walk through the public area. As they are more exposed,
it is perhaps not surprising that prosecutors are much more aware of risks
when moving about in court.

Prosecution fears
There are various ways for prosecutors to approach the lay people in court,
but a common strategy encouraged by the prosecution authority is to greet
and shake hands with not only the victim but also the defendant if the latter
is present in the waiting hall before the trial begins. This is generally consid-
ered a good way to signal to the defendant that the prosecution is not ‘per-
sonal’. Yet, it remains a fact that the prosecutors’ free movement among the
parties in the court can also be a risk. There were several stories of glances,
shouts, and insults received from lay people. In the following quote, Dagur
recalls being once provoked by “street kids”:

Prosecutor Dagur: I’ve had such … small incidents…. I was never threat-
ened or anything, but I do remember a youth criminal case once where
there were these cocky kids from the suburb of [suburb name].
Researcher: In the audience?
Dagur: Yes, and I was hard on their friends [the defendants]. I was pretty
hard, and [laughs:] since I had twisted my ankle the previous day, I was
also limping around pretty badly. […] So I’m limping, right, and these
guys of course see that. And they sit there … you know, laughing a bit
and messing around and looking at me in a funny way. And then, on our
way out they – because I don’t want to yield and let them go first, I go,
like, “I’m walking here and I’m not going to back down and give way to
them” – you know. So they group up around me on our way out, and I
feel how someone [stamps down hard on my foot].
Researcher: Ouch!
Dagur: And right on that injured foot of mine [laughs]! And they laugh and
I can’t see who it is, but I don’t make a sound, I just keep walking. […] I
felt quite small there, a bit vulnerable.
(Dagur, prosecutor, 35+)
 Organizational emotion management 69
In this quote, we see Dagur, while assuring that he never felt directly threatened,
having no difficulty recounting a story about how his authority was challenged
and he himself literally hurt by “kids”. He admits having felt “small and vul-
nerable” in the situation, but nevertheless, looking back at the event, he rather
represents it as a funny story. We also see the institutional confidence men-
tioned earlier in the discussion of judges, that is, the refusal to cede any ground
to fears or become influenced by threats, as a representative of the rule of law
(“I don’t want to yield”). While judges can do this in their relatively protected
position behind the bar, prosecutors must maintain their facade even when lit-
erally caught in a situation of potential danger. A similar account was given by
prosecutor Klara (35+), who had been threatened by an accused person:

Prosecutor Klara says that in a trial she was involved in, a police witness
was threatened by the accused, so he asked for police escort when leav-
ing the court. As the accused was angry with her, too, she just did not go
to her usual place to pick up lunch. “Imagine that: the police officer was
so affected that he asked for protection!” She seems to find that strange.
She says the threats were rather vague, both the one directed at her and
the one aimed at the police witness, but the accused is known to carry
weapons and to have a short fuse. But “you can adapt, right – like now
when I knew he would be going my way, so I chose to pick up lunch in
a different place. Before, I used to insist on going wherever I wanted,
but now that I have children I don’t do that anymore”. She says that the
accused anyhow doesn’t know that she changed plans because of him.
(Fieldnotes, prosecution office)

In this excerpt, we see how Klara appears to be puzzled by the fear shown by
the police officer. She rejects the feeling on her own part through othering;
her “adaptation” is warranted because of her children. She also defends her
adaption by saying that the accused does not know that she avoided him
because of his threats. Along the same lines, also prosecutor Dagur above
shifted away from reasoning about his personal vulnerability in the situa-
tion described, to the question of respect for the legal system, or “society”,
as a whole. He thus stepped up to defend his institution and let out emotions
of indignation and worry on behalf of society at large – a form of othering
turning personal concerns into professional worries:

It’s a bit worrying this disrespect. […] You need to have some respect for
society, in a way. […] They crossed the line! I’m an adult and they’re just
kids. I would have never, ever dared to do that myself at that age. And it
shows that they lack boundaries, which is dangerous. If you can do this
sort of thing, you’re capable of lots of other things as well. And these
group dynamics: they sit there and incite one another. That’s damn un-
pleasant. Not to me personally, but more as a social phenomenon.
(Dagur, prosecutor, 35+)
70 Organizational emotion management
This shift from personal (private) to professional fear indicates how the emo-
tion work that goes into balancing the line between personal fear and the pro-
fessional self-assured appearance is more foregrounded for prosecutors than
for judges. Professional security signals belief in the general legitimacy of the
legal system, while fear would cast doubt on the authority of that system. As
representatives of the state in court, prosecutors frequently find themselves
targets of defendants’ resentment, and thus they need to actively negotiate
the emotions associated with their position and its vulnerability. The ques-
tion about fear is therefore not as remote to them as it may be to judges.
The generally increased attention to the risks involved in prosecutors’
work comes in the aftermath of incidents occurring in Sweden over the past
decade, incidents in which prosecutors have been severely threatened. While
only a few of these incidents have been given media coverage, they are com-
mon enough to be represented in our material. In the quote below, chief pros-
ecutor Agata gives a long account of fear. It starts out as a general reflection:

I have felt fear sometimes when I have been threatened; then I’ve been
scared. […] But I’ve felt that it was difficult, like – in the actual moment
it was hard to connect to fear, but then afterwards, when thinking about
it, what I felt was indeed fear, fear of – I mean fear in the sense that you
can’t sleep at night, you notice every sound, of a newspaper dropping
into the mailbox, and you wake up. […] Fear of what? For your own
safety, but above all for your kids’ safety.
(Agata, chief prosecutor, 45+)

Here Agata speaks of backgrounded fear: she realizes that it is fear she feels
when thinking back on past incidents, trying to figure out the reason for her
waking up to, for instance, the sound of the morning paper being delivered.
The assessment of fear comes afterwards “when thinking about it”. Subse-
quently continuing her account, Agata clarifies that “it has happened maybe
four or five times that I was actually scared”, and gives a vivid example of
foreground fear. In the quote below, she also describes the security measures
surrounding high-risk cases: there is always at least two prosecutors in such
cases, and, in Agata’s example, they were assigned bodyguards and had to
sleep in a hotel:

The police evaluate the threat and the potential for violence, but of
course sometimes you feel that you look over your shoulder a lot. And
at one particular time I, in fact, felt that kind of fear. We were two pros-
ecutors in that trial, and there was this security information that the
two of us would be shot, so we had moved away from home and lived in
a hotel, with bodyguards driving us back and forth. […] That’s how we
then went to and from the court, because we were in the middle of this
trial, and then this person came in…. It was in a high-security court-
room, and so there was security control as well, but this person…. I was
 Organizational emotion management 71
the second prosecutor so I was just watching. Then suddenly this person
in the audience raises something in the air, but I can’t see what it is, I
can only see that it’s an object of some kind…. I got even physically
scared, the way you get when you get into these dangerous traffic situ-
ations. [---] Well, you knew that there was security control but…. I was
so damn scared…. That was really difficult and my son was very small
then. Makes you really think about your career choice.
(Agata, chief prosecutor, 45+)

This quote represents an account where fear is foregrounded and becomes

disruptive of one’s professional performance. Agata mitigates her personal ex-
perience of acute fear – panic – by generalizing her argument in places (“some-
times you feel” that you look over your shoulder, “you really think about your
career choice”), but she also explores her “feeling the fear” by visualizing how
it knocked her off balance, and, in particular, how irrational her fear was,
since there really could have been no way to get a gun through security.
We see that the acute feeling of fear surfaces against the context of the
security information that Agata and her colleague would be shot, and of
the action taken to prevent it (bodyguards, sleeping in a hotel). Aware-
ness of the security surrounding the trial did not help when Agata thought
the shooting was about to take place. Fear, in the form of precaution and
heightened cognitive awareness, enables assessment of risk and can thus
lead to action taken to deal with the sources of fear (Barbalet, 1998), but
the increased alertness also foregrounds fear and allows it to interfere with
one’s work; it was fear that made Agata “see something” not the other way
around. In the everyday work of prosecutors, fear needs therefore to be kept
backgrounded if one is to perform professionally. One could, moreover, say
that this backgrounding takes place in spite of, rather than thanks to, all the
security measures taken to ensure prosecutors’ safety.
As seen in Agata’s case above, organizational security is prepared if a true
threat emerges. However, it is also common to shift prosecutors, and even
prosecuting offices, if minor threats occur. Prosecutors are, furthermore,
continuously informed by the security departments about general risk levels
and about how to adjust their daily lives and take precautions even when
there is no concrete threat against them and even when the investigations and
trials they work on are not high risk. They are advised to avoid habitual roads
to and from work, to keep a very low profile on the Internet – preferably not
having things like a Facebook or a Twitter account – to never post pictures or
information about their children online, and to always hide their addresses
and telephone numbers (removing them from online telephone books).
A recurrent pattern among the prosecutors in our study in relation to
these general security measures was that they followed some pieces of advice
given to them while shrugging off others. Prosecutor Jakob, for instance,
who worked with severe crimes, had a secret phone number and “had no
interest in Facebook anyway”. Yet, as he described:
72 Organizational emotion management
You should keep a lock on your mailbox … and you should check the
tires before you get into the car…. No, come on! [laughs] I refuse! And
you’re not supposed to bike the same way to work [laughs] everyday.
Now, I don’t bike to and from work the exact same hour every day, right,
but I think if someone wants to harm me, they’ll get to me anyway,
right? It’s not like you can do something about it.
(Jakob, prosecutor, 50+)

Jakob in this quote speaks of how the advice of the security department
forces him to negotiate his emotional response (fear) to the organization’s
heightened risk awareness. He does not yield to fear and yet he does (decid-
ing not to bike to or from work at the same hour every day), and in the end,
he decides to simply accept the risk, rather than to live in fear.
Emotive-cognitively, prosecutors positioned themselves moderately
in relation to the precautionary measures they were advised to take, be-
cause this positioning itself was about fear management: fearful action
may evoke fear. This fear management kept their professional dignity and
belief in a just world reasonably stable, yet they did not embrace the stud-
ied naivety that judges sometimes show. As mediators, translators, and
purifiers, prosecutors have good reasons to feel exposed to risk. In the
courts, prosecutors’ risk awareness clashes with that of the judges, as seen
particularly in (small) courts where security arrangements remain all but
non-existing. Prosecutor Wenche (35+) compared the small and the big
courts she used to work at, wishing that the small court would develop
its sense of security, but concluding that “it’s not going to happen until
someone gets stabbed or something, so it feels. […] They are rather naive
about security”.
The way new district court houses are built mirrors an increased concern
for security also in the courts, however. Typically, they are built so that the
justices never have to enter the public area, with more secluded rooms for
prosecutors, and high-security entrances for defendants in custody. New
courts, furthermore, may have at least one high-security courtroom that
keeps the audience seated behind a bulletproof glass. Interestingly, while
this arrangement may improve the feeling of safety of all those in the court-
room, it makes the spectators feel potentially excluded and exposed to the
very threat the court wishes to exclude. Contrasting the openness when we
initialized our court project, the public now finds themselves subjected to
security checks by uniformed guards when entering the courts. By position-
ing citizens as ‘suspects’ until it is proven that they carry nothing dangerous,
downwards trust is becoming conditional.
Security alertness is thus a double-edged sword: it both orientates focus
towards potential threats and thereby foregrounds fear and emotion man-
agement to contain fear. Yet, it is seen as necessary in a world where it no
longer seems wise to take the existence of ‘respect’ for justice and mutual
trust between the legal system and the citizens for granted. Denial of fear
 Organizational emotion management 73
is a way to assert legitimate authority and it is implicit in the self-image of
objective law. When the organization moves in to increase security, it inevi-
tably weakens this institutional self-confidence.

Teflon culture: emotion management as self-discipline

Working hard, working long hours, and not complaining or being self-­
complacent are part of a self-disciplining culture that we have labelled ‘teflon
culture’. Under the influence of this culture, legal professionals are expected
to deal with hardships in their work and, in particular, with hardships as-
sociated with horrific cases, as if the emotional aspects of these hardships
would just bounce off one’s professional (teflon) shield. Participants in our
study commonly brought up the fact that working in courts, one becomes
exposed to great human misery and gruesome pictures; “it’s something you
need to be able to deal with”. They suggested that some individuals were
born with the ability to manage it, while others were not: either you were a
non-stick person or you were not fit for this line of work. The teflon culture,
according to the participants, permeated both the courts and the prosecu-
tion offices, but played out somewhat differently in the two contexts. We will
start by looking at the judges.

Teflon culture in court

As noted in earlier chapters, judges must measure up to high demands on
being overachievers: “Everyone should perform 110% all the time and be
in top shape all the time, but that’s not the way it is, because we’re human”
(Eva, associate judge, 30+). While it is not possible to always be in top shape,
the continuous evaluations during training and the importance of display-
ing confidence and autonomy turn the ‘human’ features of feeling tired, sad,
vulnerable, and so on into weakness, and thus into something associated
with not being ‘professional’. A professional, it is posited, should be able
to keep emotional distance to others’ emotions and to those of one’s own.
When asking chief judges about whether the clerks were somehow prepared
for gruesome trials or whether they could avoid participating in certain
types of trials like those involving a rape or a murder, it was clearly some-
thing that had not crossed the judges’ minds before:

Well, the issue has never been raised to me, but in a way [sighs] it comes
with the territory: if you’re not able to handle all kinds of trials, why
choose this profession, right? If someone said, “I’ve got some experi-
ences of [rape] myself, and I don’t want these kinds of cases as they bring
so many memories and emotions”, then I would of course respect that,
but, generally, judges cannot choose only to do civil cases or business
law, so….
(Arni, chief judge, 55+)
74 Organizational emotion management
Even if Arni says that he would accept personal experiences of one’s own as
an excuse, it is clear from his reasoning that he would not recommend such
a person for the judge’s profession. Although it seems perfectly reasonable
that all judges should be able to work with all kinds of cases, the implication
is that “taking all kinds of trials” should not be emotionally difficult.
As with any workplace in Sweden, the courts provide their employees
formal access to free occupational healthcare services including free ses-
sions with a therapist. According to our interviewees, this possibility, how-
ever, was never made use of; even the idea of doing so was so remote that
some interviewees did not even mention the possibility or did not know
how to make use of this right. Occupational healthcare relies on individual
initiative, and taking such an initiative would make colleagues suspect one
of suffering burnout, the symptom of one’s ultimate failure to endure one’s
workload and withstand pressure in general. Participation in formal de-
briefings arranged upon the initiative of one’s organizational leadership –
something that had not been done in any of the courts we studied – would,
apparently, also give rise to such suspicions. In one of the few cases where
debriefing had been arranged for by a judge following a particularly tax-
ing court case, the judge found that the lay judges had gossiped about her.
Resenting the gossip, the judge described the long hours of listening to
different victims’ descriptions of the same torture-like incidents over and
over again:

JUDGE Monika: There was this lay judge going around saying that I had
asked for debriefing. But, I mean, I did that due to this trial we had that
lasted for two weeks with eight victims telling basically the exact same
story over and over again. You got like brainwashed by them. So I asked
the staff administrator [about debriefing]….
Researcher: Right. That’s the person you should turn to?
Monika: Well, I turned to anyhow; I have no idea, I guess she can talk to
[the chief judge] later. But, I mean, the debriefing was on behalf of the
lay judges and the court clerk. I mean, as a judge [sarcastic tone] you’re
not supposed to have any feelings.
Researcher: But you’re human just like them.
Monika: Yes, but that’s the culture.
Researcher: Yes … but would you be able to speak to someone?
Monika: I don’t know.
Researcher: You arranged debriefing only for them?
Monika: Yes.
Researcher: OK. And you yourself never spoke to anyone?
Monika: No.
Researcher: If you’d want to, is there any sort of debriefing….
Monika: No.
Researcher: Because, I mean, as you said, you’ve had murders and child
pornography and … do you talk about it?
 Organizational emotion management 75
Monika: Yes, you talk a lot, with your colleagues, you do. And I’ve said
many times during coffee breaks that this particular case took a heavy
toll on me. It was, I did say that, probably the nastiest case I’ve had.
(Monika, judge, 45+)

The quote is telling in the way it both rejects and reproduces the teflon
culture. It begins with expressing a sense of discomfort about lay judges’
speaking of her, explaining that she raised the issue of debriefing not for her
own sake, but for the lay judges and the court clerk at the trial in question.
Monika’s description here represents a variation of the technique of other-
ing, of speaking up on someone else’s behalf. She then admits not knowing
whom to turn to, because she has never asked for debriefing before. Then
follows a sarcastic rejection of her own presumed need to talk, “as a judge
you’re not supposed to have any feelings”. She does not know if she even
could talk with someone even if she wanted to, and the short answer she
gives reveals her unfamiliarity with talking about these issues. At the end
of the quote, she, however, tells that she did talk to her colleagues, indeed
stating that the particular case in question was the nastiest she had ever
had. Her actual ‘talk’ with her colleagues is nevertheless presented as mere
chatter during a coffee break, an example of the collegial emotion manage-
ment that can be labelled ‘ventriloquism’ (see Bloch, 2016). We will return
to this subject later. In summary, while Monika partly distances herself
from the ideal of the emotionless judge, she still subscribes to it as a profes-
sional requirement.

Teflon culture at the prosecution office

Also prosecutors subscribed to the ideal of emotional distance, but, as de-
scribed earlier, their required commitment rather puts the emphasis on the
ability to let go. The predicament of continuously needing to put up with cri-
tique and anger from several directions, together with the relative closeness to
the lay people involved in the cases, requires an ability not to let expressions
of strong emotions get under one’s skin. Nevertheless, encountering angry
victims when closing down (or even prosecuting) cases also raises the prosecu-
tors’ own moral standards. If they, for instance, ask people to make a witness
statement even if they are afraid, the prosecutors themselves need to live up to
the same principles. The prosecutor in the following quote had been threat-
ened, but when her boss asked her about the upcoming trial, she declined all
assistance offered to her. When her boss then came up with the idea that she
could participate in the trial via telephone, her first reaction was shame:

I felt so ashamed for feeling such a relief. I mean, I argue [with victims
and witnesses] all the time, saying “you have to turn up, because it’s
really important”. In the end, you do the “what kind of society do you
want to live in” appeal; “should we let the bad guys” and so forth. You
76 Organizational emotion management
know, these high flying ideals. And I felt ashamed for feeling so damn
relieved about my not needing to then go myself.
(Hildur, prosecutor, 45+)

As we can see from Hildur’s account above, her ability not to let her fear
stick, even when she failed this time, was linked to living up to the moral
expectation of preserving the legal system in practice. If judges’ adherence
to the teflon culture originates in the intellectual ideal of being overachiev-
ers, prosecutors’ more practice-oriented ideal has to do with living up to the
high moral standards of the system that they spend their days defending.
Their closeness to the messy reality of crime and criminal narratives, com-
bined with the objectivity demand on them, can make prosecutors uncer-
tain of their moral right to feel affected by the tragedies they face in court.
Prosecutor Lisa (25+) who had a case of repeated domestic abuse of a
woman, involving also children caught in the middle, confessed feeling guilty
for emotionally taking sides, empathically “tuning in” with the victim: “After
sitting with this case for three days, it breaks my heart a little. I guess I’m not
supposed to feel that, but I do anyway” (Fieldnotes, prosecution office). The
prosecutor felt this way even as she represented the accusing party in court.
The need to continuously heed evidence in both directions makes empathic
involvement with the victim a tricky business: if, during the trial, evidence
emerges that is in the defence’s favour, the prosecutor needs to take it into
account and thus be prepared to question the victim as to the account she or
he has provided, in effect questioning also the prosecutor’s own feelings of
compassion with the victim. Feeling with any layperson can jeopardize an
objective and professional practice (see also Bandes, 2006). Confessions of
feeling with a victim or a case thus often turned up only when we talked to
prosecutors alone, without any of their colleagues present.
Given their intermediary position, it might be that prosecutors are more
strongly than judges subjected to the requirements of the teflon culture. But
this fact also makes them more reflexive regarding how they manage their
emotions when involved in a difficult case. They are also more open to the
possibility of formal debriefing. In their work, prosecutors meet other pro-
fessionals, such as social workers, for whom debriefing has become a stand-
ard procedure. Prosecutor Henrik below pinpoints the in-between position
of prosecutors and the difference regarding their view on emotion manage-
ment as compared to social workers:

In my view, it’s really strange that debriefing is not part of our culture
in any way. Two different cultures meet here […] and ours is a different
world where you are expected to handle your own emotions. When you
work with social workers, it’s absolutely natural to have debriefings, to
not have that would be like “What! This workplace is sick, something
must be wrong with the management” – right?
(Henrik, prosecutor, 45+)
 Organizational emotion management 77
The judges in our data never compared their work to that of other profes-
sions, while the prosecutors who brought up the importance of emotional
reflection did. The same way as the judges, the prosecutors usually used
othering to exemplify the difficulties in managing emotional hardships:

At the office where I worked before it was normal that people at least
sometimes sat in their offices crying. […] In particular people who
worked with emotionally demanding cases, like people with children
investigating child abuse cases as if these cases came on an assembly
line. There is a macho culture in the prosecution office entailing that
you should wade through [the horrors] unaffected. I’ve never been in
that situation myself … and I’ve never been in a situation where I was
sitting in my room, crying, I don’t think I am that type of a person.
(Göran, prosecutor, 35+)

As we see in the excerpt, the mixture of a sometimes unbearably stressful

workload and emotionally demanding cases is said to cause breakdowns
among prosecutors. Göran’s description nevertheless represents a variation
of the technique of othering that we also saw in judge Monika’s case above.
Prosecutors who themselves are parents who investigate child abuse as if they
came on an ‘assembly line’ are susceptible to emotional breakdowns, imply-
ing that cases can be demanding due to the prosecutors’ own private circum-
stances, not due to the cases’ being emotionally demanding in themselves.
In the last part of the quote, we see rejection of this ‘macho culture’, yet the
teflon culture is also reproduced the same way as in the case of judge Monika
earlier; it is personal qualities that make the difference between those who
break down and those who do not (Göran is “not that type of a person”).
Nevertheless, prosecution offices have come further in their organiza-
tional preparation for emotional ventilation. In principle, all prosecution
offices have someone in the staff who is trained in debriefing. These trained
persons, however, do not conduct debriefing at their own office but are only
called to other offices to do so. This way of organizing debriefing is to avoid
collegial conflicts, but it also implies that the trained debriefers do not nec-
essarily acknowledge the need for debriefing at their own office. While the
teflon culture can be articulated and debated in various ways in the prosecu-
tion offices, the culture’s structural orientation towards individualized emo-
tion management is reproduced by silencing. As prosecutor August said:

The prosecution authority has got debriefers, but they’re not used and
they’re entirely invisible; no one ever asked me, “Do you need to talk
about this?” […] And I was wondering if it’s me who doesn’t dare to
show that I’m affected, but I contest that; I’ve raised the issue that I feel
it’s difficult now. I’ve got nothing in response though. So I wish it could
saturate the prosecutors’ training more so it wouldn’t scare young pros-
ecutors away if they feel bad, instead showing what to do with it when
78 Organizational emotion management
you do feel bad and how to prevent such situations from developing in
the first place. But there’s no such change, as far as I can see.
(August, prosecutor, 35+)

As long as speaking up is left to the individuals themselves, the risk of reveal-

ing one-self as potentially unfit for the job remains. If and when the silence
is broken, it may be disguised by othering. In August’s statement above, we
see how he admits being “affected” himself, but then calls attention to the
needs of “young prosecutors”, thereby trying to shift the focus from himself
to another level of analysis. Yet it appeared from our interviews that it is in
the nature of the prosecutors’ work – and not due to personal incapacity – to
wear down those doing it. It is thus a reasonable conclusion that it is the or-
ganization’s responsibility to prevent such wearing down from happening. In
our interviews with managerial-level prosecutors, some indeed articulated
the importance of organized fora for ventilation and reflection. However,
even the managers then found themselves confronting the teflon culture, as
described by Nadja:

We have arranged debriefing for those working on big, taxing cases.

Twice I’ve told prosecutors that “Now, let’s book an appointment for
you”, with both of them responding, “No, I don’t need it”. But I insisted,
saying that “You can tell me that afterwards, and you’ll only have to go
once”. I think that it’s hard to determine your need for something like
that yourself, because you’re in the middle of it. […] I don’t think that you
realise when you’ve reached a level that’s beyond what you’re expected to
manage. After those kinds of cases, you can feel completely empty.
(Nadja, chief prosecutor, 50+)

Nadja has had a lot of experience of tough cases herself and knows what it
is like to “feel completely empty”. In this quote, she describes how she alle-
viated the responsibility on the individual prosecutor to take the initiative
to talk, but meets resistance (“I don’t need it”). The management can imple-
ment strategies for promoting reflection, but the teflon culture is deeply built
into the emotive-cognitive judicial frame’s construction of professionalism.
As we have seen, the teflon culture in many ways prevents reflection about
emotions and emotion management strategies. How do judges and prose-
cutors, then, reflect about and manage emotional strain? Starting with the
judges, we will see how emotion management as an individual responsibility
goes hand in hand with the judges’ quest for autonomy.

Individualized and collegial emotion management

When asked about how they managed emotional strain, a common response
by the judges in this study was to refer to their own responsibility. As de-
scribed in the section on fear, if a potentially dangerous situation occurs
 Organizational emotion management 79
in the courtroom, judges need to make sure that others are not hurt. This
form of othering can be efficient in the moment, but also accentuates judges’
standing alone. Managing own emotions becomes an individual responsi-
bility: “Judges are individuals and each one has to handle these situations in
line with one’s own personality” (Kerstin, judge, 60+). Kerstin emphasizes
that as individuals, judges need to manage their emotions in a way they
themselves best see fit. Individualizing emotion management can also be
understood as inherent to the specific requirements of being a judge:

Independence is fundamental. There are these projects run by the Na-

tional Courts Administration. We’re supposed to participate in supple-
mentary training, talking about soft skills, and that’s of course very
good, but there’s one problem. We’re supposed to meet and talk about
difficult cases and then one can suspect that there are colleagues who’ll
say, “Is that how you handled it? I’d have done it this way instead”. And
that can undermine something and – I don’t know, it’s not easy. It’s
fundamental that the rule of law be observed and that the individuals’
rights are protected – all that has to come first. And then, of course, one
should try to make all judges feel all right, but it’s difficult to get a joint
approach to that, to prepare templates for each specific situation.
(Mikael, judge, 35+)

Mikael here stresses the importance of autonomy for the rule of law, and al-
though he noticeably struggles to articulate a hitherto unarticulated stance,
he puts legal autonomy in opposition to collective emotion management,
or the identification of joint emotion management strategies. Later on dur-
ing his interview, Mikael developed these reflections further, proposing
that since talking to other judges might influence one’s decision-making, it
would be better to talk individually with a professional therapist, as a way of
separating out the emotional aspects from the legal aspects. Independence,
here articulated as autonomy, is depicted as fragile and easily swayed in a
collective setting when the focus shifts from (hard) legal reasoning to ‘soft
skills’, including emotion management. It seems as if the expression and
sharing of emotions, not the feeling of them itself, is what presents a threat
to the rule of law. Not talking about emotions would then safeguard against
emotionally influenced decisions and reproduce trust in the legal system. By
this logic, individualization of emotion management can be understood as a
fundamental professional sacrifice. Nevertheless, judges also did talk about
emotions with trusted colleagues in the backstage areas of the court:

How many times have we gone from a hearing straight to some col-
league, stamping our feet on the floor and saying, “What a god-awful
hearing I just had, he was so stupid!” I think those kinds of emotions are
pretty common, as is going backstage to talk about them.
(Asta, judge, 60+)
80 Organizational emotion management
In this quote, judge Asta talks about instant emotion ventilation, about
“stamping our feet”, to relieve tension after a difficult hearing. In our study,
female judges referred to collegial emotion ventilation more often than their
male colleagues, but when asked about gruesome cases and unsuccessful
emotion management, judges more generally described having “dealt with
it alone”. In one case involving child pornography, the judge was completely
unprepared for his own strong emotional reaction:

I couldn’t handle it; I had to take a break. It was the most repulsive shit
I have ever – just horrific. And that poor court-clerk young woman. I
bought her a [laughs], a six-pack of beer and told her, “Go drink this fast.”
(Erik, judge, 50+)

Erik excused himself for sending the young clerk home with alcohol by say-
ing “There was nothing else I could do”. It is interesting to note here that
apart from Monika earlier (page 74), Erik was the only judge in our study to
mention any clerks and their need for emotional assistance in cases the judges
themselves found too gruesome to handle. Taking a break or repressing emo-
tions in some other way could be momentarily successful for the purpose,
but ‘flashes’ of ‘images’ could occur, as could lingering physical discomfort:

It was this child pornography case I had, it’s been a while now, but I
suffered from these pictures that kept popping up in my head for six
months afterwards. I felt really bad. And some awful rape cases: I had
one when I was still relatively young, no more than an associate judge.
(Kajsa, judge, 45+)

Similarly to Kajsa’s recollections here, the gruesome cases judges re-

counted were often from a long time ago, but had stayed fresh in their
memory for months and even years. Dealing with gruesome cases also
entailed talking in private with partners. Although our study was limited
to the work sphere, there were several indications of also partners having
to “deal with it”: “I’ve had a lot of violent crimes and sometimes there
are gruesome pictures…. I’ve just handled it myself, so to speak, talked
about it at home” (Ola, judge, 40+). Or, as the spouse of one of the judges
in the study spontaneously remarked when hearing about our study, “You
should talk to partners, relatives, they have a lot to tell!” (Fieldnotes,
court). This spouse’s remark suggests that there was more emotion man-
agement taking place at home than what the judges were willing to re-
veal. There were also spouses refusing to be implicated in this emotion
management, as was the case with Kajsa’s (cited above) husband. Kajsa
said: “I don’t really have anyone to talk to, as my husband said that he
can’t take it, so it’s more like I’m talking more to my colleagues. Some
of them you can talk to”. The ambivalence regarding the colleagues in
­Kajsa’s statement (“I don’t really have anyone” vs stating that she can talk
 Organizational emotion management 81
to “some” colleagues) indicates the general pattern that judges may have
one or a few colleagues they confide in. It also signals the precariousness
of needing to “talk”; it is not safe to be open about this need.
While the teflon culture assumption that judges “have no feelings” is
clearly misguided, judges get support in remaining emotionally distant by
the prosecutors’ purifying and translating work. Handling and being faced
with all the details of a crime, prosecutors make some important decisions
when taking the cases to court, notably regarding how much of the evidence
actually needs to be presented at trial. For instance, some prosecutors like
to present photos of murder victims when they were still alive. The pictures
create a point of identification, which is hard to do when having to depend
on images of dead – and perhaps severely mutilated – bodies, and pros-
ecutors believe that this is fair to the victim and that it strengthens their
case. Most judges find such pictures out of place and unnecessary, however,
precisely because the pictures evoke emotions and emotions are considered
misplaced in court. Similar reasoning may be found in cases involving child
pornography, in which there are judges who think that showing video re-
cordings or pictures taken by perpetrators is abusive in several ways:

Watching these films is in itself an abuse of these children but also of us

who sit there, so I try to avoid that […] And if that can’t be done, I try
to minimise the suffering for us by watching picture by picture instead,
with no sound.
(Viktoria, judge, 50+)

From this quote, we can see that there are subtle ways to manage the teflon
culture. Viktoria actively works to preserve her emotional distance to pic-
tures and video recordings showing grave abuse by only looking at them
frame by frame and turning off the sound. Prosecutors are not always happy
with this solution. Prosecutor Karl (55+) described a child pornography case
where he had accepted the request of the district court judge to skip some of
the video recordings at the trial. The result was…

…a verdict in which the accused was found guilty of “child pornogra-

phy, not severe”. “The images were not that severe”. So I appeal and
bring the pictures to the appeals court, and after a while the chair says:
“Do we really need to watch this?” I say: “I refer to the verdict from the
district court.”
(Karl, chief prosecutor, 55+)

In the appeals court, Karl won a verdict for severe child pornography.
Hearing the verbal description of an event is not the same as seeing it, and
prosecutors know this. The judge, at one end of the legal encoding chain, is
exposed to no more than a selection of pictures or films, while the investigat-
ing police officers at the other end need to see them all. The prosecutor in the
82 Organizational emotion management
middle needs to manage more of these pictures than the judge. Repressing
emotions of grief, fear, and disgust is the most common way to individually
deal with these pictures. Some come out as “good copers” with an ability to
switch in or out of their emotional performance (Fineman, 1995: 130).

I remember a case I had many years ago, one in which a girl had been
raped by her father many times, I mean, really many times, and she got
pregnant. […] Then I sat at the kitchen table at home, snivelling a bit,
but that would never happen now – never. […] You get hardened, and
I think that’s important if you are to survive in this job. You can’t go
home and weep once a week; then you have to change jobs.
(Ingvar, chief prosecutor, 45+)

Becoming “hardened” was often described as an ideal, but it could also be

problematized in that prosecutors were seen to need the ability to empathize
in order to perform well. They should not grow ‘cold’ (Wettergren and Berg-
man Blix, 2016). Consequently, the prosecutors who described themselves as
hardened and as being able to cope could elsewhere, in another discussion
or in another part of an interview, recount stories that still described them
as affected by some cases. Below, prosecutor Jakob talks about a debriefing
session following a case of severe and repeated sexual abuse of a child:

We had a meeting that night and talked about it. […] [upset tone, low
voice] I thought it was absolutely horrible and, well, then I let it all out,
as it was, I mean, it was a real boy, and child pornography is also actu-
ally about real children. Everything is real. But to have to see this, that it
actually has happened, that’s so horrible; it’s, well, yeah, it’s sickening.
There are, like, a million feelings swirling around inside you, you know.
(Jakob, prosecutor, 50+)

Jakob had a low and steady voice throughout his description of the case and
the debriefing session, yet he conveyed deeply felt disgust and grief. Working
with rape and sexual abuse cases was also told by some prosecutors to affect
their own sexuality; producing a “skewed idea of your own sexuality, I mean
it becomes – it’s hard, like – because these images pop up all the time…”
(Agata, chief prosecutor, 45+).
As we have seen, prosecutors in our material commonly expressed inter-
est in regular debriefing, while managers described difficulties in making
people attend them (“there was no interest”). Another option is informal
collegial emotion management. Prosecutors often stated that they could
discuss and ventilate all kinds of experienced hardships in one’s vulnerable
professional position as a prosecutor but, even among prosecutors, ventilat-
ing about emotional repercussions of horrific cases in the company of one’s
colleagues breached the norms of teflon culture. Talking about emotions
was to be done indirectly:
 Organizational emotion management 83
I guess we – well, we don’t talk about it, but we do, because we talk with
one another a lot, so that, I mean, if something happens we do talk, do
kind of debriefing or whatever you want to call it. And if I think before
[a trial] “How am I going deal with this?” I know that the defendant
will be really angry at the victim, and then I will brainstorm about how
I ought to handle this. So, we talk with one another, but what we talk
about is not really articulated, we don’t make it clear that we’re talk-
ing about emotions, about how we’re going to handle our emotions. We
don’t say that; what we say is “How will I deal with this situation?” and
“What would you do if this or that happened?” That’s how we do it.
(Josefin, prosecutor, 35+)

Emotion management here is achieved using codified talk, talking about

emotions without talking about them – through what we call “ventrilo-
quism” (cf. Bloch, 2016). Ventriloquism was used as a way to avoid breach-
ing the feeling rules while still dealing with difficult emotions together.
However, it seemed to amount to collegial support in that it shifted the focus
away from the emotionally burdening contents of a case onto the judicial
and formal aspects of it.
Alternatively, strong emotions could be redirected towards professional
relationships: lawyers are frequent objects of frustration, disappointment,
and anger, and, for prosecutors, judges can be objects of strong emotions,
too. In the following quote, prosecutor Elsa speaks about the latter and
draws a rather sharp distinction between collegial informal emotion man-
agement and formal debriefing sessions (of which she has experience):

We talk a lot anyway – you notice when you sit there during the coffee
breaks that there’s constant debriefing processes going on – but in a sim-
pler form. And some do it better than others. […] Because you always
have opinions about the judge or the defence lawyer or the accused or
the case as such – I mean, there are billions of opinions each time that
some feel a great need to talk about, and it’s good that there is this
possibility at your workplace. We’re quite tolerant, so I must say you’re
also allowed to talk. But [debriefing] is probably the only occasion when
I actually get in touch with my feelings a bit more deeply and in a way
that allows me to show my feelings. […] The fact that you can react to
things because you’re carrying so many other things that all of a sudden
something makes you burst, although it might not be a big thing, in
itself [---] Something can suddenly make some other thing surface that
happened to you quite a long time ago.
(Elsa, prosecutor, 50+)

No matter how important coffee and lunch breaks might be as occasions

for people to let go of some of their experienced pressure, ventriloquism
first and foremost achieves emotive-cognitive reorientation and thus does
84 Organizational emotion management
not relieve the weight of accumulated grief, horror, and disgust. Inter-
estingly, the quote also indicates the accumulated weight of emotions
that have not been properly ventilated, suggesting that these may surface
much later.
Another version of ventriloquism in our study was achieved through jok-
ing cultures (Bergman Blix and Wettergren, 2018). While joking occurred
frequently at all the courts and prosecution offices in our material, it is tell-
ing that prosecution offices exhibited a rather distinct, dark sense of hu-
mour. Humour relieves tensions and dark humour may act as a way to let
out dark emotions without actually talking about them.

Conclusion
Organizational contexts shape the emotional profile of both the judge’s and
the prosecutor’s profession. We have seen that the judges’ work is funda-
mentally organized around time as a tool: they take pride in contemplation
and reflection. Prosecutors’ work, on the other hand, is organized around
time as a challenge: they take pride in their capacity to make quick decisions
and to let go. The organization of time supports an orientation towards
teamwork in the prosecutors’ emotional profile, while there is an orientation
towards autonomy in the judges’ emotional profile. Whether time is a tool or
a challenge, workload appears to steadily increase for both judges and pros-
ecutors. For both professions, increased workload and pace of work func-
tion implicitly as organizationally induced emotion management, pushing
towards detachment. This, in turn, calls for organizational policies of good
treatment, to counteract an emerging mechanic approach (due to the focus
on staying on time and getting done with the process) to the lay people in the
courtroom, especially on the part of the judges.
Organizational attention to security, becoming more and more prom-
inent in the past few decades, works to heighten the attention to risk and
thereby produce fear, but it also increases the demands for a secure envi-
ronment (especially for the prosecutors). These demands in many ways go
against the presumably transparent, open, and trust-based legitimacy of
the legal system. Increased security controls undermine institutional self-­
confidence and public trust. There are rather sharp differences in how far
this development has gone, insofar as the two legal professions investigated
in this book are concerned: prosecutors have a higher risk awareness and
higher demands for security than judges. Both professions, however, are
reluctant to admit any actual danger and feelings of fear, which is in line
with the performance of institutional self-confidence and belief in the legit-
imacy of the legal system.
Teflon culture – the feeling rule that emotions should not stick to a
­professional – is thus related to both the performance of power and legiti-
macy and the emotive-cognitive frame’s systematic silencing of emotions. As
we demonstrated in this chapter, the absence of any professional mechanisms
 Organizational emotion management 85
for rendering emotion management explicit and legitimate gives rise to tech-
niques such as othering and ventriloquism and identifies the individual as the
locus of emotion management, highlighting innate personality traits as deci-
sive for success or failure in this regard. One’s (lack of) capacity to deal with
emotional hardships, work pressure, and stress reveals one’s (un)fitness for the
job. As a consequence, even if and when there are debriefing and therapeutic
talks provided at one’s workplace, there is a general reluctance to use these
resources.
4 The dramaturgy of court emotions

It’s a ritualized process in which I play a formal role that I can a­ lways fall
back on. It can happen that you cross the line, get too aggressive when cross-­
examining someone, but that usually results in some kind of r­ eprimand –
there is a control mechanism – and then you back down. The role I play in
the process is controlled to the extent that if I sometimes lose control, the
ritual holds me within the boundaries.
(Göran, prosecutor, 35+)

G
öran describes how the court ritual and the improvised coopera-
tion with the judge serve as emotion management strategies; the
judge’s reprimand serves as a ‘rule reminder’ (Hochschild, 1983),
keeping his professional role performance in line with the feeling rules of
procedurally correct boundaries. In the previous chapter, we investigated
the ­emotion management embedded in organizational structures. In this
­chapter, our focus will be on the backgrounded (interactive) emotion man-
agement of role performance and the trial as a dramaturgical ritual. We
thereby build our argument that the performance of justice as unemo-
tional relies on empathic and skilled emotion management, and emotional
exchange. This is related not only to the emotional expressions of others
but also to one’s own. ­Background emotion and emotion management are
­essential for the legal professionals to navigate the court drama and their re-
spective roles in it. The first part discusses the court process as drama. First,
we set the scene, which is the courtroom, describing how it is meticulously
structured to orient and tame emotions. The code of legal procedure serves
as a script, further taming emotions through its detailed rules of conduct
and ­conversational turn-taking. Judicial terminology and language itself
transform emotional narratives into a legal code that silences emotion.
In addition to the dramaturgical setting, script, and language, legal actors
need to perform their roles in concert and in a convincing manner. The sec-
ond part of this chapter narrows down on the interactional and collaborative
emotion management in trial situations, looking at it through the prosecu-
tor’s and the judge’s perspectives. Through these, we can then elaborate a
set of dramaturgical elements used by legal actors in order to sustain their

DOI: 10.4324/9781315306759-4
 The dramaturgy of court emotions 87
role performance: ‘situated adaptation’, ‘tacit signals’, ‘front-stage strategic
empathy’, ‘dramaturgical stress’, and ‘emotional toning’.

Setting the scene for the non-emotional ritual

In the court, as on the theatre stage, everything is there for a reason, from
the placement of furniture and equipment to the costumes and accessories.
This reason is often two-sided: both symbolic and practical. Unlike the the-
atre, the court has no director and set-designer to decide which symbolic
meaning the setting and the roles should project in a particular hearing.
Instead, the legal actors are socialized into norms and value systems about
the procedure and their roles in it. These norms and value systems are part
of the emotive-cognitive judicial frame.
When asking the legal actors about the setting and the dress code in
court, most informants talked about practical aspects. The elevated bench
where the judge, lay judges, and clerk are seated when the parties enter, and
also remain seated until the latter have left the room, is “practical” because,
from it, the judge can keep a careful watch on everybody present. Never-
theless, our informants were also aware of the symbolic meaning of this
arrangement. As associate judge Kristin described it:

This thing with us sitting higher up … it’s practical, because the audi-
ence sits in front and then the court can see everyone, and in a way it’s
the case that the judge rules, I mean we’re also de facto elevated, we put
ourselves above the people we judge.
(Kristin, associate judge, 30+)

The elevated bench thus symbolically accentuates the power of the judge.
The message here, furthermore, goes both ways: the judge feels empowered
and sitting below one also feels “pressed down”, as associate judge Leo (30+)
noted when changing places once: “Sitting down there, I really felt myself
sinking down; I felt more pressed down than how it appears to be, looking
down from up there” (see Figure 4.1).
The correct attire in court is a dark suite, which is also considered both prac-
tical and respectful of the audience. Judges and prosecutors keep suits or b ­ lazers
in their offices, slipping into them before going to court. Thereby, they also slip
into their official role: “Dressing up for trial, I kind of enter my trial mode,
readying me for the hearing” (Eva, associate judge, 30+). Putting on a jacket or
a full suit signals a role transition, entailing strict adherence to the feeling and
behavioural norms governing the public performance of a legal professional:

I enter a role. I put on my suit and thereby I become my role. […] For me,
clothes are important, because they show that … now I’m an authority
figure, and then the state expects me to act in a certain way.
(Dagur, prosecutor, 35+)
88 The dramaturgy of court emotions

Figure 4.1 I nterior of court room and an ongoing trial. On the left side: the victim
counsel, the victim, and the prosecutor. At the central bar: (from the
left) a lay judge, a lay judge, the professional judge, the court clerk, and
a lay judge. On the right side: the defence lawyer and the defendant. The
picture is arranged. The persons in the picture are not related to any real
trial, nor are they participants in the research study behind this book.
Depending on when the courtroom is designed, the bench can be more
or less elevated. Photo: Åsa Wettergren.

For prosecutors, the dress code is more relaxed than for judges, except in
the appellate courts. In the district courts, combining a blazer with a pair of
jeans can be perfectly fine for them. Yet, the dress code also varies, depend-
ing on the nature of the trial. In prolonged trials, a particularly strict dress
code marks the seriousness and ceremoniousness of the opening and closing
days, while in between the two the code may become more relaxed. The
clothes worn by the professional actors outside the courtroom often give
clues as to what is at stake inside. A murder trial, for instance, unfolds as a
full-blown drama with all the costumes and rituals in place, while the four
more minor cases quickly dealt with, one after the other, in the courtroom
next door constitute more of a habitual improvisation.

Script and legal terminology

The script of a typical Swedish criminal proceeding consists of the code
of judicial procedure (hereafter CJP) and the penal code. Judges in train-
ing usually use a cheat sheet to keep track of the order of events in a trial:
 The dramaturgy of court emotions 89
charges and claims, defendant’s stance, development of facts, examinations,
personal matters, and closing statements. Prosecutor trainees often write
down their developments of facts and closing statements beforehand, also
in simple trials. Procedural correctness is the backbone of an objective legal
process, and the script is the guarantor of a legally correct hearing, invested
with professional pride by the professional actors. The CJP directs the se-
quence of events and the kinds of articulations allowed, and, along with ju-
dicial language, it becomes a crucial manifestation of the emotive-cognitive
judicial frame, taming and silencing emotions.
In Chapter 2, we proposed that the translating function of the prosecutors
is a key aspect of their emotional profile: prosecutors purify fuzzy reality into
judicially encoded packages. This argument builds on Tilly (2008), who dis-
cusses how the frames of social interaction influence the way people give rea-
sons. In most everyday accounts, people explain themselves by telling stories,
while specialized or expert reasoning come in the form of codes or technical
accounts (Tilly, 2008). Tilly uses the example of legal experts and describes
how, for example, an examination during a court hearing requires translation
by the prosecutor or the defence lawyer, in order to turn the stories told by
witnesses, defendants, and victims into codes for the court’s evaluation (2008:
23). That kind of legal encoding disciplines emotions, both because encoding
generally entails omitting the emotional content of an account, and because
encoding represents the authoritative account in court: people generally ac-
cept that codes override ordinary language. In the following quote, a young
woman witness takes the oath before giving evidence. According to CJP, the
judge is to remind the witnesses of their “duty to tell the truth” (1942: Ch. 36,
Art. 14) and of the fact that lying under oath can carry a prison sentence. In
their everyday work, quite many judges indeed put it in such simple terms. In
the case involved in here, however, the judge instead resorts to a legal phrase:

The judge asks that the witness repeats after her: “I, [Name] promise
and affirm on my honour and conscience that I shall speak the whole
truth and will not conceal, add, or change anything”. The witness re-
peats. The judge looks at her and says: “This oath is a declaration of
truth, the violation of which may be penalized as perjury, but you pre-
sumably knew that already”. The witness looks stunned and remains
silent. The prosecutor begins the examination of the witness.
(Observation, fraud, prosecutor Linus, 40+)

The purpose with the use of codes and procedural correctness is to ensure
fair and objective proceedings. However, when legal phrases are used in com-
munication with lay people in court, the latter’s reactions tend to be similar
to that of the witness above – consternation and intimidation deriving from
not fully understanding what the phrase means. Some of our participants
therefore talked about the importance of using vernacular language to make
themselves understood by lay people. In their view, many of the common
90 The dramaturgy of court emotions
expressions in court do not actually promote correct ­procedure but rather
tell of habituated bureaucratization. Assistant prosecutor A ­ braham (30+)
exclaimed: “I’m so tired of all that 16th-century S ­ wedish. […] Just give me
plain, regular Swedish!”
Nevertheless, inter- or intra-professionally ‘legalese’ is useful since it con-
veys specific professional meanings and thereby minimizes the potential for
misunderstandings among legal professional actors. Experienced legal pro-
fessionals furthermore manoeuver the codes in order to send tacit signals to
each other, signals that are not intended to be transparent to lay people (see
below). Legalese may also be used in situations of inter-professional status
and power challenges and inexperienced legal professionals may use it to
conceal their nervousness or shame, displaying surface self-assurance.
Legal encoding of stories told in court furthermore achieves removal of
the emotional underpinnings of these stories, with an implicit emotion man-
agement effect. This is achieved both through the choice of terminology
and the particular way that the reasoning inherent to legal encoding splits
stories up into legally relevant sequences. Below a woman stands accused of
beating her 14-year-old son. At the time of the incident, she lived with her
three children in a small apartment and the son in question had been in a
bad mood for several days before the incident. The hearing lasted for ap-
proximately 30 minutes, with the mother crying silently for most of the time,
and when speaking, expressing regret and shame for what had happened.
First, the prosecutor presented the facts of the case, reading them directly
from the prosecution file:

The prosecutor reads with a monotonous voice: “[The victim] had been
ill-tempered towards his siblings all week. One evening the siblings
come into the living room, complaining about their older brother. Their
brother then enters the room, and the mother tries to prevent him from
entering. The boy takes a shovel and hits his mother on her elbow with
it. She wrestles the shovel from him and either hits with it or throws it at
her son. He suffers a wound in his head requiring six stiches.”
(Observation, assault, court)

After this, the accused mother was examined about her version of the events.
She had already pleaded guilty and agreed to the prosecutor’s description.
Her narrative was thus basically the same as that of the prosecutor’s, while
also differing from it in the way it described the flow of events and their
emotional framing:

The accused has tears running down her cheeks and she speaks in a
broken voice: “He called me a cunt, a whore, and a bitch all week long,
and every time he passed by me, he shoved me so I got bruised all over
my body. That evening, his little siblings came running in, hiding be-
hind my back, screaming, with their brother following after them with a
 The dramaturgy of court emotions 91
shovel in his hand. When he hit me, I yanked the shovel from his hands
and tried to push him away, and I threw the shovel at him. It all took
like no more than a second.”
(Observation, assault, court)

Note the difference between the two descriptions of the same event. The
prosecutor’s version, read out in a monotonous voice, on the one hand, in-
cludes all the facts of the case, presented as a sequence of disparate events,
while all emotional cues are toned down or eliminated altogether. The ac-
cused mother, on the other hand, describes a flow of events with no precise
beginning or end, and even though she does not use any emotion words, the
narrative and its articulation are emotionally highly evocative, conveying
the emotional rationale behind the action.
While questioning the defendant, the judge continued the legal encoding
initiated by the prosecutor, but now in vivo, enquiring about exactly how the
shovel could hit the son in the head: “Did you hold the shovel above your head
or in front of your chest?” From the legal-encoding perspective, the question
sought to clarify whether the strike was intentional (shovel was above the
mother’s head) or more of a defence reflex (a shove from the chest level). The
focus in the question, however, also had the effect of calming the mother: she
stopped crying and tried to remember with the help of body gestures. The
emotive-cognitive judicial frame thus keeps both professionals’ and lay peo-
ples’ focus away from emotionally engaging aspects of the narrative.

Front-stage performance and emotional communication

Apart from setting the scene and the language, the court ritual also needs
to be performed. Goffman’s definition of ‘performance’ provides a useful
starting point:

A performance … is that arrangement which transforms an individual

into a stage performer, the latter, in turn, being an object that can be
looked at in the round and at length without offence, and looked to for
engaging behavior, by persons in an ‘audience’.
(1974: 124)

In ordinary face-to-face interactions, it is impolite to stare, and people show

respect to one another by continuously switching between looking and
averting one’s gaze. In court, however, the legal actors can be looked at in-
cessantly. This arrangement underscores the centrality of performance to
fulfil the demands for positivist objectivity postulated by the judicial frame.
In particular, the bench, with its elevated position in the centre of the
courtroom, remains exposed to looks. The judge, lay judges, and the clerk all
need to perform impartiality, that is, they should not express any feelings or
subjective views about the case. This requirement is usually met by putting
92 The dramaturgy of court emotions
on a ‘stone face’. This expression, or, rather, lack thereof, is the standard fa-
cial role performance of the court, although permanently employed judges
can deviate from it based on their personal styles. They may, for instance,
mimic puzzlement, surprise, attentive listening, or thoughtfulness, or they
may smile, for instance when welcoming witnesses.
Although both defence lawyers and prosecutors can mobilize a whole
range of facial expressions as part of their adversarial repertoire, the de-
fence lawyers usually tend to be the more expressive of the two. Prosecutors
usually keep a face that remains expressive but controlled, we may call it a
‘poker face’. While it is similar to the stone face in that it can hide actual
feelings, it differs from the latter in that it displays emotions as part of a
broader strategic emotion management. The poker face may, for instance,
become tender when turning to the victim (display of sympathy), but stern
when turning towards the accused (display of moral outrage). When the de-
fence lawyer talks, the prosecutor can demonstrate disinterest, disbelief, or
irritation by combining a stern poker face with bodily gestures.
The two distinct faces are employed as part of strategic emotion manage-
ment front stage, belonging primarily to the performance of justice for a real
or imagined lay audience. Indeed, the ‘audience’ may consist only of the lay
judges and the defendant. At the same time, however, also emotional commu-
nication that legal professionals hope their audience not to understand takes
place. In the following quote, judge Eleanor describes a very common way
for presiding judges to communicate to other legal actors present in the room
their encouragement and interest as opposed to boredom and irritation:

I take notes to be able to keep actively listening for longer periods at a

time, but I also look up every now and then at the person speaking to
show that I understand and that I actually find what they say relevant
enough for noting down…. And then, if prosecutors or lawyers stray
from the subject matter, I put down the pen, lean back, and turn my
head away, to signal that “this doesn’t interest me at all”. […] I don’t do
that with the defendant or a witness, however … they might misunder-
stand those types of signals. But lawyers and prosecutors, they get the
message right away.
(Eleanor, associate judge, 30+)

As we see in this quote, in the context of the ‘non-emotional’ hearing, the

judge’s use of the pen becomes a crucial indicator as to the standing of the
legal professionals. Depending on the situation, putting the pen down can
communicate anything from feeling blasé to feeling angry (Bergman Blix
and Wettergren, 2016). Purposeful use of looks and gazes is a communica-
tion technique resorted to by all legal professionals. Prosecutor Karen (30+)
explained how “every trial is a game of looks” as the opposed parties try to
win support from the lay judges. The “game of looks” thus blends with the
poker face, staged for the lay people in court. Karen went on to describe
 The dramaturgy of court emotions 93
how the looks can also be a way for professional actors to cooperate in the
interest of a smooth procedure:

There are also things that can only be tacitly expressed in court. For
example, I had this witness who might have been mentally disabled; we
weren’t told of that beforehand. Or if someone – something that you
don’t want to say directly, like if you need an interpreter even if they
don’t want one. You know, things like “Can we pull this through?”;
things like that. “How’re we going to solve this? Should we continue the
examination…?” Then you exchange looks.
(Karen, prosecutor, 30+)

Looks here communicated concern or worry about potential obstacles to

the procedure that could not be discussed openly due to respect for the lay
people present.
But looks can also be part of the poker-face strategy to communicate things
that lay people should pick up, such as the antagonism between prosecutor
and defence lawyer. Defence lawyer Bengt explained how he used his poker
face and bodily gestures to influence the proceedings during the prosecutor’s
examination of his client: “I lift my eyebrows, I lean back, or I lean forward,
looking sternly at the judge, or I even interrupt the prosecutor: ‘I must say that
that was an odd question’” (Bengt, defence lawyer, 55+). Bengt here wants his
client to see that he is engaged and alert on the client’s behalf (cf. Flower, 2016).
Looks and discrete gestures, such as the positioning of one’s pen, commu-
nicated emotions between the professionals not suited for an audience. The
stone face and the poker face, bodily gestures and postures, on the other hand,
were vehicles for communicating emotion that could be shared with the lay
people in the audience without tarnishing the image of justice as something
purely rational. The reason that there has to be a modicum of visual emo-
tional communication, we argue, is that it is essential to convey a convincing
role performance (Goffman, 1959). Complete lack of emotional expression
would undermine the legitimacy of rational justice in the eyes of the public.

Front-stage collaboration to control emotion

In order for the court ritual to run smoothly and achieve its goal of present-
ing justice as unemotional, the professional actors need to collaborate. Par-
ticularly when lay people involved in a case bring vibrant emotions into the
courtroom, the professionals collaborate to either disregard these emotions
or display joint empathy in response to them, depending on the circum-
stances (see Scarduzio and Tracy, 2015).
In one trial involving a 15-year-old male youth offender reported by his
own father for driving the family’s car (minimum driving age in Sweden is
18), the prosecutor, the defence lawyer, and the judge all acted in concert to
embed the hearing ritual in a framing mindful of the vulnerability of the
94 The dramaturgy of court emotions
accused. The female judge displayed a soft and kind demeanour from the
very start, addressing the defendant as a child, while the prosecutor dis-
played a more strict and judgemental style and the defence lawyer, a man in
his 70s, put on a calm and fatherly appearance. The judge assumed the role
of a guide, carefully steering the visibly remorseful and ashamed accused
boy through the procedure, calming him down and making sure that he was
able to follow what was going on:

The judge, looking at the defendant, explains with a calm and kind voice
how a trial works and asks if the boy understands. The boy responds:
“Yes, we’ve talked about it in school”.
(Observation, unlawful driving, Inga, chief prosecutor, 50+)

After the prosecutor had developed the facts, the judge turned to the de-
fendant again: “Now it’s your turn to tell us what happened”. The boy
described how he and some friends wanted to go and join a party, so he
got “this stupid idea” to borrow his father’s car. The father was asleep at
home, but woke up when the boy returned from the party and called the
police. Following his description of the events, the prosecutor began the
examination:

Prosecutor [in a stern, lecturing tone]: “How did the drive go?” Defend-
ant: “I guess it went well”. Prosecutor: “You’re an experienced moped
driver?” Defendant: “Yes, and I’ve driven cars on, what’s it called…”
The defence lawyer fills in: “A simulator”. The prosecutor asks the ac-
cused if he has given any thought to what might have happened and if
he understands the seriousness of what he has done. The boy answers
in the affirmative and the judge concludes the examination with a dry
“Thank you”.
(Observation, unlawful driving, Inga, chief prosecutor, 50+)

While the prosecutor in this case used a lecturing tone, her questions were
not particularly harsh. In a follow-up interview, she explained that she was
“caught off guard”, learning only during the examination of the boy that
it was his father who had reported him: “I thought, what an idiot father!
[Laughs]… I didn’t want this to fall too hard on the boy”.
Towards the end of the trial, when the judge detailed the defendant’s
personal matters, it also turned out that, by reporting the event, the fa-
ther wanted to teach his son a useful lesson. The mother had expressed
concern about her son’s cannabis habit, and had contacted a treatment
clinic about what she saw as his addiction problem. The defence law-
yer asked the boy about the treatment programme and thereafter asked
the judge’s permission to allow the father, who was sitting in the audi-
ence, to say something. The father embarked on an emotionally highly
charged narrative about feeling guilty for reporting his own son while
 The dramaturgy of court emotions 95
simultaneously hoping that he did the right thing, teaching his son a
lesson. When he was done, the prosecutor took over with her closing
statement:

The prosecutor leans back and with an authoritative tone asks the de-
fendant if he understands that he should not drink at his age, nor take
any drugs. In her closing statement, she proposes that the sanction
suggested by the probation authority will suffice. The defence lawyer
agrees with the prosecutor and adds that it is good if the defendant now
understands the seriousness of the matter, as an outcome of this trial.
The judge concludes by saying that the judgment will be issued shortly.
Everyone leaves.
(Observation, unlawful driving, Inga, chief prosecutor, 50+)

In this excerpt, the defence lawyer’s suggestion that the trial is a good thing
for the boy can be seen as an effort to reduce the father’s previously ex-
pressed anxiety. It also tells the boy that his father had good intentions, and
that the boy should not resent him. The defence lawyer’s emotion manage-
ment here reaches beyond the judicial domain and into the domain of care.
In our material, defence lawyers emphasized that both of the two domains
were important aspects of their professional interaction with their clients.
The prosecutor proposed a lenient sentence that was agreed to by the de-
fence lawyer, and later issued by the court. Afterwards the prosecutor ex-
plained that she wanted to remain stern without intimidating the boy. On
their way out of the courtroom, she then talked to him to prevent him from
“feeling that we’re on opposite sides”.
This case illustrates how the legal professionals collaborate in a tacit
agreement to perform their respective roles impeccably but smoothly, a
rather common practice in youth cases where the hope is to prevent the
youngsters from engaging in further crime by applying a preventive rather
than punitive approach. The judge can adopt a ‘kind’ though still objec-
tive demeanour when the prosecutor takes on the judgemental role, and the
defence lawyer acts supportively and caring for his client, while agreeing
with the prosecutor on the “seriousness of the matter”. Upholding proce-
dural correctness through ritual, script, and role-adherence, such coopera-
tion mitigate the harshness of the performance of justice while at the same
time carefully controlling the emotionality of the lay people involved. Such
smoothly concerted performance of justice builds on the subtle emotional
communication described in the previous section.
So far, we have focused on front-stage performance. In what follows
next, we will show how backstage preparations, front-stage presentations,
and backstage venting are interlinked and reveal background emotional
processes and emotion management from the perspectives of prosecutors
and judges, respectively. We will highlight specific dramaturgical features
used by the different legal actors to sustain their performance of procedural
96 The dramaturgy of court emotions
correctness: ‘situated adaptation’, ‘tacit signals’, ‘front-stage strategic empa-
thy’, ‘dramaturgical stress’, and ‘emotional toning’. We begin by looking at
a brief ‘grey trial’, shadowing the experienced prosecutor Jakob. A grey trial
is a minor offense trial, usually a matter of quick and routine handling by
all the legal professionals. At the same time, because they may, as in the trial
with the 15-year old discussed in this section, involve first-time and one-time
offenders, as well as experienced recidivists, they can become unexpectedly
emotional.

The prosecutor’s perspective: enacting backstage/front stage

The waiting room in the courthouse constitutes the backstage to the
courtroom but for the prosecutor it is a space of layered front stages.
Prosecutor Jakob has had a full day of grey trials. He is dressed for the
occasion in a pair of jeans and a grey striped jacket. Entering the court’s
waiting room for his fifth trial of the day, aggravated theft, he identifies
the injured party, an old man looking a little misplaced on one of the so-
fas, and approaches him:

They shake hands, after which the old man sits down again and asks
Jakob if he is the person representing him. Jakob keeps standing and
says with a disinterested voice that he is partly representing the old
man’s insurance company that has claimed compensation for the money
they have paid him, the victim. The old man, who turns out to be in his
late 80s, apologizes that his hearing is bad. Jakob replies with a louder
voice: “Yes, I’m here to help you”. The old man wants to show him pa-
pers concerning his compensation, arguing that he has not been cor-
rectly compensated. Jakob protests at first but eventually sits down with
the old man when realizing that there actually has been some problem
with the insurance company.
(Observation, theft, prosecutor Jakob, 50+)

When Jakob first introduces himself to the victim he establishes a certain

distance, even stating that he is partly representing the man’s insurance
company, not the injured party. This is in line with the prosecutor’s objec-
tivity demand: prosecutors represent the state, not the victim, contrary to
a common misunderstanding by victims that prosecutors themselves are
keen to correct. During his follow-up interview, Jakob explained: “I usually
approach the injured party to say hello, but I don’t want to, so to speak,
convey the impression that I’m close to anyone, anyone who’s going to tell
their story [in court]”. In other words, also the waiting room, the backstage
arena of the courtroom, may demand front-stage presentations from legal
actors: it is a semi-front stage. Jacob takes great care to display an objective
demeanour, not associating himself too overtly with the victim. However,
the victim also appears to be in need of assistance from him, which makes
Jakob change his approach:
 The dramaturgy of court emotions 97
Jakob and the victim sit side by side, with Jakob showing a slightly pro-
tective attitude by sitting close and articulating his words clearly, so
that the old man can hear him. Eventually, they agree on a new damage
claim, for both the victim and the insurance company.
(Observation, theft, prosecutor Jakob, 50+)

When Jakob understands the victim to be right in his argument and it be-
comes obvious to him that the victim has already fought a lot in vain with his
insurance company, he becomes more engaged. Besides representing the state,
prosecutors in Sweden also have a far-reaching obligation to assist the vic-
tim during the preliminary investigation. As Jakob explained: “Since the po-
lice did not ask these questions, I’ve got to do that. […] So as prosecutors we
have to step in and, well, we help victims, and naturally we grow very close”.
Accordingly, in order to perform objectivity, Jakob at some points needs to
demonstrate distance, while at others he needs to become empathically in-
volved. As we can see from the above, the shift from disinterested distance to
engaged proximity and back can be swift and requires from the prosecutor a
certain level of emotional astuteness.
Jakob’s involvement with the victim results in a changed damage claim. Af-
ter their agreement on the matter, Jakob glances around for the defence lawyer.
They have had hearings together earlier that same day, and they like to chat
a little in between trials. The defence lawyer, who stands a bit further away,
talking with his own client, notices Jakob and comes over. Jakob greets him
and tells about the issue with the insurance company, giving him a heads up
about the adjustment to the damage claims. Thereafter the two both complain
a little about the trial’s being late: “It’s disrespectful to let people wait like this”.
For prosecutors and defence lawyers to chit-chat with each other during
grey trials is common, offering a way for them to exchange neutral infor-
mation about the case and often also, if they know each other from before,
talk about this and that. The older, more experienced legal actors see these
professional interactions outside the courtroom as the ‘fun’ part of grey tri-
als, with the hearings themselves tending to be routine. The younger profes-
sionals described their collegial interactions more in terms of an emotion
management strategy: “If you have a relationship – not one between best
friends, but a work relationship – then we can take that with us when we go
into the courtroom. It doesn’t get personal; we don’t get the trench warfare”
(August, prosecutor, 35+). This experience was shared by defence lawyers:

We meet in court a lot, us defence lawyers and prosecutors, so it would

be dull if we wouldn’t chitchat a little every now and then. I find it quite
nice. But then again, it depends on who your client is. […] If you represent
someone who’s traumatized, then you have to focus on taking care of that
person. Or someone who is very angry with the prosecutor: then you need
to create a bit of distance, you need to be sensitive to that. But I think that
many of our clients understand that we do have this collegiality.
(Selma, defence lawyer, 40+)
98 The dramaturgy of court emotions
Collegial interaction in the waiting hall creates fleeting shifts between the
position of demarcated distance that marks one’s front-stage performance
and moments of pleasurable chit-chat constituting an interactive back-
stage for inter-professional ventilation and relaxation. Situated emotional
­communication – through looks and bodily gestures – is the means by which
the appropriate course of action is agreed upon.

Situated adaptation to ordinary surprises

Although grey trials are often seen as “easy” assignments, they may still be
full of surprises (cf. Roach Anleu and Mack, 2017: 33–35): the accused, the
victim, or some of the witnesses fail to show up, new evidence surfaces in the
examinations, or technical devices fail. Emotive-cognitive astuteness about
unexpected events, the dramaturgical feature of ‘situated adaptation’, is es-
sential here. In the trial with Jakob, the hearing did not even start before an
unexpected event occurred: the judge announced himself to be an acquaint-
ance of the victim, which could be a cause for disqualification.
When everyone has entered the courtroom, the presiding judge begins
by telling the court that he and the victim are members in the same Rotary
Club, quickly proceeding to explain that he has “talked to the chief judge,
and I do not think it disqualifies me”. The defence lawyer appears to disa-
gree, however. Telling the judge about the new damage claim that came up in
the waiting room, he states this circumstance to cause potential “complica-
tions”. Through this, he signals the defence’s wish to request disqualification
of the judge, although avoiding any direct articulation of his intention. The
judge decides that the prosecutor should first present his new, revised claim,
after which the court will take a break to deliberate. In his follow-up inter-
view, Jakob commented:

The judge must have realised this rather late, I guess…. Had he noticed
it before, they’d have put another judge on the case and this would never
had happened…. I mean, it’s an administrative matter. It’s not that com-
mon, but it has happened to me, too. A couple of times I’ve noticed that
I actually know the person sitting in front of me in the courtroom…. But
it’s good if you – you should be transparent about it.
(Jakob, prosecutor, 50+)

The quote suggests that incidents like this happen, and, while in themselves
not that noteworthy, they become troublesome primarily if they take place
in front-stage settings because they seem to disrupt the performance of ob-
jective justice. It is interesting to note that Jakob only refers to the potential
problem of presenting an impartial demeanour, not in any way questioning
the objective state of mind of the judge. This points to the habituated profes-
sional belief that the mere idea that legal professionals would be influenced
by their emotions contradicts the very definition of “the professional”.
 The dramaturgy of court emotions 99
The professional judge chairs the court sessions and enjoys the highest
status in the court hierarchy. Ritual deference (cf. Clark, 1987; Scheff, 1990)
towards them by the other legal professionals present is key to a smooth pro-
cedure (see Chapter 5), contributing to the performance of objective justice.
The professional judge’s opinion is hardly ever questioned, and in the case
with Jakob, the issue was even more delicate than that: the question was
about whether to express doubts about the judge’s self-proclaimed capacity
to remain objective. The defence lawyer swiftly adapted to the situation,
however, resorting to addressing a matter (the new damage claim) that did
not directly put the judge’s decision under question.
In the waiting room, while the court discusses the objection presented,
Jakob manifestly moves away from the defence lawyer and his client, walk-
ing to the water fountain at the opposite end of the hall to quench his thirst.
Knowing that the lawyer will now need to talk with his client about the possi-
bility to request the disqualification of the judge, Jakob keeps a distance; the
waiting hall has now turned into a front-stage arena. After a while, the de-
fence lawyer approaches Jakob again and tells him that his client is not at all
happy that the judge knows the victim. Jakob agrees that someone else should
chair the hearing. The defence lawyer elaborates on his client’s reasons:

“Especially, as my client tells me, because he was at the crime scene in

different business. I’ve tried to reason with him, but if he wants to stick
to his story there’s nothing I can do about it.” The defence lawyer shrugs
his shoulders, showing that he knows his client’s denial to be ultimately
pointless.
(Observation, theft, prosecutor Jakob, 50+)

When the defence lawyer has left, Jakob explains to the researcher that the
judge is clearly not disqualified, but it is still “important to consider deli-
cacy disqualification”. Thus, even though he does not really believe that the
judge should be disqualified, he offers the defence lawyer his support. This
can be seen as an emotional gift of sympathy, a claim, according to Clark
(1987), to friendship and intimacy. In return, the defence lawyer gives Jakob
a heads up about the version his client is going to give of the events: he is
going to stick to a completely unbelievable story. While information is a
valuable gift already in itself, it also serves as the reciprocation of the sympa-
thy gift given to the defence lawyer by Jakob, thereby reproducing and con-
firming a trusting collegial relationship between the two. At the same time,
this ­emotive-cognitive interaction between the trusting colleagues marks the
transition into a backstage arena again.
What we also see, however, is the way the defence lawyer distances him-
self from his client: “if he wants to stick to his story there’s nothing I can do
about it”. Lawyers need to balance their duty to prepare a defence in their
client’s best interest with their duty to present and stand by their clients’ ver-
sion of the events (Flower, 2016), and the two duties may sometimes conflict
100 The dramaturgy of court emotions
from the professional point of view. In the trial with Jakob, by talking to
the prosecutor beforehand, the lawyer releases some anticipated shame and
saves his professional face; in court, he will (be forced to) present remark-
ably weak arguments due to his obligations to his client (cf. Harris, 2002).
Shortly afterwards, the judge shows up in the waiting hall to speak with
the victim. At most courts, it is only seldom that a judge enters a public
section in the building, rendering another surprise in the course of this
trial. The sudden presence of the judge transforms the waiting hall into
a front-stage arena again, causing the focus to be put on procedural cor-
rectness. The judge first speaks a few words to the victim and thereafter
approaches the prosecutor. He informs Jakob that the victim has decided to
pursue damages separately from the criminal case, leaving them to a later
civil case. As the judge explains, this solves the problem with the victim’s
new claim, “and so we can continue with the trial”. Finally, the judge turns
to the defence lawyer to speak also with him, returning thereafter to the
courtroom. Jakob and the defence lawyer do not talk to each other again
after the judge’s arrival at the waiting room: it remains a front-stage setting
for them. Soon afterwards, the trial commences again, with Jakob com-
menting to the researcher: “Now we get to see if someone made a request
for disqualification or not”.
Up until here, we have seen how ‘situated adaptation’ requires emotional
astuteness to see when strategic non-interaction (display of disinterested-
ness) becomes preferable over strategic interaction (sympathy exchange),
and vice versa, in the ongoing professional interaction. The marking of dis-
tance and discretion turns the waiting hall into a front-stage arena, while
closeness and emotive-cognitive exchange make it a collegial backstage set-
ting. This way, the prosecutor and the defence lawyer can maintain a good
relationship without its affecting the adversariality of their roles in court.
We have also seen how situated adaptation is necessary in the front-stage
arena to maintain a deferential demeanour towards the judge, a theme that
we will elaborate in the next section.

Adjusting to the judge: situated adaptation, emotional toning

Back in the courtroom, it is the chief judge who is now presiding. Yet no
one comments on the fact that the previous judge has been replaced. The
presiding judge himself does not explain his presence, and the prosecutor
now includes the damages in the claims he presents, without any indication
of the backstage decision that they were to be pursued in a separate civil
trial instead. Jakob reads out the charges very fast, like a radio talk-show
host. After the trial, he explained that he knew the chief judge to prioritize
speed. Therefore, he read the charges “like a sports commentator”. Jakob’s
decision here represents another instance of the dramaturgical feature ‘sit-
uated adaptation’, through which, in this case, both the prosecutor and the
defence lawyer swiftly adjusted to the presence of the new presiding judge.
 The dramaturgy of court emotions 101
Such an adjustment forms an inherent part of the prosecutors’ and de-
fence lawyers’ job. It includes both the preparatory aspects of their work –
trying to anticipate how patient and lenient the judge assigned to the case
might be – and the performance part of it in the courtroom, where the actual
situated adaptation, tuning in with the mood or style of the present judge,
takes place. Unfamiliar judges may therefore cause insecurity, even among
experienced legal professionals. As explained by one defence lawyer:

If I see a new judge, I never know what to make of him, I need to tune
in to that person. Is there something sharp, edgy, irritable? And if there
is something edgy, I back off. Because I know that if I start fighting in
court, there is only one loser, and that’s my client. If he’s annoying, or
I’m annoying, it will cost him: he’ll get a few extra months or something.
It’s not like “the lawyer is annoying, so I’ll send his client to jail”, but it’s
always human beings who judge, so you have to think about that. They
represent a wide range of options, and a wide range of values.
(Allan, defence lawyer, 65+)

Allan’s statement highlights that empathy, emotional tuning in, is impor-

tant not only between legal professionals and lay people but also between
the legal professionals and in particular towards colleagues with higher
rank (see also Keltner et al., 2003).
Back to Jakob’s trial, the prosecution claims that when the victim came
home, his front door was open and there had been a burglary, and that the
police had found the defendant’s fingerprints on a jar where the jewellery
used to be kept in the house. Jakob shows some police photographs of the
house in the condition in which it was found after the burglary. The defence
denies all the allegations. The defence lawyer explains that the defendant
admits to being at the crime scene, but denies having stolen anything, which
means someone else must have been there after his client left. The trial con-
tinues with the cross-examination of the victim, who, due to his advanced
age, talks slowly and uses a hearing aid:

The court clerk asks the old man to talk closer to the microphone. The
judge smiles and asks him gently if he can hear what they say. The ­v ictim
describes his wedding rings that now were nowhere to be found, looking
up at the court he says: “I don’t know if they still have them?” The judge
looks confused, replies: “Pardon me?” The old main explains: “If my
rings are still around.” The judge meets his eyes, gives a thoughtful nod,
and turns to the prosecutor.
(Observation, theft, prosecutor Jakob, 50+)

Lay and professional expectations in a trial clash in this excerpt. The victim
hopes that he might get his rings back during the same day. His question re-
veals affection and innocence in a manner that breaches the conventions of
102 The dramaturgy of court emotions
the court ritual, but the judge nods anyway, as if it would sometimes happen
that people get their stolen things back during the court hearings. Turning
to the prosecutor, the judge instead looks startled, with raised eyebrows,
uttering:

“But [the rings] were not included in the claim.” The prosecutor objects
that they were indeed, with the judge then responding in an irritated
and slightly louder voice: “How can I possibly guess what the claim in-
cludes!” Turning away, he then moves on to the examination of the de-
fendant: “Can you describe this visit of yours in the house?” Accused:
“What do you want me to say?” The judge pauses shortly, raises his
eyebrows in surprise, and responds: “Well, what did you do there?”
(Observation, theft, prosecutor Jakob, 50+)

Lawyers’ and prosecutors’ emotional adherence and behavioural adapta-

tion to the judge have a limit contingent on their sense of professional integ-
rity. Prosecutors in our material described their resistance to, and irritation
about, judges who interfered with their work, such as when interrupting
their ongoing examinations or, as in Jakob’s case, suggesting that they had
not provided to the court something required or necessitated. In keeping
with the feeling rules of the emotive-cognitive judicial frame, and because of
the need to show ritual deference towards the judge, any such irritation on
the part of the prosecutor must nonetheless be managed and its expression
toned down. Thus, when the judge above expressed irritation at Jakob’s not
having sufficiently itemized his client’s claim, Jakob insisted the opposite
to be true, yet retained his calm demeanour. Afterwards, however, he de-
scribed having felt “crossed”:

[Laughing] That made me a bit cross, actually. I managed to swallow

[my anger], but I still think the judge was just all wrong…. If someone
steals seven hundred different things from you, you don’t specify these
in detail; you write that they stole things worth so-and-so much. […]
And I was about to adjust the amount [due to the changed claim], so say-
ing that was just totally unnecessary! It caused my heart to beat faster
for a while! [Laughs].
(Jakob, prosecutor, 50+)

Even as Jakob grew angry, his emotional reaction was stronger than what he
let on; in other words, what he performed was an action of toning down his
emotional expression. Something similar, moreover, might have been going
on with the judge: as we saw, he delivered two short comments to Jakob, of
which he raised his voice in one, but then immediately let the matter go, in-
dicating that he managed his emotion of irritation. “Emotional toning” will
be elaborated with regard to its use both by judges and by prosecutors in the
last section of this chapter.
 The dramaturgy of court emotions 103
To return to the courtroom in Jakob’s trial, the accused now gets to tell his
story. According to him, he was selling his motorcycle, and a potential buyer
showed up, wanting to have a test ride, but then just drove off with his bike.
The accused thought he knew the thief and that the person lived in the vic-
tim’s house, so he went there to confront him. Once there, he broke into the
house and rummaged around it, without, however, taking anything. When
the accused is finished, Jakob refrains from examining him. As he later ex-
plained, there was really no reason, in his view, to “dig into a story that’s so
obviously implausible”. Through his bold decision not to ask any questions,
Jakob showed self-assurance brought by experience, although the example also
conveys a particular prosecutorial style. Adapting to the judge’s time-efficient
and authoritative manner favouring succinct examinations, the prosecutor re-
frained from unnecessary questions. In this particular case, Jacob’s decision
was made all the more easier by the fact that the defendant’s version of the
events was so manifestly false that no questions were actually needed.
All the same, Jakob’s adaptation strategy forces the defence lawyer to ask
his client more questions than he normally would. The defence lawyer now
asks his client about his fingerprints that were found on a jar in the victim’s
house. The defendant explains that he broke into the house looking for keys to
the house’s garage, thinking the thief had hidden the stolen motorcycle there.
The photos from the victim’s house, presented by the prosecutor at the outset
of the trial, clearly show an elderly person’s home, and, indeed, the victim is
nearly 90. The defendant’s story thus appears absurd in several respects, as
also the judge more or less explicitly makes clear in his additional questions:

“If you wanted to get into the garage, why did you not just break into
it, and not the house?” The accused says that the door to the garage
was made of steel, to which the judge responds, slightly amused: “I see;
it was difficult to break through?” The examination is over. The judge
turns to the prosecutor: “I might have missed something: what were the
new damages again?”
(Observation, theft, prosecutor Jakob, 50+)

Contrasting with the first time the judge raised the question of the damages,
this time he is calm. The examination of, and focus on, the defendant during
the intervening time period has given both the judge and the prosecutor
time to manage their irritation and anger. The judge now begins to read
from the accused’s personal file and the prosecution and defence both pre-
pare to give their closing statements.

Tacit signals
The prosecutor delivers his statement in a fast but steady voice. Now he also
adjusts the dates for when the crime allegedly took place. This move causes
trouble for the defence lawyer, who has built his closing statement around
104 The dramaturgy of court emotions
the original dates, as appears from the following excerpt from the defence
lawyer’s summary:

My client has stated that he was at the crime scene for a different reason.
The prosecutor bets all his money on one horse when he says that the
crime took place on Sunday the 1st of June [pausing shortly]. Well, in
his closing statement the prosecutor just now changed the dates, saying
now that it could have been any time between Sunday and Tuesday.
(Observation, theft, prosecutor Jakob, 50+)

The only card the defence lawyer had left to play was the fact that the pros-
ecutor’s original time for the break-in was too narrow to cover the possible
time frame of the crime. Since the prosecutor acknowledged it, adjusting the
date in his closing summary, the defence had nothing else to go for. The de-
fence lawyer’s acknowledgement of the prosecutor’s amendment while still
keeping to his original argumentation gives a ‘tacit signal’ to the court and
the prosecutor that the lawyer knows it is a lost case.
Tacit signals of this kind are another dramaturgical feature, similar to
the subtle emotional communication discussed earlier. What these signals
communicate is, to use Goffman’s terminology, role distance: following a
role-appropriate presentation while showing disbelief in that same presenta-
tion (Goffman, 1961). Legal professionals do not express distance from their
role as such, but from conflicting aspects of that role. In principle, defence
lawyers ought to remain loyal to their clients, but their clients’ wish to han-
dle the case might not agree with the lawyer’s professional advice. When cli-
ents refuse to cooperate, their lawyers commonly chose to prioritize loyalty.
Thereby, they satisfy the client’s expectation of what a defence lawyer should
do: justice is seen as having been done even when it does not hold from a legal
perspective. As we will see in Chapter 6, tacit signals are, however, also used
by prosecutors hoping to achieve objectivity without risking collegial loyalty.
Shadowing prosecutor Jakob, we have observed how prosecutors, to mark
their objectivity, carefully control their relation to the victims. We have seen
trusting collegial relationships between defence lawyers and prosecutors to
be handled carefully in fleeting collaborative constructions of backstage/
front stage through the balancing between physical distance and displayed
disinterest, on the one hand, and physical closeness and expressed mutual
sympathy exchange, on the other hand (Clark, 1987). Doing this did not
appear to affect the parties’ antagonistic performance front stage, although
it did strengthen the defence lawyer’s confidence when acting against the hi-
erarchically superior judge. This intervention was stubborn in character, yet
performed deferentially by using the pretext of a new damage claim, allow-
ing the defence lawyer to avoid publically challenging the judge’s evaluation
of his own capacity. We have seen, thus, how judicial rank and hierarchy
shape subordinate legal professionals’ interactive strategies, not merely to
save themselves from shame but also to save the face of justice.
 The dramaturgy of court emotions 105
The case of prosecutor Jakob has also shown us how irritation is expressed
and mastered front stage through the dramaturgical feature of ‘toning down’,
and how experienced prosecutors can withstand judges’ intimidation efforts.
It has, furthermore, directed our attention to the dramaturgical feature of
‘situated adaptation’, in which both the defence lawyer and the prosecutor
flexibly adapted to both the first and the second judge. Jakob did so with a
self-assured impression management technique demonstrating all the qual-
ities recommended for prosecutors earlier on, in our Chapter 2 (p. 50), by
chief judge Ingvar. Finally, our case with prosecutor Jakob introduced the
phenomenon of ‘tacit signals’, drawn upon in this case by the defence lawyer
in order to communicate professional distance from his performed loyalty to
his client. In the following section, we switch from the prosecutor’s perspec-
tive to that of a judge, analysing what we found shadowing the fairly experi-
enced judge Margareta before a hearing about appealing a restraining order.

The judge’s perspective: backstage preparation and front-stage

presentation
Judge Margareta stands in her office in front of a computer with a court
clerk right next to her, both dressed up for the court, wearing dark suits.
Margareta is a permanently appointed judge in her 40s. The hearing she is
to preside over this morning is on appealing a restraining order. Margareta
herself explains what is going on:

“We’ve just realised this hearing won’t be happening. I just called the
prosecutor, who told me that the defendant is in detention [so he cannot
attend the hearing], and that we’re the ones who put him there”. She
makes a face showing how embarrassing this is, as if she doesn’t know
what’s happening in her own court.
(Observation, restraining order, judge Margareta, 40+)

The accused, moreover, is in detention for violating the existing restraining

order, the one he here wanted to appeal. What this means is that, on the
one hand, he cannot be physically present at court today, and, on the other
hand, as Margareta explains, it would now be better to combine the two
separate hearings; the criminal case about the violation of the existing re-
straining order and the appeal of that same order could both be dealt with at
the same time on a later occasion. Margareta’s embarrassment derives from
her lacking information and the poor coordination at her court. Conjoining
the two hearings would restore the order and save both resources and the
court’s face. Professional judges’ sense of pride for representing the court as
such and justice in general tends to make them sensitive to fractures in the
facade of perfectly rational justice (see, e.g., Chapter 6, p. 160).
Complicating judge Margareta’s proposed solution, however, is the fact
that the prosecutor prefers to get the appeal decision today. This is because
106 The dramaturgy of court emotions
its outcome will have an effect on how the prosecution will handle the crim-
inal offence case. Before deciding, Margareta wants to talk with the defence
lawyer appointed to the criminal case.1 But time is running out. Margareta
looks at her watch and decides to leave her office and go down to the court-
room; “We need to call them now”. By ‘them’ she means the participants in
the hearing: the prosecutor and the victim. The latter has called the court to
tell of her being afraid of the defendant, but has been talked into coming to
the court anyway, for the appeal hearing.
On the way down, Margareta tries to reach the defence lawyer by phone.
When in the courtroom, the latter finally answers. Margareta explains the
situation to him, informing him that the prosecutor wants to have the re-
straining order hearing now and that she wants the defence lawyer’s opin-
ion on his client’s behalf. The defence lawyer’s reactions cannot be heard,
but the judge responds “Mmm; no, OK, I understand” in a polite voice,
then hanging up. As we then learn, the defence lawyer did not even want
to discuss the appeal case: he had been appointed for the criminal case and
nothing else.
Although, the defence lawyer was correct from the strictly legal perspec-
tive, the possible merging of the two cases made Margareta want his opinion
to safeguard his client’s perspective on the issue. Refusing this, the defence
lawyer in Margareta’s view did not live up to her expectations on legal pro-
fessionalism. In her follow-up interview, Margareta expressed resentment
towards the defence lawyer, explaining that some lawyers “refuse to say an-
ything if they cannot charge for it”. Yet, Margareta had revealed no irrita-
tion at all when talking to the lawyer on the phone; since the relationship
between them during that conversation remained front stage in nature, she
toned down her expression.
As we saw in prosecutor Jakob’s trial, it is not uncommon for prosecutors
and lawyers to complain about hearings’ beginning late. However, as we see,
looking at it from Margareta’s perspective, judges may be busy handling a
multitude of tasks before any hearings have even begun. Several things can
go wrong, and it happens often that judges decide to cancel hearings in the
last minute owing to various complications that cannot be quickly resolved.

Focus and strategic emotion management

It is now ten minutes past the planned starting time of the hearing. Marga-
reta pours herself a glass of water and turns to the lay judges and the court
clerk, saying: “Let’s see; I just need to pull myself together a bit”. Contrasting
with lawyers’ and prosecutors’ fluent shifts between performing in backstage
and front-stage roles, judges put on a stone face immediately when the par-
ties are called in. After all the commotion backstage, Margareta thus wants
to take a few seconds to recentre her focus. In the follow-up interview, she
talked about these shifts between being “formal and stiff” in her front-stage
appearance and being spontaneous and expressive backstage. She described
 The dramaturgy of court emotions 107
it as a deliberate change between a private and an authoritative persona, ef-
fectuated as an embodied experience: “When I walk down the stairs, I kind
of just – well, I re-focus a little. I just need ten, fifteen seconds…. Leaving my
office and walking to the courtroom, I just forget [my private self]”.
After a few seconds of silence in the courtroom, Margareta explains to
the lay judges why the normal court procedure has today been altered. Ordi-
narily, before a hearing, the professional judge, the lay judges, and the court
clerk would meet in the courtroom, with the judge briefly summarizing the
case and directing the emotive-cognitive focus of the lay judges to the key
issues. To help them concentrate on their task at hand, judges often tell jokes
or use cheerful imperatives like “Are all on board!” and “Let’s roll!”
Professional judges commonly consider lay judges as special targets of
their strategic emotion management efforts for a variety of reasons. Marga-
reta described it as follows:

You’re terrified that a lay judge will do something inappropriate.

I mean, that they say something that might disqualify them. What
makes me most afraid, though, is that they’ll say something that can
hurt one of the parties. That’s what I fear the most. […] I can prepare
them by saying something like “the defendant might appear to be a bit
under the influence of drugs, and he can be a bit angry, but we’ll pull
this through”. So they won’t roll their eyes when I allow the defendant
to go beyond the boundaries a little.
(Margareta, judge, 40+)

The management of lay judges’ emotional expressions during the trial is

considered necessary because lay judges are frequently elderly and often fail
to keep a stone face and sometimes even fall asleep during trials, as corrob-
orated by our own observations in court. Such misconduct influences the
professional judges’ self-image as those embodying justice and thus evokes
shame on the court’s behalf.

Front-stage strategic empathy

Empathy is achieved by imagining the situation of others, emotionally tuning
in with another person. While thus always including emotions, empathy is
not an emotion in itself but “the capacity to read and understand someone
else’s emotions” (Wettergren and Bergman Blix, 2016: 22). The dramaturgical
feature that we call ‘front-stage strategic empathy’ implies taking in enough
of the other person’s perspective to be able to anticipate and prevent that
person’s emotions from interfering with the rational procedure of the trial.
Before Margareta tells the clerk to call in the parties, she asks him: “Can
you make sure that the video screen is on either me or the prosecutor? The
victim doesn’t want the accused to see her”. Since the accused is in detention,
he will be participating via a video link and Margareta knows of the victim’s
108 The dramaturgy of court emotions
being afraid of him. The clerk nods, unlocks the doors, and calls in the parties.
The victim and prosecutor enter and the clerk tries to turn on the video link.

When everyone has entered, Margareta smiles briefly and thanks the
prosecutor and victim for not sitting side by side [so they do not show in
the same video frame]. She says: “The video image of the accused will be
rather big” [directing her words at the victim, Margareta says this in pass-
ing without looking at her]. The video connection fails to work, however.
The clerk picks up his phone and calls someone. Margareta shuffles her
papers. The prosecutor starts whispering about something with the vic-
tim. Eventually a tech support person enters, and he and the clerk try to
solve the problem. Margareta looks at the prosecutor and says: “Sorry”.
The prosecutor replies: “No problem. We all depend on technology;
I know what it’s like to sit in the office, trying to get the thing to start”
[laughs briefly]. Margareta smiles back: “We’ll take a short break while
we try to get this to work.” At that very moment, the video comes on.
(Observation, restraining order, judge Margareta, 40+)

The thanks directed at the victim and the prosecutor for not sitting next
to each other, and the warning given to the former that the projection
“will be rather big”, are both examples of empathic perspective-taking by
­Margareta. In order for the trial to go smoothly, the judge needs to employ
empathy, and, having shadowed Margareta, we knew that she had openly
reflected about the victim’s position and talked empathically about her on
more than one occasion in the court’s backstage area.
Expressing empathy in an instrumental by-the-way manner is a ­common
way for judges to manage lay people in court. The heavy pressure on the
judges to perform objectively often forces expressions of empathy to be
put forward rather inconspicuously. This is to avoid appearing partial,
­Margareta cannot both take precautions to protect the victim vis-à-vis the
defendant and talk to the victim in a gentle and understanding manner –
that would have been too conspicuous. The same is true about lay people
engaging the judge in an interaction concerning their personal problems or
emotional outbursts (e.g. crying) during a hearing. Offering a short break or
a glass of water, but with one’s stone face on, is a standard response from the
judges on such occasions.
On the other hand, in practical matters not directly related to the conflict
between the parties, empathy can be displayed in more varied ways. In the
case with prosecutor Jakob above, for instance, the victim wore a hearing
aid, resulting in the judge gently asking if he could follow the procedure,
with the question accompanied by a friendly smile. More varied displays
of empathy are also possible when judges, towards the end of the trial, ask
defendants about their personal life situations in general.
Apart from pressure to moderate their empathic expressions, legal profes-
sionals also face a risk of becoming numb to the tensions lay people can feel.
 The dramaturgy of court emotions 109
Over time, all legal professionals come to witness emotionally harrowing
cases and encounter people caught in dreadful situations, and it can become
difficult for them sometimes to empathize with victims of more minor of-
fences. Below is an example of a case in which the prosecutor and the judge
cooperate to assist the victim, although the prosecutor believes the victim to
be exaggerating her emotional expressions:

Outside the courtroom, the prosecutor talks to the victim whose voice
keeps breaking, telling her that “Crying is allowed; if it starts to feel bad
in there, just look at me”, pointing at her own eyes. During the hearing the
victim begins to cry. Lay judge 1 hands the prosecutor a roll of kitchen
paper; the latter stands up and tears off a piece that she gives to the victim.
The judge asks dryly, “Do you need a break?” but no one responds. After
the trial the prosecutor explains that she did not really feel so sorry for the
victim: no reason to take a break as she was not a victim of abuse or rape.
(Observation, unlawful threat, prosecutor Faida, 40+)

As seen from this example, empathic perspective-taking can be performed

on the surface, routinely and strategically, to further a smooth procedure
(cf. Hochschild, 1983).

Dramaturgical stress
Meanwhile, in the hearing with Margareta, the technology is finally work-
ing. Margareta asks the accused his name and personal identity number:

The accused replies: “Can you speak English?” Margareta falls silent.
Lots of thoughts seem to pass through her head. She looks at the prosecu-
tor, then back at the accused, and says: “No I can’t; regardless of whether
I can speak English or not, I still can’t do it here. Do you need an inter-
preter?” She leafs through her papers. After a while, she smiles. She and
the prosecutor exchange gazes. Margareta: “Now I am going to speak
to the detention: We will take a break and try to find an interpreter”.
They disengage the video link. During the break, while walking out, the
judge says: “Earlier, we [the researcher and the judge] talked about shame
and embarrassment, and this represents one such situation. I feel embar-
rassed on behalf of the court’s failure…. We should do it right”.
(Observation, restraining order, judge Margareta, 40+)

The judge’s sense of shame on behalf of the court comes to expression clearly
in this quote. It serves as an example of immediate backstage ventilation of a
strong emotion, first experienced but toned down front stage. The efforts to
find an interpreter, however, failed, and Margareta went back to the court-
room to ultimately – after spending the whole morning combatting one un-
expected obstacle after another – postpone the hearing.
110 The dramaturgy of court emotions
According to the Swedish CJP, all hearings are to be conducted in Swedish,
while non-Swedish-speaking persons participating in the trial are entitled
to an interpreter (1942: Ch. 5, Art. 6). That this need for an interpreter had
been overlooked was, along with the failure to keep record of the fact that
the accused was in detention for violating the restraining order he was to
appeal, one more mistake for the court that morning. At the same time,
Margareta knew the victim to be afraid of the accused and of coming to
court. The unexpected demand for an interpreter, front stage, thus forced
her to manage the failure of the court front stage with the accused, while
being well aware of the consequences for the victim.
As we have seen, organizational challenges and mishaps are part and parcel
of the work with pulling off hearings, with the court’s backstage area serving
as one arena, where the issues are being continuously solved. The situation
arising front stage added extra pressure on Margareta. According to Goffman,
embarrassment is a “generic property” of interactions (1956); the inability to
fully predict how a face-to-face encounter will evolve implies a risk of failure
in living up to interactional expectations. Along these lines, we argue that the
double pressure of following procedural correctness while being aware of the
“realness” of the situation can produce ‘dramaturgical stress’. According to
­Peter Freund, dramaturgical stress arises from threats to the self or a group’s
boundaries, in effect endangering their ontological security (1998: 268).
Dramaturgical stress in this setting can be defined as the emotional effect
on legal professionals that arises when the strictly set up court ritual and
the legal encoding do not entirely achieve the reduction of real complex-
ity and emotional silencing needed to uphold the image of objective, emo-
tionless justice. Returning to Tilly’s analysis of the contradictory logics of
stories and codes “[c]odes emerge from the incremental efforts of organiza-
tions to impose order” (Tilly, 2008: 125), but people usually turn to the law
not only for order, but for the truth as a moral evaluation of real situations
(Rosenbaum, 2005). When the quest for the acknowledgement of this “re-
alness” of the situation destabilizes procedural correctness, a glitch occurs
that signals a disconnect between the performance of justice according to
the emotive-cognitive frame and the performance of justice according to
lay people’s expectations. The emotional orientation of legal profession-
als is to perform the emotive-cognitive frame as if it were compatible with
the common sense of justice, thereby satisfying both. The glitch disrupts
this emotional orientation. Importantly, the ensuing embarrassment, as de-
picted by Margareta, does not primarily fall back on the individual, but on
the court, or the legal system as a whole. When Margareta made sure that
the victim came to court despite her fears, she put the court’s “honour” –
and, in a longer perspective, the public’s trust in the legal system – at stake.
Regardless of whether it was her or someone else’s responsibility to ensure
these things worked, she needed to face the situation in court and resolve
the problem in the here and now, and the failure caused professional shame,
not only for the judiciary, but for Margareta herself as embodying the insti-
tution of the judiciary.
 The dramaturgy of court emotions 111
When prosecutors, as representatives of the state, go to court they em-
body the legitimacy of the legal system too. The quote below offers an exam-
ple of how truth claims are part of the “realness” that causes dramaturgical
stress. It is from a murder trial in which the accused had already admitted to
killing a young woman. The victim’s relatives (notably her father) sat close
to the prosecutor during the entire hearing, which put visible pressure on the
latter to extract “the truth” about the event and secure the toughest punish-
ment, while still ensuring an impeccably correct legal process:

For me, it was very important to be able to get through the trial without
breakdowns [from the victim’s family]. That was my goal: no emotional
breakdowns. It could have been cries and screaming, or [the victim’s
father] being escorted out and thus missing the trial for his murdered
daughter. He really wanted to be there for it, to learn what had hap-
pened and what the [defendant’s] motives were for executing his young
daughter. I had the victim’s father and his relatives sitting behind me
and I felt it; it was horrible, they hated, really hated [the defendant],
they wanted to see him executed.2 And I really had to think about my
behaviour, how I’d formulate questions and so on, because they noted
every single detail. Every mistake I’d make and every poorly formulated
question could have enormous consequences, leading to emotional out-
bursts and so … it was an extremely demanding hearing.
(Henrik, prosecutor, 50+)

Feelings of dramaturgical stress are usually described in situations when pro-

fessionals, through empathic perspective-taking, reflectively acknowledge the
“realness” of the situation: that it is not just another trial, it is a hearing that
actually and quite concretely affects people’s life. In Henrik’s example above,
the question was about a horrific crime, but the same phenomenon also oc-
curs in less emotionally charged cases, as we saw in Margareta’s hearing.
Shadowing prosecutor Jakob and judge Margareta, we have identified
and examined the dramaturgical features of situated adaptation, tacit sig-
nals, front-stage strategic empathy, and dramaturgical stress. We also con-
sidered examples of ‘emotional toning’ (toning down). In the final section
of this chapter, we will elaborate a little more on emotional toning as an
emotion management technique crucial to performing the feeling rules of
the emotive-cognitive judicial frame.

Emotional toning
Encountering the feeling rules of the emotive-cognitive judicial frame, legal
actors in court learn to both ‘tone down’ and ‘tone up’ emotional expres-
sions of felt experience depending on their role appropriateness. The result-
ing adjustment leads to a habituated incongruence between the experience
and the expression of emotion that seems to go mostly unreflected by the
legal actors themselves.
112 The dramaturgy of court emotions
For judges, toning down the emotional expression in relation to one’s expe-
rience is very common. As ought to be clear by now, judges express their feel-
ings subtly, if at all, when they perform front stage. Judge Margareta above,
for instance, toned down her expression of the emotions (of dramaturgical
stress) she experienced when realizing, at the very outset of the proceedings,
that she would have to cancel the trial after all. We remember that she was
first silent, keeping her stone face, then exchanged looks with the prosecu-
tor, engaging in emotional communication with another legal professional
who, too, was bound by the feeling rules of the emotive-cognitive frame. As
we saw in the section on emotional communication, legal actors are highly
perceptive of one another’s looks and other small signs of emotional expres-
sions. Finally, Margareta smiled. Smiling, even when acting under consid-
erable dramaturgical stress, was a poker-face strategy. As we saw above, the
poker face is usually resorted to by prosecutors, to help them conceal their
felt emotions by expressing different kinds of emotions. For judge Margareta,
adopting the poker-face strategy indicated that she had trouble keeping her
stone face. Barely out of the courtroom, she gave full expression to her sense
of shame and anger that she had toned down for her front-stage performance.
Toning up emotional expressions may at first glance look like an emotion
management strategy misplaced in the court context. Yet, strategic empathy
to ensure a smooth procedure tends to demand precisely that. In the case
with prosecutor Faida (p. 109), we saw how this sometimes happens. Prose-
cutor Faida empathized with the victim, understanding her perspective, and
yet her actual level of emotional engagement remained lower than the one
she expressed to the victim both outside and inside the courtroom.
The adversarial nature of the court process, moreover, calls for some emo-
tional expression of antagonism between the defence and the prosecution, even
if such expressions tend to remain subtle. As we saw in the case of prosecutor
Jakob, in spite of any such antagonism, defence lawyers and prosecutors may
have a trusting collegial relationship. Backstage the lawyer confessed not be-
lieving in his client’s story, but front stage, he nevertheless sternly contested the
evidence presented by Jakob. Their antagonistic relationship in the courtroom
was, in other words, toned up to satisfy lay people’s expectations of how the re-
lationship ought to be expressed. However, lawyers who “exaggerate” in their
display of antagonistic emotive-cognitive confrontationality in the courtroom
are generally disliked by both judges and prosecutors, since they disturb the
emotional silence that the courtroom setting, the script, the legal encoding,
and the dramaturgical features are all designed to uphold. They also unsettle
collegial interactions and collaboration, by forcing other legal professionals to
repair the damage to the image of objective emotionless justice.

Conclusions
In this chapter, we have approached the court as a theatre, following
professionals backstage, front stage, and semi-front stage to see how the
performance of unemotional justice is actually done among the different
 The dramaturgy of court emotions 113
actors in the court. We have highlighted the courtroom (stage), the CJP
(script), and the legal code (language) that frame, direct, and articulate
(non-)emotion. The legal actors need to perform the ritual or drama, each
according to their own specific role. To do this, they need to emotionally
tune in and communicate both openly and tacitly to ensure that they
are able to move the process forward in a procedurally correct manner,
collaborate around challenges and obstacles, and produce the emotional
authenticity needed for the lay audience’s trust in the performance of
justice.
‘Emotional communication’ occurs on two levels: one that the actors use
to alert or reassure one another (e.g. through looks), and another that is
intended for the audience to pick up (e.g. through the deployment of stone
face, poker face, and bodily gestures). It is on this latter level that the ad-
versarial antagonism between the parties is played out, as conceptualized
through the dramaturgical feature we call ‘emotional toning’, indicating
the process of toning up antagonistic feelings. In contrast, the impact of
surprises and unexpected events unsettling the legal actors in court tends to
be toned down. The actual magnitude of the experienced emotions may not
be seen at all until their airing is allowed backstage. Other identified fea-
tures of the drama were situated adaptation, showing in particular the agile
and quick adjustment to tacit signals and emotional communication, and
tacit signals that bifurcate verbal communication into double meanings;
as an example, we saw how professional distance to the performance one
feels bound to uphold in court could be communicated (the defence lawyer
in the case of prosecutor Jakob). Tacit signals are often about safeguarding
professional pride. Front-stage strategic empathy, on the other hand, was
discussed as a particular feature of the court drama to better anticipate and
even avert potential obstacles to procedural correctness. This was observed
to be particularly necessary for the judge although all legal actors engage in
it to further their particular goals in the trial. Finally, dramaturgical stress
was identified as a phenomenon occurring when, for various reasons, the
emotive-cognitive judicial frame cracks under the pressure of lay people’s
needs for, and expectations on, justice. Justice, according to the frame, is
not about the “truth” or what has actually happened; it is about the facts
and evidence and their judicial value. It is, however, also about the perfor-
mance of pure rationality. Most importantly, however, as should be clear by
now, that performance is not unemotional at all; on the contrary, it relies on
emotion and continuous collaborative emotion management.

Notes
1 In the case of the appeal of the restraining order, the accused is not appointed a
defence lawyer. Decisions about restraining orders are made by the prosecution
office but can be appealed to the district court.
2 Sweden does not have death penalty. The maximum prison sentence is life, which
can be converted to a time-limited sentence.
5 Power and status in court

We have a huge amount of power and it has to be exercised humbly, we must

use power because that’s what people want, why they come here, to get a
decision. And it’s really important to dare to take decisions, because some
judges don’t […] Some judges think it’s unpleasant [to take decisions, use
power], they’d rather someone else did it, they procrastinate and nothing
happens, and that’s bad.
(Christer, chief judge, 50+)

T
he above quote from chief judge Christer illustrates some emotive-
cognitive aspects of judicial power such as courage (“to dare”) and
confident responsibility (“we must”) to use power, while remain-
ing humble. Christer also talks about the discomfort (“it’s unpleasant”)
of power that some – notably other judges – experience, to the effect that
“nothing happens”. Background emotions of courage, confidence, and
humbleness are thus seen as conducive to using power, while unease and
anxiety are disruptive. As we saw in Chapter 3, the increased workload
pushes for more and faster decisions for both judges and prosecutors and
this, as combined with the power effect of these decisions, put individ-
ual capacities to confidently perform autonomy and independence to the
test. In Chapter 4, we also saw how continuous mundane decisions in the
course of a court drama may be fraught with unease and remorse (for
instance, dramaturgical stress). While judges are required to habituate a
comfort of power as part of their autonomous emotional profile, exercising
power itself is always bound up with a possible sense of guilt, remorse,
and – in a society where egalitarian norms are highly valued – even shame.
The legitimacy of power becomes key to a comfortable habituation of it.
Prosecutors also have much power, but their ability to exercise it is in sev-
eral ways circumscribed by their dependence on other professional cate-
gories, orienting them to use strategic emotion management to mitigate
power with status (“being liked”). However, the essence of prosecutors’
independence is seen when they sometimes use power in spite of losing
status (Abbott, 1981).

DOI: 10.4324/9781315306759-5
 Power and status in court 115
In this chapter, we examine judges’ and prosecutors’ emotions and emotion
management from a power and status perspective. How do the dynamics of
power and status in the courtroom influence emotions and emotion manage-
ment strategies? How do judges and prosecutors manage power in their work
roles? How do professional power and status shape judges’ and prosecutors’ in-
teractions with other professionals and with laymen? We begin with the issues
of judges’ autonomous power and then continue with the prosecutors’ bounded
independence and mitigation of power. In the end of the chapter, we examine
the emotional processes of inter-professional power and status challenges.

The autonomous judge: power issues

Judges’ power to pass judgment on the evidence presented to them by the par-
ties at the trial is absolute and uncontested (although other legal profession-
als may have differing opinions regarding the correctness of their decisions).
To facilitate this judges’ training emphasizes autonomy. Autonomy in that
context means the performance and embodiment of instrumental reason, the
maintenance of physical and emotive-cognitive distance from distractions
and affiliations, and self-assured structural security in one’s professional po-
sition. Once permanently appointed, judges’ autonomy is both manifested
in and safeguarded by the security of their work position, both their sym-
bolic and physical separation from the other professional and lay actors at
court, and the principles of immediacy and orality that dispose judges to pre-
side in court as if it was the first time the facts and narratives of the crime were
given attention within the justice system. Although, in the civil-law system,
judges do not make the law, they embody it. In this sense, the judge is power.

Power discomfort
Put simply, judges must feel, or at least be able to display that they feel, that
the power they exercise when passing judgment is indeed just and in accord-
ance with the correct judicial procedure. To comfortably inhabit power is,
however, not easy for all judges. Especially judges still in training can expe-
rience the imperative as quite uncomfortable:

I think it’s a bit … scary anyway. If you think about it … I think it’s …
a bit unreal almost, that you – if I think about how much power I have,
even after having worked just a couple of years, it’s like “Who am I to
sentence these people to jail?”…. But it’s not as if … I go around at work,
thinking “God, I’m so powerful”. I don’t think that’d be good.
(Estelle, associate judge, 25+)

The feelings described by Estelle are those of discomfort – of fear, swaying

self-confidence (“a bit unreal”) – having to do with her newly acquired position
of power as a judge. As pointed out in Chapter 1, power entails the possibility of
116 Power and status in court
guilt feelings for having misused one’s power (Kemper, 2011). Doubt, fear, and
failing self-confidence are emotions anticipating guilt, and the combination of
these and similar emotions we label ‘power discomfort’. Estelle also indirectly
refers to an emotion management technique of hers, which she resorted to in
order to deal with this discomfort: do not think about it too much. This echoes
a common saying among judges: “forget the passed” (dömt är glömt), which
they use to help them ward off doubt and remorse: what has been passed as
a judgment belongs to the past and should be forgotten. Organizational pres-
sure in the form of judges’ increased workload tends to reinforce this strategy
of backgrounding uncomfortable emotions of power. The emotive-cognitive
judicial frame also provides emotional orientations, such as pride and security
in judicial expertise, that silence any sense of power discomfort:

I don’t want my imaginary friend Charles, who always falls asleep in the
bathtub when he’s drunk, to be the pilot in a plane I am on, and I don’t
want to be judged by someone who sits at the same level as I do, someone
who has the education that I have. Instead, I want a person who under-
stands, someone who can see through it all and understands everything.
(Jens, court clerk, 25+)

Jens’s pilot analogy shows his way of justifying judicial power to be above all
technical: judges, for him, should have their power because they know how
to pass verdicts and sentences, just like pilots know how to fly. Being a clerk
himself, he still seems to harbour the belief that judging is about exercising
cognitive expert skills. Indeed, if it were that simple, sentencing people to
prison would not give rise to doubt and discomfort. But even experienced
judges in our material reported experiences of doubt. In the below quote,
judge Bente both illustrates this doubt and displays yet another technique
for managing power discomfort:

If we were to sit and think about every single decision for one hundred
years, then the parties will not get a decision. Especially in crime cases
where the defendant denies having done it we need to come up with a
decision relatively quickly, because it’s not good [to let him wait]. But
sure, sometimes it goes wrong. In fact, there’ve been cases where I’ve
had to call one of the parties to let them know that I think they should
appeal because my ruling was wrong [laughs]. I’m like [self-reproaching
voice], “What was I thinking?” So once, for instance, I called the de-
fence lawyer [when the appeal period was almost over and the defence
had not appealed] and asked him, “Did you look at the sentence?” […]
adding “You know you have to appeal within three weeks”…. I know
some colleagues disapprove when I do that, but I can give them that.
That particular time, the appeals court changed the sentence, so it was
good that I made that call [laughs].
(Bente, judge, 50+)
 Power and status in court 117
In the first part of this excerpt, Bente explains speedy decision-making as a
service rendered to the defendant. Her concern for delivering a reasonably fast
decision is thus motivated by a concern for the lay person’s well-being. This
can be seen as an extension of the good treatment policy, as Bente empathi-
cally imagines being in the limbo situation of the defendant. The good treat-
ment policy can thus be used as a technique to overcome power discomfort,
by putting aside doubt in the interest of a quick decision. But the empathic
concern is also, and equally, about assuming the responsibility of power. In
the second part of the excerpt, we see an extraordinary measure taken by
Bente (calling up the defence lawyer and telling him to file an appeal), because
she kept thinking about her decision even after the sentence was delivered:
she did not apply the “forget the passed” maxim. Bente experienced guilt
(“sometimes it goes wrong”) and remorse (“what was I thinking?”). Guilt and
remorse motivated her subsequent actions and revealed that she assumed re-
sponsibility for her mistake (“the appeals court changed the sentence”). At
the same time, her whole reasoning revealed security in her status position at
the court: first, through the fact that she admitted her mistake and, second,
in the way she reasoned about her extraordinary action to correct it (she did
not care becoming the target of collegial critique). The excerpt thus illustrates
professional confidence and status deriving from experience and a secure po-
sition, which allows for power comfort even when decisions go wrong.
On a similar note, another experienced judge, Erik, below speaks rather e­ asily
about his power, but emphasizes the caring responsibility that comes with it:

It’s like in Pippi Longstocking: the one who has very much power also
has to be very kind. […] If [the defendant] is a regular and knows what
to expect, that’s one thing, but first-time offenders and ordinary people
you have to handle with care.
(Erik, judge, 50+)

A defendant should understand the rationale of the power exercise. If this is

the case, and through care and gentle treatment, a judge may feel comfort in
exercising power. Erik’s reflection echoes Bente’s account to the extent that
it speaks about assuming the responsibility that comes with power. Comfort
in power, we may therefore conclude, relies on awareness of power discom-
fort, because it keeps the judge attentive to the seriousness of possessing
power and thereby opens up for critical reflexivity, empathy, and situated
adaptation in the power exercise.
A different way to deal with power discomfort was represented by judges
who did not associate their role with power at all:

I don’t see that I have any power, I cannot see how I could have any….
Well, I have the tools that I have – that I need, or which the legislators
have provided for me, to implement my task.
(Simon, judge, 60+)
118 Power and status in court
Simon dissociates himself from the power invested in the role of the judge,
which he sees merely as a function (tool) of someone else’s (legislators’) power.
This is a bureaucratic approach to power (Arendt, 1977), and it is essentially a
radical way to manage power discomfort, by denying personal responsibility.
Reducing one’s role to a cog in the machinery of law thus forecloses any dis-
comfort of power. In a civil-law system, the bureaucratic approach to power
lies ready at hand due to the idea that judicial power is about applying objec-
tive and stable laws. In line with this, even judges who assume responsibility
still argue to some extent that they exercise power according to objective laws
that they cannot influence or change, thus at least reducing the aura of power
discretion surrounding their capacity as judges (cf. Remiche, 2015).

Personalizing or depersonalizing power?

The aura of power – how power is perceived by the audience – is also subject
to different opinions among judges about how power should be embodied.
The positivist objectivity ideal – the God’s eye perspective – pushes towards
depersonalized power. This is to say that ideally any judge will exercise
power in the exact same way, which reduces the importance of the person
behind the stone face: “We are supposed to be a grey mass, and it shouldn’t
matter if it’s Pia or Mia who’s sitting there, it should be objective [laughs
slightly]; that’s the whole idea, not to be individuals” (Kristin, associate
judge, 30+). The ceremonial elevation of the judges’ bench, the stone faces,
and the fact that they remain seated when people enter and until everyone
has left accentuate depersonalized power. The earlier quoted court clerk
Jens elaborated on how this ought to strengthen the court’s legitimacy:

You are sitting, literally looking down at the two parties. And I think
that’s a way to emphasize that it’s the justice who decides. I don’t know
if I think that that’s all wrong. In the Swedish culture, hierarchy is
something ugly, but in some circumstances hierarchy is needed, and in
court hierarchy is needed…. It’s symbolic in a way. You don’t want to
be judged by – I don’t know if you can say it like this – judged by your
peers … you want them to be almost superhuman.
(Jens, court clerk, 20+)

Interestingly, the notion of being judged by an elevated and superhuman

God’s eye disregards the presence of the lay judges, who actually represent
being “judged by your peers”. In this, we can sense a problem that the lay
judge system poses to those professional judges who take judicial expertise
to be the guarantee for the correct exercise of the power of law. Similarly,
judges who embrace this depersonalized ideal tend to argue that a judge
needs no instruments, or insights, other than legal expertise (Bladini, 2013).
Knowledge about the world – particularly the world of the accused or the
victim – would adventure the autonomy of the judge’s decisions. The God’s
 Power and status in court 119
eye ideal, which likely but not necessarily overlaps with the bureaucratic
power perspective, thus emphasizes the purity of the judge (cf. Abbott, 1981).
On the other side of the depersonalized vs. personalized power spectrum,
representation of state authority is instead associated with being part of so-
ciety, also as judge. Rather than the person disappearing behind the shield
of the state, the state becomes embodied and gets a face through its associa-
tion with a person. In the below quote, Sanna raises this point in connection
with the much-discussed issue of whether also Swedish legal professionals
should begin wearing gowns. Her points speak about the overlaps of per-
sonalized power with assuming responsibility for exercising power and the
exercise of power empathically:

There are many judges that are pushing this issue with gowns, and I can
tell you right away that if that happens, and I’ve told them this, I will
resign [slight laugh], though I’m probably quite alone in that. Because
then you really distance yourself, you become a position. You become
someone who’s not participating, who’s appointed by a celestial power
[laughs]. We’ve had a lot of discussions about this, and for me, this all
feels very strange. […] Judges need to keep up with the society. We need to
be able to talk to young people, we have to be able to talk to foreigners, to
understand. Try to understand how they live and their way of life.
(Sanna, chief judge, 50+)

Representation, according to Sanna, requires empathy for the people coming

to court, the ability to tune in emotionally to them. Empathy in general is an
ability that most respondents in our study, also the ones proclaiming distance,
described as vital to their profession. Empathy in this general sense is a key
term pertaining to the good treatment policy associated with the increased
focus on procedural justice, which indicates that empathy’s implications may
not be interpreted in the same way by all judges. While all our participants
embraced empathy, those advocating personalized representation, as demon-
strated by Sanna, felt that they were alone in their belief, suggesting that dep-
ersonalized representation of state power still prevails as a legitimate ideal.
As we saw, the embodiment of power as a personal responsibility was
geared towards empathy, as well as towards a personal responsibility for
how the law is applied in the end. There seemed to be a continuity between
comfortable power and personalized representation. Yet a bureaucratic
understanding of power could also be consistent with personal representa-
tion emphasizing empathy; this would mean insisting on a mechanistic
­power-application with a personally empathic face when empathy meant
taking care to properly inform lay people about the legal professionals and
the procedure, and heed their particular needs (a break, a glass of water,
napkins to wipe off tears). A bureaucratic understanding of power com-
bined with this type of personal representation is common in other state
bureaucracies (Wettergren, 2010).
120 Power and status in court
Indeed, the policy of procedural justice was introduced to counteract
the appearance of the courts as an impenetrable and unintelligible castle
of juridical expertise. The fact that the courtroom is a front-stage interface
between the people and the judiciary may once have induced respect in the
people, but in complex modern societies it no longer does so in every case.
Legitimacy for the court’s exercise of power may have to be won rather than
presumed. This puts judges in a tricky situation with regard to how far they
can stretch their power in the courtroom.

Limitations of power and low status: negotiating demeanour

While the decision-making power of judges is absolute, the actual power
of the judge to preside in court in a procedurally correct manner presumes
the ritual deference of the other legal professionals and the acquiescence
of the particular lay people present. Defendants to whom justice has low
legitimacy may have nothing to lose from literally obstructing the court’s
authority, as in the following case featuring a very angry defendant, kept
in detention, accused of wife abuse and breaching a restraining order. In
this case, not even his defence lawyer could calm the defendant, and it was
merely due to the circumstance that the trial had been cancelled several
times before, that the judge – on the request of the prosecutor – insisted on
carrying through with it. The detention guards were present in the room and
the judge had ordered them to release the defendant from his handcuffs. The
general atmosphere was thus not threatening, but still tense:

The accused howls: “This [whole justice system] is a catastrophe!” Judge:

“[First and last name of the accused], now, really, you must!” […] But the
accused seems to be out of control, he continues shouting that this is a
farce and a catastrophe and that none of his evidence has been included.
In the end, he is howling, bending over the table and pointing his finger
at the judge. The judge appears to be bracing his right elbow against the
armrest of his chair, making him lean slightly towards his left, which is
towards the side of the accused, as if he tries not to be blown away by the
accused’s shouting, while looking at the accused with an incredulous ex-
pression in his face…. Prosecutor: “But you know you have a restraining
order against you?” Accused: “Yes, but that didn’t stop her (meaning his
wife) from coming to fuck with me, now did it?!” He says that he is keen
on knowing “why you’re carrying on with this witch hunt against me!
You as a state office are a pure fucking joke!”…. He turns to the judge
again and shouts: “Are you a judge because you want to take notes for
the protocol or because you want to find out what’s right? Justice, man!!!”
(Observation, abuse, judge John, 50+)

As we see in this excerpt, the defendant strongly disapproves of the

way justice is pursued in his case. The legal system has no legitimacy in
his eyes and he thereby refuses to subscribe to the feeling rules of the
 Power and status in court 121
emotive-cognitive judicial frame; he is indeed shameless about breaking
these rules. While the judge’s voice remains calm and authoritative when
speaking to the defendant, his body posture reveals substantial effort to
uphold judicial demeanour and dignity. The prosecutor cooperates with
the judge in this effort by attempting to examine the defendant. The hear-
ing eventually had to be interrupted to remove the latter. In the break,
the defence lawyer, the prosecutor, and the judge let go of their compo-
sure and laughed together, expressing relief. They then agreed to proceed
with examining the witnesses without the defendant present. The exam-
ple demonstrates the limitations of the judge’s power in terms of punish-
ing lay people who bluntly refuse to abide by the feeling and behavioural
rules of the court. If defendants are misbehaving and interfere, the judge
can put them in another room where they can follow the hearing through
video link, but that is not possible when examining the defendant himself.
If another person misbehaves, the court can adjudicate for contempt, but
also that option is used with care due to the principle of public access to
court hearings (CJP: Ch. 5).
Status relates to unwritten norms, that is, to the norm system of which
the juridical professions are part. Connecting to this norm system means
respecting the status of the other/the judge and the status of oneself in the
courtroom (cf. Collins, 2004). In other words, if, in this case, the defend-
ant does not acknowledge the norm system to which the juridical profes-
sions and their power belong, it implies that neither does he acknowledge
the legitimacy of that system. He is there, he submits to it, merely be-
cause of its repressive power. Repressive power is illegitimate insofar as
it requires violence or the threat of violence to be effective; it does not
rely on people’s compliance with the norms that, in turn, produce respect
of the power holders’ status (cf. Arendt, 1998). This, in essence, is why
judges hesitate to venture outside the realm of their juridical power, put-
ting not only their own status at risk of its being rejected, but even more
so the legitimacy of the system, which they normatively embrace. Since it
is important for the judges’ image of themselves and the system that their
power is legitimate, it is crucial to uphold the court ritual as if power were
legitimate.
The illustration that several judges gave, demonstrating awareness of the
limitations of their power, was whether or not to ask a person to take off
their cap. If a judge tells a defendant to take off his or her cap, and the
person refuses, the judges “put themselves in a position where they lose
power” (Fred, chief judge, 50+), because they have no mandate to force
the defendants. One of the judges in our material illustrated the ambiva-
lence of this power limitation by being resolute in how he would deal with
“the cap-situation” in his interview: “I would consider it really annoying if
someone doesn’t take off their cap when entering the courtroom…. Then
we’ll make them take it off [laughs]” (Asger, associate judge, 30+). Yet,
when Asger actually encountered a defendant with a cap during a hearing,
he did not mention it:
122 Power and status in court
The defendant comes in; he wears something in between a cap and a
hat, pulled deep down over his head. I expect the judge to say some-
thing but he ignores it. When the defendant’s turn to speak has come,
he curses a lot, often. The judge interrupts him: “Eh, try to think a bit
about your language when here”…. He flashes a forced smile at the de-
fendant. The defendant does not stop cursing, though. The judge’s face
is turned slightly towards him when he talks, but with his mouth and
chin covered by his hand. The defendant keeps the hat on throughout
the entire trial.
(Observation, drug offence, associate judge Asger, 30+)

Judge Asger’s decision to not make note of the cap and his failed attempt
to tell the defendant to stop cursing both speak to the general limitation of
the judge’s power. Asger’s forced smile is a poker-face strategy to cover up
for his irritation, and his covered mouth signals embarrassment when the
defendant ignores his request (cf. Bloch, 1996). To confront defendants on
issues like dress or manner of behaviour or speech in the court, judges must
rely on their status rather than their power. When their status is rejected,
they are left with the option to resort to repressive power – such as cancel-
ling the hearing – that would damage the legitimacy of justice in a broad
sense and thus further reduce their professional status (cf. Abbott, 1981).
Because the rule of law presumes public legitimacy, power thus ties in with
status in the actual performance of justice in the courtroom. Meanwhile,
some judges – for instance, Margareta in Chapter 4 (p. 107) – may comfort-
ably allow the defendant to stray beyond conventional boundaries, demon-
strating their secure power.
Yet, there are limits to how much deviation can be tolerated and there
are solutions to “the cap dilemma”. The judge can use the other legal pro-
fessionals in the room, particularly the defence lawyer, to bridge the norm
system of the court and the norm system of the defendant. In the following,
an elderly and experienced judge recounts an episode where she anticipated
that she, the professional judge, might be embarrassed by a defendant. She
therefore takes the quick decision of changing her planned course of action.
She cannot count on the defendant to obey her slightest command, but she
can count on the legal professionals. Their deference to her authority is part
of the court ritual:

The judge tells about a trial with a defendant who “kept chewing gum so
hard that you could not hear what he said”. As if that was not enough,
when the prosecutor commented on this the defendant obnoxiously an-
swered: “What? Got bad hearing?” The judge got angry and in her state
of affect said “Well, I think it’s time for the defendant to spit out that
chewing gum!” She bent down to lift up the wastebasket, intending to
walk over to the defendant to let him spit the gum in it. But the waste-
basket was stuck to the floor! She had to pull it up real hard, and during
 Power and status in court 123
the extra seconds she had time to stop and think about “What do I do if
he refuses to spit it out?” So the moment she got the wastebasket off the
floor she banged the basket on top of the desk and said: “And perhaps
Mr [defence lawyer’s name] can assist me with this!” The defence lawyer
got up and fetched the wastebasket for his client, who, obediently, spat
the chewing gum out.
(Fieldnotes, court)

The story, told during a casual conversation in the lunchroom, illustrates

how the judge’s authority in the courtroom is not necessarily given and how
judges can be acutely aware of that. It further illustrates how the judge’s suc-
cessful performance in chairing the trial is partly constituted by the ritual
deference of other legal professionals.
Maroney’s study of American judges (2012) suggests a greater probability
for American judges to extend their power to force compliance to legal rules
of behaviour in the court. In the Swedish context, most judges would feel
uncomfortable with (ab)using power that way, a feeling that is linked to the
Swedish understanding that legitimate law means that it is just also in the
eyes of the defendant. Abbott (1981) claims that judges lose status but gain
power when they interfere in the ritual, but our example suggests that judges
may also avoid interfering due to risk of exposing their lack of power, and
thereby of losing legitimacy for the court. Abuse of power is a source of guilt
(Kemper, 2011), and, as we have seen, judges avoid the risk of feeling guilt
by either being ‘kind’ or conscientious or dissociating from the function of
executing power.
We have argued that judicial power relies on the reproduction of auton-
omy, typically expressed by the judge’s purification of messy reality and his
or her capacity to embody pure (and isolated) reason. But we have also seen
how, in the courtroom, the judges’ power relies on the joint cooperation of
the other legal professionals’ ritual deference, which, in turn, derives from
the norm system of the emotive-cognitive judicial frame that all the legal
professionals share. Thus, even if the judge’s personal professional status
would be low in the eyes of the other legal professionals, it also lies in their
interest to uphold the image of justice. But there is one situation where
judges rely on their own capacity to negotiate status, while their power is
limited: the deliberations with the lay judges.

Power and status in deliberations

In deliberations, the emotive-cognitive judicial frame carried by the profes-
sional judge meets common sense and (since the lay judges are appointed
by political parties) political ideology as represented by the lay judges (the
latter is contested, but see Anwar et al., 2015). The norm systems may clash:
although the lay judges should hold the legal system legitimate in princi-
ple, their political opinions may lead them to be critical. The appointments
124 Power and status in court
by political parties are traditionally geared towards elderly party members,
and the relatively low remuneration for the time spent in court, which over-
laps with ordinary working hours, makes serving as a lay judge a task most
suitable for retired people. The fact that the lay judges have no legal educa-
tion also makes them prone to express views and opinions deemed irrelevant
by the emotive-cognitive judicial frame, thus causing feelings of embarrass-
ment and irritation in the professional judges.
There is always at least a theoretical risk that three lay judges may turn
against the professional judge. When this happens, the lay judges have the
(three to one) upper hand in the democratic vote. In the deliberations, the
professional judges thus find themselves in a rare situation of circumscribed
autonomy: they formally depend on the lay judges for their legally based as-
sessment to become the ruling of the court. This may then be another reason
why the lay judge system causes some discomfort and irritation among pro-
fessional judges. Even if lay judges usually do go along with the professional
judge’s juridical assessment, there are cases where the court’s judgment
turns out to be a “lay judgment” – a judgment in which the professional
judge has expressed a dissenting opinion. Such judgments are virtually al-
ways appealed by the parties, assuming that they are juridically incorrect.
Consequently, professional judges had variously strong opinions about lay
judges: while some thought that they are vital to the democratic system and also
stressed that they appreciate the ability to “think together” with the lay judges
about any opaque aspects of a case or a piece of evidence, a rather dominant
pattern in our material was to consider lay judges legally irrelevant, although,
nevertheless, an element of the legitimacy of the legal system that could not or
should not be changed. In any case, judges agreed that the lay judges required
strategic emotion management, particularly during the deliberations.
In uncomplicated trials with a short duration, it is common that the court
deliberates and delivers its judgment at the end of the trial. Regardless, it
usually deliberates, or at least begins its deliberations, directly after the end
of a hearing. The code of judicial procedure demands that the professional
judge – or, as part of their training and if invited to do so by the judge, the
clerk – should give his or her legal evaluation of the evidence first. With
this as their starting point, judges adopt different emotion management
strategies. Below, we visit the deliberations of experienced judge Britta who
directs the proceedings in a confidently pedagogical style, asking open ques-
tions and making sure that everyone agrees, yet holding a firm grip on the
decision-making process. Britta opens the deliberations by giving the word
to the clerk. Clerks are not allowed to vote but may be invited by the judge
to present their juridical opinion. The case in question here is about theft:

The judge moves her chair back so she can see everyone and encourages
the clerk to do the same. Judge: “Let’s do this in due order. Did [the
accused] steal the money, [name of clerk]?” Clerk: “Yes, I think he did.”
The clerk develops her argument based on legal reasoning. Judge to the
 Power and status in court 125
lay judges: “Anyone wants to step in?” She looks around at the lay judges:
“Does anyone think differently?” Lay judge 2 makes a comment and the
judge nods: “But you still conclude that [the evidence] is convincing?”
Lay judge 2 nods and the judge concludes that they then all agree. She
turns to the clerk again and asks for the legal classification, develops the
legal reasoning, and discusses the appropriate sanction with the clerk.
(Observation, theft, judge Britta, 45+)

Leaving the courtroom, Britta subsequently praised the clerk for her perfor-
mance: she used the right gestures and was calm and steady. Accordingly,
we see that the professional perspective includes a certain mastery of physi-
cal expressions, communicating security and confidence in explaining one’s
assessment to the lay judges. As we see in the excerpt, Britta then invites the
lay judges to express their opinion, which is a way for her to acknowledge
their status as lay judges. The recognition is an emotional gift that is likely
to raise her own status and in return secure the lay judges’ sympathetic sup-
port (cf. Clark, 1987). According to Kemper (2011), one is disposed to like
those who accord status. The downwards according of status is a way to be-
come appreciated in asymmetrical relationships that otherwise might cause
resentment due to structural inequalities.
Jokes, humour, cheerfulness, and good temper are ways to prevent the
lay judge’s potential resentment of professional judges’ higher status, and
they represent variants of emotional gift giving. They are usually used in
various combinations, and they tend to be backgrounded habituated strat-
egies for the experienced judges, while associate judges and presiding clerks
often need to reflect more on the best way to go about. Thus, in the above
excerpt confident performance of status was part of judge Britta’s strategy,
in combination with her employment of an inviting and pedagogical style.
The pedagogical approach might have been responded to differently had
the judge been younger and less experienced, however, as it could have in-
sulted the lay judges’ status of age as well as their status as experienced lay
judges, ending up evoking resentment instead (Kemper, 2011).
While the professional judges may be emotionally generous, they never-
theless maintain their expert role. In the above quote, Britta’s “use” of the
clerk to open the deliberations can be seen as a discretely intimidating way
to strengthen the position of expert reasoning, a position that is formally
represented only by the professional judge but here gets to be affirmed twice
with also the clerk manifesting it. When professional judges feel the need to
emphasize their expert position, emotional gift giving may be abandoned in
favour of intimidating approaches. This strategy amounts to challenging the
lay judge who expresses a dissenting opinion by using legalese, or by read-
ing aloud from the code. For instance, during the deliberations in a drug
offence case, one of the lay judges wanted to double the prison sentence
being discussed, to which judge Ola, who did not agree, responded: “Then
I think we need to look at the explanatory statements of the law, as I doubt
126 Power and status in court
that [such a long prison sentence] is established praxis”. He then read aloud
from the code in an articulated pedagogical manner. When asked about the
situation in a follow-up interview, judge Ola said that he had had a similar
incident with the same opposing lay judge the week before, with the result
that the lay judges voted against him, and that he therefore decided to, this
time, use “power language” on the lay judge. In the beginning of the quote,
Ola refers to the first encounter with this lay judge:

She persuaded the entire [lay judge] committee to side with her and they
convicted a girl I thought should have been acquitted due to lack of
evidence. That’s how the legal rights of the individual are imperilled.
I think it’s rather upsetting actually. So then I decided that I needed to
be more articulate. With [this lay judge] in particular, I need to make
myself very clear. If she starts digressing and giving her opinions like
“Well, well, this is how it should be” – without any real [legal] basis for
it – then I think she’s simply wrong. So, [reading the code] absolutely is
about using power language, but I also think that it’s important to do
so. And although I don’t think she gets it, [she needs] to understand that
we can’t [irritated voice] sentence people merely based on our opinions.
(Ola, judge, 40+)

The example shows that resorting to the intimidating approach of “power lan-
guage” in Ola’s case was not necessarily an easy option for him to choose, and
so it had to be used delicately. In Ola’s case, it was chosen as a result of reflec-
tion and in correspondence with the correct procedure, given that the lay judge
was legally wrong. Ola also remained calm and kind when interacting with the
lay judge, in spite of the anger and irritation he expressed during his interview.
Careful and discrete emotion management, even when meant to intim-
idate, is common for professional judges in deliberations because they
know that heads-on confrontations of opposing lay judges are likely to only
worsen the problem of contentious lay judges. Indeed, it seems to be the
case that argumentative lay judges often manage to convince entire commit-
tees. Judges in our material thus additionally opined that where possible, lay
judge committees should not be allowed to discuss cases on their own, and
that it would be good to have the deliberations towards the end of the day as
by then the lay judges already long to go home and will thus be less inclined
to have lengthy discussions.
To sum up, the judges’ position as powerful embeds emotions of guilt, dis-
comfort, confidence, and security. In a democratic system, especially in the
Swedish system where a high degree of consensus represents a cultural good,
the legitimacy of power ideally implies that the subject complies with the
norms according to which he or she is rightfully submitted to a legal process.
As we have seen, judges are either comfortable with having power but try to
use it as “kindly” or responsibly as possible, or they are uneasy with it and
choose to consider themselves as but a function of the system. Either way,
 Power and status in court 127
“the cap story” serves to illustrate and help us reflect about the inherent in-
security of legitimate power: it is limited when clashing with different norm
systems, and when its limit is reached, the judge’s status as representative of
a legitimate system may be undermined. Though judges nurture autonomy
as their shared and sacred ideal, their performance of the legitimate rule
of law rely upon the ritual deference of prosecutors and lawyers, as seen in
the case of the gum-chewing defendant. Ritual deference as inscribed in the
emotive-cognitive judicial frame embraced by all legal professionals ensures
that the judge does not need to negotiate status in relation to other legal pro-
fessionals. The situation is different with the lay judges, however: as we saw,
judges need to engage in various status-enhancing emotion management
strategies during deliberations with lay judges. Turning now to the prose-
cutors, such status-enhancing emotion management is a vital ingredient of
their emotional profile, which is characterized by bounded independence.

The independent prosecutor: status negotiations

In contrast to the ideally secluded autonomous work of the judge, prosecu-
tors rely on an array of relations to other professionals who can either ease
or obstruct their work, regardless of the formal juridical power relationship
that puts the prosecutors in command. This makes the prosecutors’ pro-
fessional role distinct from that of the judges, in the sense that prosecutors
continuously need to empathically imagine and thus anticipate others’ re-
actions to the measures and decisions that they take in order to ensure effi-
cient collaboration (cf. Wettergren and Bergman Blix, 2016). Paradoxically,
as seen in Chapter 2, independence for a prosecutor denotes the capacity to
distance oneself from, and be insensitive to, the emotions and reactions of
others when that is called for by the objectivity ideal.

Prosecutors and the police

According to the prosecutors in our material, in most cases collaboration
with the police works fine but some officers may think that the prosecutors
do not apply coercive measures extensively enough. Prosecutor Linus (40+)
explains how he deals with that critique:

Then you must tell them that this is my decision: I am the one who knows
how the court works – if that knowledge wasn’t needed, we wouldn’t
need any prosecutors. I decide, but I am not chief of the police, so … I
can tell them what to do but not how and when they should do it.
(Fieldnotes, prosecution office)

In the preliminary investigations – which in fact take most of the pros-

ecutors’ time – the prosecutors depend heavily on the competence and
acquiescence of the police for their ability to do their job effectively.
128 Power and status in court
The excerpt above illustrates the power divisions and conflicts between
prosecutors and the police: the prosecutors decide about the coercive
measures and whether to proceed with or close down the preliminary
investigation, but the police are also an independent public authority
and decide about how to do and organize their work. The prosecutors
find it problematic that the police know too little about how the courts
work, while the police consider the prosecutors too soft or too abstract
in their reasoning:

We are so narrow-mindedly focused on the evidence and, well, the req-

uisites, what needs to be secured, the intent, and all that. […] I know
what I must be able to demonstrate, but in relation to the police it can
be hard sometimes – because we close down cases – that they think
like “come on, this, what’s wrong with this, it’s obvious that he’s [the
perpetrator]”, and I can agree that right, he’s probably the one who did
it, but we can’t prove it…. You have to show them each step, and try to
pedagogically explain, but you don’t always succeed, of course, because
[the police] think we’re way too abstract.
(Elsa, prosecutor, 50+)

These conflicts reflect another aspect of the prosecutors’ purifying work: the
legal encoding and translations are performed by them, but the ­material –
the facts and the narratives – are collected and provided by the police. The
police are the paramount dirty workers (Ashforth and Kreiner, 1999) of the
legal system in this sense, and the potential for mutual resentment is struc-
turally embedded in the power relationship between the police and the pros-
ecutors due to this status difference (Barbalet, 1998). The police who ‘know’,
due to their immediate situatedness in the messy reality, what has happened
are required by prosecutors to consider and organize their collection of ev-
idence and witness stories so that these fit in the process of legal encoding.
The squareness of this requirement “chafes, evokes emotional instability
and cognitive dissonance” (Björk, 2014: 18, our translation) to the police.
The quality of the evidence collected by the police needs to withstand ju-
dicial scrutiny to ensure that there is no overlooked evidence of alternative
scenarios or other possible perpetrators – to “plug all the holes”, as prosecu-
tor August put it, and continuing:

Many officers are geared more towards strengthening the aggravating

evidence than considering alternative hypotheses, and then I see it as
my role to guide them … so initially I have many meetings with the po-
lice instead of merely giving them directives. […] This is a sensitive issue
because we cannot control the details. […] I think about that a lot, how
to, like, gain a good balance. It’s very individual how much leadership
they want; some want none at all although they need it.
(August, prosecutor, 35+)
 Power and status in court 129
Police officers and prosecutors thus work in different organizations and
with slightly different objectives. Most notably, police officers do not share
the emotive-cognitive judicial frame and its orientation towards legal ex-
pertise. The police’s sense of dignity and professionalism in their work is
a sensitive matter, as stated by August above. As August also explained,
rather than commanding the police (“giving them directives”), he tried to
offer his “leadership” and “guidance” through meetings with them. Similar
considerations were expressed in the previous excerpt by Elsa, who tried to
“show them each step” and “pedagogically explain”.
Similarly to judges with their circumscribed autonomy in the delibera-
tions, prosecutors using their power to command police officers while failing
to recognize the latter’s status can prompt feelings of irritation and resent-
ment among the police and lower the prosecutor’s status (Kemper, 2011).
The difference here is, however, that while professional judges can retain
their professional pride by expressing a dissenting opinion in the ­judgment –
resulting in a ‘lay judgment’ of low status among legal professionals, pros-
ecutors cannot formally dissociate from police work. Loss of status in the
eyes of the police does not only cause emotions of frustration for the prose-
cutors, but can obstruct prosecutors’ power to effectively do their job.
Officers who dislike the prosecutor can delay the fulfilling of the latter’s
directives which, in turn, can affect the collection of evidence: an irritated
police officer can cause the loss of important pieces of evidence such as
CCTV films, erode the reliability of witness statements through sloppy pro-
tocols or important questions never asked, and so on. The police is generally
known to struggle with work overload, so any neglect in fulfilling a directive
can easily be explained away with reference to lack of time (Björk, 2014;
Liederbach et al., 2011). The relationship to the police therefore needs to
be continuously emotionally lubricated, ideally achieving a stable, mutually
accorded status and trust. The following excerpt describes a lunch conversa-
tion between two prosecutors, who discuss ways to achieve just that:

Prosecutor 1 says that when you meet police officers [the first time],
they read you to find out what type you are and how they can approach
you…. Prosecutors 1 and 2 keep talking about how to give directives in
a nice manner, not forget to praise the police for a good piece of work,
not just “do this and do that”, and take their work for granted.
(Fieldnotes, prosecution office)

The police’s “reading” of the prosecutors noted in this excerpt reflects the
police’s subordinate position and can be compared to the way prosecutors
and defence lawyers in our material tended to keep close track of the dif-
ferent judges they met in court (see below). Previous research suggests that
the demands on emotion management for subordinate legal actors are higher
than those for superiors (Francis, 2006; Lively, 2002; Pierce, 1999), which is in
line with this ‘upward reading’. But our data also suggest that in the case of
130 Power and status in court
prosecutors and police officers, the amount of emotion management depends
on the degree of interdependence in the power relation. The prosecutors com-
mand the police during preliminary investigations and concerning coercive
measures, but they also depend on the police for collecting the material they
need for legal encoding. This dependency warrants prosecutors’ emotion
management in relation to the subordinate police. Prosecutors therefore also
read the police: “You learn about individual officers that you work with, you
know that ‘OK, now it’s that person, so I’ll work like this’, and you know
how to get what you want out of [that relationship]” (Ursula, prosecutor, 30+).
Prosecutors’ dependence on collaboration with other professions such as the
police thus brackets their actual power and directs attention to the mutual
accordance of status that enables one to perform, in a position of superior and
subordinate, in situations in which the superior depends on the acquiescence
of the subordinate, but the actors belong to slightly different norm systems.

Prosecutors and the judge

In court, prosecutors are independent players representing the state. H ­ owever,
they are also dependent on the other court professionals, without whom they
cannot gain the situational status they need to do their job in court. They
are also formally subordinated to the judge. The judge may affect prosecu-
tors’ performance in court, and in this sense, prosecutors, on the one hand,
depend on the judges, as they do on the police. On the other hand, prose-
cutors may potentially resent their formal subordination, as the police may
resent their subordination to the prosecutors. Differently from the relation-
ship between police and prosecutor, however, prosecutors share the emotive-­
cognitive ­judicial frame with the superior judges, and ritual deference to the
judge is deeply inscribed into that frame. This means that prosecutors must
also comply with judges who obstruct, scold, or scorn their work. Judges are
not as reluctant to exercise power over prosecutors and defence lawyers as
they are over lay people, since all legal professionals by definition share the
norms and values of the judicial system. In the broad perspective, as we argue
throughout this book, they are “in it together”: the legal professionals’ group
charisma depends on their joint performance of legitimate justice (see Elias
and Scotson, 1994). Details of the situated interactions between prosecutor
and judge in court will be discussed later in this chapter.
Since prosecutors depend on judges to give them space to perform in court,
they – the same way that the police are attentive to the “type” of ­prosecutor –
keep track of the “type” of judges, and adjust their performance to fit ­particular
judges:

When it’s a new judge, you might ask your colleagues about what he or
she is like, just so you can mentally prepare. What do I have to expect? If
you’re told that they have an uneven temper, then of course you become
a bit more insecure.
(Bror, prosecutor, 65+)
 Power and status in court 131
Prosecutors, however, also regulate their ritualistic strictness in terms of
deferential displays depending on the judge:

I went to the bench to let judge [name X] read the document. […] I
would never have dared to do that if judge [name Y] had been presid-
ing, because then you have to ask for permission to approach the bench
[laughs].
(Josefin, prosecutor, 30+)

So far, we have shown that the prosecutor’s role is shaped by complex power
relations that in a number of ways make it distinct from the judge’s role. In
the juridical hierarchy, prosecutors are subordinate to judges, but superior
to the police. They depend on both the police and the judges to do their
work. First, while they formally have power over the police, the police repre-
sent a different institution with different norms and values attached to their
specific (practical, action-oriented) professional pride, making many police
officers predisposed to resent (the power of) prosecutors. Prosecutors thus
need to develop emotion management skills that help them increase their
status as well liked among the police. Second, the relationship to judges is
collegial and they share the emotive-cognitive judicial frame. There is no
norm or value conflict, nor can prosecutors escape the peer-evaluative eye
of the judge in the courtroom.

Prosecutors and lay people

Prosecutors exercise significant power over lay people, particularly during
investigations in which they – through the police – subject them to coer-
cive measures and police interrogations. In court, however, they must much
more depend on their status as liked or disliked individuals to obtain results
useful for their objectives. Prosecutors invest much strategic emotion man-
agement in examining defendants and plaintiffs, learning the art by trial
and error. Insofar as the victim examinations are concerned, prosecutors
may also have to perform emotion management to impact the trustworthi-
ness of the victim in court, for instance, by making them more or less emo-
tional (Wettergren and Bergman Blix, 2016).
The task of strategic emotion management becomes even more challeng-
ing when victims actively resist participation. During shadowing, prosecu-
tor Klara (35+) recounted the example of a battered wife who had decided to
no longer cooperate in the proceedings. In such cases, prosecutors embody
the power that forces reluctant victims to submit to a hearing, relentlessly
trying to make them talk against their will in court. Klara described the
resentment directed at her by both the defendant and the victim at the trial,
and the victim’s evasive answers when she was faced with the evidence that
her husband had actually injured her. Klara had to brace herself to stay calm
and neutral, remaining “cunning, but not unkind”. She continued: “Maybe I
trick them, but I try to pretend that I don’t. It’s like playing a bit stupid and
132 Power and status in court
not understanding that they resent me”. The victim here joins forces with
the defendant and, as we see, the strategy adopted by the prosecutor is
­reminiscent of the one used by Faida in Chapter 1 (p. 20), habitually dis-
playing neutrality in order to stay calm and focused. One difference here is,
however, that the aim of the strategic emotion management in prosecutor
Klara’s case is not to reveal the defendant’s inclination to violent behaviour
but to reveal the victim’s actual victimization.

More distance – less personalized

The prosecutor sometimes struggles to uphold an aura of power and au-
thority in relation to lay people in court (cf. Roach Anleu and Mack, 2017:
115–116 on the authority of magistrates). A wish to become more deper-
sonalized was expressed by prosecutors in our material: “In Norway and
Denmark, they wear gowns, and I would have wanted us to do that here
as well, so you could de-identify as a person, become more of a public offi-
cial” (Lara, prosecutor, 30+). By erasing bodily characteristics, it becomes
possible to disassociate the representation of the state from the individ-
ual holding that position. The fact that prosecutors usually enter the court
from the public area and meet and talk to the victim, and sometimes also
the defendant in the hall, actualizes a wish for visible distinction:

Actually it wouldn’t be so bad if we had robes or something. [---] You

wouldn’t have to think so much about working clothes […] and we would
be immediately spotted, too, because that’s not otherwise so easy today:
when people come to court, they don’t know who the prosecutor is.
(Elsa, prosecutor, 50+)

Like judges, prosecutors represent the state, but unlike judges, they repre-
sent the state as a party in court, not – as is the case with the judge – justice
per se with a fundamentally autonomous relation to the state. Prosecutors
by definition serve as the personalized state: they exercise state power in
leading investigations and in their decisions to pursue or close down cases.
In all these instances, they represent the state in dealing with the victim; they
may get frequent phone calls from victims who are angry, disappointed, and
so forth. Furthermore, prosecutors take great pride in their professional re-
quirement to conduct objective investigations, but as they switch to become
a party in court, they still need to uphold distance to the victim(s). As seen
in Chapter 4, contrary to judges, the issue for them is then not whether to
give justice an empathic face; rather, it is about keeping distance and con-
veying the point that prosecutors do not represent the victim the same way
defence lawyers represent defendants. This distance requires a habituated,
tacit ability to move in and out of engagement depending on the objective
needs of the victim. They also need to strategically manage the emotional
expressions of victims as well as victims’ expectations on the prosecutor. In
 Power and status in court 133
relation to defendants, the prosecutors want to make sure that they under-
stand that the prosecution against them is professional, not personal.
We have seen that due to a multitude of interdependent relationships,
prosecutors need to negotiate power with emotion management strategies
to gain status, which eases their work. At the same time they embody the
exercise of power, sometimes against the expressed wishes or needs of the
police and lay people. In this professionally habituated readiness to use
power – in spite of becoming disliked, thwarted, and scorned – lies their
profession-specific sacred value of independence. Independence is bounded
by interdependent relationships and status negotiations, but proves its
worth when prosecutors pursue their objective goals by the use of power,
even if they lose status. In other words, prosecutors have both to be insensi-
tive to the perspectives of others and empathically oriented towards them.
This is also true in their relation to the judges, although in this relation, the
prosecutors are structurally subordinated. In the last section, we will briefly
elaborate on the power/status relationships between these two professional
groups in court interactions.

Judge and prosecutor: power and status challenges

The division of judicial skills between the professional parties constitutes
one of the things that make the presiding judge de facto dependent on the
other professional actors fulfilling their parts in a trial. Judges, who are gen-
eral dealers, appreciate skilled prosecutors, and they can even draw on the
expert competence of specialized prosecutors by asking them for advice. In
contrast, prosecutors who leave gaps in the matter presented to the court
put judges in a dilemma situation that evokes frustration and anger. Given
that judges should be objective, they should not ask questions that “bring
down the defendant” as described in the following quote. Whether a seem-
ingly neutral question will have this effect is difficult to know before hearing
the answer, and therefore judges hesitate to ask the questions a prosecutor
has missed. Interventions can evoke feelings of power discomfort as they
stretch the limits of judges’ legitimate power.

She [the prosecutor] never asked. It was never clear who [the defendant]
bargained with, that was just implied, and it cannot be implied. I had to
put those questions. And that is not my role. […] When the prosecution
doesn’t function properly, isn’t skilled, it’s not good from a judge’s point
of view, because it undermines our objectivity. […] I have investigative
responsibility as well, but I won’t go in and bring down the defendant.
(Monika, judge, 45+)

Monika here did make sure the missing questions were asked, but, as we see,
she resented the prosecutor (“doesn’t function properly, isn’t skilled”) for put-
ting her in this position. The reason why judges like Monika may nevertheless
134 Power and status in court
decide to venture into objectivity’s grey zone is their distaste for waste of time
and of taxpayers’ money; if, instead of asking, they would issue a judgment
to the effect that the case be dismissed due to lack of clarity, the prosecutor
would appeal and an appeals court would presumably convict instead.
Feelings of resentment thus arise in judges when other parties fail to do
their part. This said, judges’ dependence on the other legal professionals
in hearings does not warrant any status negotiations, as their power over
defence lawyers and prosecutors normally goes uncontested. We have al-
ready discussed the mechanism behind this, which is ritual deference to the
judge as a shared norm embedded in the emotive-cognitive judicial frame.
Judges therefore do not need to work on their status in the eyes of other
legal professionals: they do not (and autonomy postulates that they should
not) need to be liked by them. Judges’ dependence on other legal profes-
sionals instead disposes them to feelings of anger, an emotion associated
with power. Their habituated position of autonomous power can thus make
judges short-tempered:

…most people are very attentive to what … you think up there, if I may
say so, most people see that there is lots of power radiating from the
bench and they do – yes, most people do as I want. Last time I roared at
someone, it was actually a lawyer who wanted to make a statement at a
point in the trial where he was not supposed to make any statements, to
refer to circumstances that he was not supposed to refer to, [loud voice:]
and then I had to roar that he was to be quiet […] Well, then you must
let it come forth, let the feeling come forth that I am not afraid to use
the language of power.
(Folke, judge, 60+)

This comfortable display of power depends on that the object of power (the
defence lawyer) shares the judge’s norm system. The lawyer in the excerpt
might not have agreed that he did something wrong, but he would not openly
challenge the judge’s command.
Prosecutors in training may irritate judges for being slow and asking too
many or too ineffective questions. Their impatience reflects the tension,
managed by the judges, between staying on schedule and letting the parties
have their say (Scarduzio, 2011). In the quote below, judge Hans becomes
angry with a young assistant prosecutor. They have to cancel a grey trial
because none of the parties have shown up for it and, as it turns out, the
injured party is unlikely to participate at all since she has emigrated from
Sweden. The judge advises the young assistant prosecutor to withdraw the
case entirely:

The judge to the prosecutor: “You have read the preliminary investi-
gation, in which the evidence builds on the victim’s story, so if she is
not here maybe you should just drop the case.” The prosecutor [with
 Power and status in court 135
a strained laugh]: “I will have to consider that.” They have a short ex-
change about a previously cancelled hearing, and the prosecutor leans
back with her hands to her sides, as if showing that she thinks. The
room falls silent for a while and the judge looks at his papers, as if wait-
ing for the prosecutor, who does not speak. Finally the judge speaks:
“So, we’ll end the attempt to find the victim.” Prosecutor: “Can I take a
short break to think this through?” Judge: “You can take a break until
our next trial.” Prosecutor: “Good”. She nods, stands up, and leaves the
courtroom.
(Observation, unlawful threat, judge Hans, 55+)

Typical of the kind of emotional toning pertinent to the front stage of the
courtroom (discussed in Chapter 4), the power contest between the prose-
cutor and the judge in this excerpt is subtle. The prosecutor’s strained laugh
and body posture suggest that she is both humiliated and angry but unsure
how to proceed. Her hesitation to withdraw the charges and show deference
to the judge’s opinion reinforces the judge’s anger. From the prosecutor’s
perspective, the lack of deference is an exercise of independence vital to
her profession, an attempt to stay in charge of a prosecutor’s discretionary
space despite the pressure from the judge. In return, the judge overrules the
prosecutor’s request to “think it through” by abruptly ending the trial, using
his power to show that she, the prosecutor, is not worthy of his respect. In his
follow-up interview, it became clear that judge Hans resented prosecutors in
general, for believing that they have power in these matters, and that the
interaction observed above was indeed meant to be a power manifestation:

[Condescending tone of voice] The prosecutor does not decide on any-

thing, but some judges think they do. […] The fact that the prosecutor
finds something important, in this case referring to [the victim’s state-
ment], makes her completely forget about the nuisance it causes people
[when a case drags out for years], and then she doesn’t abide to the law
the way it’s intended [---]. And we pull together an entire court to decide
on this – that costs a lot of money for the taxpayers. There is no way that
we can make this victim come to the trial.
(Hans, judge, 55+)

Judge Hans belongs to a category of “aggressive” judges whom prosecu-

tors generally dislike and some even fear, as they interfere with prosecutors’
independence in court. Such judges throw prosecutors off balance, mak-
ing it hard for them to stay on their planned course of action during the
hearing. Novice prosecutors keep themselves particularly busy trying to get
all the procedural issues right and testing different examination strategies,
which sometimes means that they allow those examined to talk about things
deemed irrelevant by judges. Assistant prosecutor Magnus describes an ag-
gressive judge:
136 Power and status in court
I think [judge X] crosses the line sometimes for how much a judge can
steer an examination, and how much he can cut in. He can tell a wit-
ness that he “should only talk about ‘this’, everything else is completely
irrelevant”.
(Magnus, assistant prosecutor, 30+)

The “cutting in” as described in this quote equals overruling the judgement
of the prosecutor, the one to normally “steer” the examined person. When
judges undermine novice prosecutors’ professional status, they lower these
prosecutors’ self-confidence and security. As prosecutor Magnus continues to
describe another such judge, he uses the word “painful” and blames his own
lack of experience, indicating low self-feelings and shame (cf. Scheff, 1990):

Of course, if I have a full day with [judge Y] and she cuts in on every
examination I hold, and kind of tells me “that’s not interesting” or takes
over the examination herself, then you can feel [dejected], it can be kind
of painful. It has happened on some occasions, but, you know, being a
beginner, I’m quite humble. I have a lot left to learn.
(Magnus, assistant prosecutor, 30+)

Judges’ use of power this way may impact negatively on prosecutors’ gen-
eral performance, which, in turn, makes the judge more irritated, creating
a vicious circle of an escalating shame-anger spiral consolidating feelings of
insufficiency (Scheff, 1990). Interestingly, even experienced prosecutors can
talk about and display feelings of discomfort and insecurity when about to
enter trials with reputedly aggressive judges (see, e.g., p. 130).
As we have seen, prosecutors’ independence requires insensitivity to
criticism from both professionals and lay people. An ability to withstand
patronizing assaults on their professional self by aggressive judges is also
inherent to this necessary insensitivity, a skill they have to develop to pursue
their goals. In the excerpt below, the earlier quoted judge Hans meets now
instead an experienced male chief prosecutor who engages him in a status
contest while upholding ritual deference as pure formality. The parties have
just been called to begin the trial:

Walking in, the prosecutor says: “The defendant has not arrived”. With-
out paying attention to the prosecutor, the judge looks at his papers and
asks the clerk to check the database. Judge: “He has been served his
indictment, stating that the case can be handled in his absence”. Prose-
cutor: “Mm”, leaning back with his arms crossed. The prosecutor then
picks up his papers, reads for a few moments and turns to the judge:
“I see that there is an incorrect date in the police report.” The judge
stares at his screen without acknowledging the prosecutor. Prosecutor:
“I need to make an amendment and change the date to 31 January.”
The judge does not react. After a while the judge says: “When a case is
 Power and status in court 137
handled in absence of the parties, it is not possible to…” The prosecu-
tor quickly fills in: “…make amendments.” The judge interrupts: “I was
talking to the lay judges.” Prosecutor: “Excuse me.” Judge: “No prob-
lem,” without looking at the prosecutor. When leaving, the prosecutor
shakes his head, looks at the researcher, and smiles.
(Observation, drug offence, judge Hans, 55+)

In this excerpt, Judge Hans claims power and superior status through
demonstrated indifference (Kemper 2011: 23), and emotional distance to-
wards the prosecutor by not responding or even meeting the prosecutor’s
eye once during the short episode. Hans’ insinuating that the chief prosecu-
tor would not know that trials without the defendant present do not allow
for amendments is a clear status withdrawal. In contrast to the young fe-
male prosecutor encountering judge Hans above, the male chief prosecutor,
however, claims status by remaining confident, talking back to the judge
to show his professional competence, and finally signalling that he finds
the judge ridiculous by shaking his head and smiling on his way out. The
prosecutor’s filling in the judge’s talk (“…make amendments”) amounts to
a verbal crossing of swords, revealing his keen defence of his status. Experi-
enced and confident high status prosecutors may gain a reputation as such
among judges and thereby claim more confident space of discretion in the
court than other prosecutors claim. While there are judges, like judge Hans,
who refuse to be impressed, it lies in the prosecutors’ interest to not admit
to being humiliated.
To sum up, even the autonomous judges depend on hierarchically subor-
dinate other legal actors, but they do not need to negotiate status in these
inter-professional relations. Whether those other legal actors like them
or not, they are bound by the shared emotive-cognitive judicial frame to
submit to the judges and show them respect and ritual deference. We have
seen how this may result in judges who appear aggressive to prosecutors,
which may cause emotional distress for the latter, especially the novice ones
among them.

Conclusion
In this chapter, we have focused on professional power and status relations.
We have shown how judges and prosecutors are variously enmeshed in re-
lations of dependence, while power and status work differently for the re-
spective professions, resulting in different patterns of emotion management
and emotion outcomes. Confidence and comfort of power are tied to the
judge’s performance of autonomy, but judges’ position as powerful also em-
beds emotions of guilt, remorse, and discomfort. Some judges confidently
habituate power by assuming personal responsibility that may go beyond
their actual job description. Others reject the notion of their power and as-
sume a bureaucratic approach, entirely denying responsibility. In order to
138 Power and status in court
be comfortably exercised in a democratic egalitarian society power also has
to be legitimate. Bounded independence, requiring the mitigation of power
by the continuous negotiation of status, characterizes prosecutors’ power
relations to a multitude of groups. Prosecutors therefore need to develop
high empathic and emotion management skills. Yet, their independent, pro-
fessionally required, pursuit of objectivity also propels them to be insen-
sitive to others’ emotions, as when they execute prosecutorial power over
lay people or resist the tacit signals and emotional communication of the
judge. These patterns contribute to the making of what we call different
emotional profiles of judges and prosecutors within the emotive-cognitive
judicial frame.
We have argued that judicial power relies on reproduction of auton-
omy, typically expressed by the judge’s removal from messy reality and
his or her capacity to embody pure reason. The emotional profile of the
judges is characterized by a rather distinct absolute power that neverthe-
less requires a certain status of the rule of law in order to be comforta-
bly exerted in relation to lay people who do not necessarily embrace the
norms of the legal system and its legitimacy. When achieving legitimacy
in court, judges thus rely on the ritual deference – inherent in the norms
of the e­ motive-cognitive judicial frame – of the other legal professionals.
Sharing the norms of the legal system, defence lawyers and prosecutors
can bridge the norm gap between the judiciary and lay people. As we saw,
status negotiations are necessary for judges primarily in relation to lay
judges during deliberations. Given the good treatment policy, however,
some judges attempt to work on their status through a more personalized
approach in relation to lay people.
The emotional profile of the prosecutor is characterized by dependent
power relations vis-à-vis both the police and the judges. Police officers who
resent a prosecutor may not do as good a job in securing evidence fit for legal
encoding as positively disposed officers do. Status negotiations in relation
to the police are therefore vital in the preliminary investigations. Vis-à-vis
judges, prosecutors may find their status undermined by aggressive judges,
but to some extent, they also defend that status: even aggressive judges may
be more tolerant of prosecutors they respect. Relations to lay people are
more complex: here the prosecutor may exercise prosecutorial power against
the wishes of the victim, thus putting up with the discomfort of both exercis-
ing absolute power and losing status (being disliked). Due to these complex
power and status relations, the demands on prosecutors to flexibly manage
and predict others’ emotions and adapt relationally are considerably higher
than those on judges.
We have seen examples of how resentment and anger among professionals
can occur in court as the result of colliding professional agendas. Judges
take pride in procedural correctness, in staying on schedule, in saving tax-
payers’ money, and, above all, in gaining lay people’s recognition for the le-
gitimacy of the law. Prosecutors share these values, but in court, their focus
 Power and status in court 139
and pride lie in their capacity to steer the process forward according to the
plan, presenting evidence and examining people. The different foci of judges
and prosecutors give rise to different priorities. The judges may want clear
and concise questions that generate the best substance for decision-making,
while the prosecutors may want unwavering respect for a specific, strategic
examination. In the court settings of interdependence and cooperation nec-
essary to achieve shared sacred values of objective justice and professional
pride, power and status become emotionally highly charged dimensions.
Mutual respect and ritual deference become crucial for smooth professional
relationships and, in the end, for the smooth working of justice.
6 Objectivity work as situated
emotion management

When the lay judges can identify with the accused, they put extremely high
demands on the quality of the evidence; and when they can’t, because it’s
some junkie, then they can convict that person more or less without any
evidence at all. I’ve seen that over and over again. And quite often when
they don’t want to convict the defendant, even when I think there’s really
enough evidence, we end up having very weird discussions. I suppose, when
I identify with someone, that’s how it works for me as well. That’s happened
a few times and it’s been rather unpleasant. […] Now and then it happens
that it’s someone who could have been me, then it’s hard. Because then I feel
I’m less objective, and I think it’s really very important to talk to someone,
unload all that, so to speak, before you make your judgment. Because those
feelings can make you judge, not necessarily milder at all … but that I try to
compensate for those feelings.
(Tina, judge, 50+)

T
ina in this excerpt speaks with unusual insight into the role of back-
ground emotions in judicial decision-making, an issue more vis-
ibly affecting lay judges who lack the tools and techniques of the
­emotive-cognitive judicial frame. From Tina’s reflections on lay judges’
contingent demands on the evidence, she infers similar processes in her-
self. Her view that judging sometimes should be preceded by “unloading”
­various emotional impressions in order to avoid unreflected influences on
­decision-making points to our argument in this book that while emotions
can be rendered formally insignificant by the legal system, they will none-
theless still be present. The legal positivist notion of objectivity as something
abstract, disembodied, and unemotional is therefore profoundly problem-
atic (Bladini, 2013). In reality, as Tina seems to suggest above, the goal of
objectivity might be better served by paying close attention to situated and
contingent background emotional processes (Burkitt, 2012; Scheer, 2012).
In this chapter, we will show that judicial objectivity relies on situated
emotion management and empathy. That is, rather than being static and
universal, objectivity is a situated practice accomplished through “objec-
tivity work” (Jacobsson, 2008: 46–47). We will also show how the positivist

DOI: 10.4324/9781315306759-6
 Situated emotion management 141
objectivity ideal remains a chief organizing principle for legal profession-
als, sustained by the emotive-cognitive judicial frame and emotions of pro-
fessional pride and shame. Lots of skilled emotion management goes into
upholding the positivist ideal itself and its appearance of unemotional de-
tachment (Mack and Roach Anleu, 2010).
In practice, the different professional emotional profiles of prosecutors and
judges require different types of objectivity work. We begin with the judges
and their focus on the performative side of objectivity, consisting of an impar-
tial demeanour (equal treatment) and an instrumental method of evaluating
legally encoded sections of complex and conflictual reality (evaluation). We
then proceed to analyse prosecutors’ challenging task of being both partial
and objective, discussing the emotional agility required to balance emotions
of commitment and detachment. We look at this balancing act in relation to
preliminary investigations, which has not been given much attention earlier in
this book. Like the judges’ method of evaluation, prosecutors have a method
of legal encoding that directs their focus when mediating between messy real-
ity and the emotive-cognitive judicial frame. Finally, we analyse examples of
objectivity work as a collective achievement in court, which relies on intricate
and subtle inter-professional emotional communication and tacit signals.

Objectivity and impartiality

Objectivity in legal practice is connected to impartiality, neutrality, and an
emphasis on facts. In our analysis, we found that empirically and theoreti-
cally distinguishing between impartiality and objectivity is helpful for un-
derstanding how prosecutors and judges adhere to the judicial objectivity
ideal in practice. According to the Oxford dictionary, being objective means
not being influenced “by personal feelings or opinions in considering and
representing facts”, and objectivity means “the quality of being objective”.
Being impartial means “treating rivals equally”, not taking sides, and impar-
tiality refers to “equal treatment” and “fairness”.1 Impartial and objective
can be synonyms, according to the Oxford dictionary, but, as we see, they
also stand for slightly different phenomena. It is, for instance, entirely pos-
sible to be objective but partial, which, we will argue, is the case with prose-
cutors when they appear as party in court on the basis of objective evidence.
It is also fully possible to appear impartial without being objective, treating
parties equally although one already has an opinion about the forthcom-
ing verdict. The latter is presumably not the case for judges – when asked,
they say that both objectivity and impartiality are equally important – but
front stage, impartiality is their primary focus. Arguably, impartiality is the
way for judges to demonstrate objectivity, whether or not they have begun
to think that objective facts speak in favour or against one of the parties. It
follows that impartiality can be seen as an external display, as interactional,
while objectivity is an emotive-cognitive process of the mind. If and when
the two coincide, impartiality is the external display of internal objectivity.
142 Situated emotion management
Judges: justice must be seen to be done
Impartiality and independence are fundamental for the rule of law as put
forth in the European Convention on Human Rights (ECHR: Art. 6.1) and
the Swedish Code of Judicial Procedure (CJP: Ch. 3, Art. 13). These two le-
gal frameworks deal with possible conflicts of interests, but the intentions of
the laws are two-fold: to secure the fairness of a trial and public trust in the
judicial system (Sandgren, 2014: 452). Both of these functions, fairness and
trust, are represented in the below quote about “a good judge”:

Emphasizing impartiality, not that we stand above but – yes actually,

that we stand above society’s institutions, so to speak, in that we can
assert the individual’s right against society in general. And this is what
characterizes a good judge: an ability to communicate that message.
(Erik, judge, 50+)

In this quote, Erik emphasizes that judicial impartiality ultimately means

safeguarding the rights of the individual against the state and its institutions
(“society”). This implies that even though other institutions may present
claims regarding the defendant’s guilt or non-guilt, the defendant and the
people in general can trust that the court stands above these institutions
and makes an autonomous judgement. As also pointed out in the quote, a
good judge can “communicate that message”: in other words that “justice
must not only be done but must manifestly and undoubtedly be seen to be
done” (Hewart, 1924). In this section about judges’ objectivity, we will show
both how justice is done and how it is seen to be done, beginning with the
latter: the presentation of an impartial demeanour. The way Swedish judges
achieve “justice as seen to be done” is by not giving away any signs of sym-
pathy (or antipathy) in any direction – that is, by upholding their stone face
– or by expressing the same things in both directions – that is, by balancing
their emotional expressions (cf. Roach Anleu and Mack, 2017).

Balancing emotional expressions

An impartial demeanour is to communicate that no one is judged until
everyone involved in the trial has been heard. It is essentially about balanc-
ing emotional expressions; whether this is achieved by a passive stone-faced
attitude or some other means, the rule is to not intervene against one party
more than the other. This often amounts, as explained by Folke in the fol-
lowing quote, to not showing any feelings at all, even if these feelings are
related to the criminal act in question and not to the accused person:

You have to be really careful with [feelings of] disgust. Just because
you dislike rapists and those who abuse small children, I mean, they
aren’t [rapists] before they’re proven guilty so to speak, so we’re going to
 Situated emotion management 143
examine if they really did it. So I don’t know if it’s a perpetrator sitting
there; it’s an accused sitting there. Whether or not he is a perpetrator,
that is what I have to decide upon right, and until then the person is
innocent. And that’s – I believe we strive to live in line with that fiction.
(Folke, judge, 60+)

Folke’s statement here indicates that impartiality can in fact hide strong opin-
ions and feelings (“disgust”) about what the accused may have done. In this
sense, impartiality is surface acting with the stone face. On the other hand,
the presumption that a person is innocent until proven guilty is fundamen-
tal to the principle of the rule of law, and it is therefore a sacred value of the
emotive-cognitive judicial frame. This frame disciplines judges to actually feel
proud when they succeed in keeping the accused separated from the criminal
act, and thus in refraining from morally judging the accused beforehand (“they
aren’t rapists before proven guilty”). In this sense, impartiality is not surface
acting but deep acting, using the emotive-cognitive judicial frame to actually
neutralize any feelings for the accused (Hochschild, 1983). Equal treatment
and an impartial demeanour is then connoted to actually feeling neutral to-
wards the accused. Nevertheless, the ambivalence of this frame adherence
comes through in Folke’s last sentence: it is all “fiction” that judges “strive” to
live by. In these words, we glimpse the usually overlooked gap between messy
reality and the ideal order of the emotive-cognitive judicial frame.
Success in performing an impartial demeanour makes judges feel good
and proud about doing their job well. As illustrated by chief judge Christer
in the following quote, one way to know that you succeeded is from the
(very rare) direct feedback from lay people. Christer had a murder case in
which he sentenced the accused to forensic psychiatric care. The injured
party called the clerk to ask about certain things after the trial, and then
took the occasion to express her satisfaction:

She had been so nervous before the trial but now she was so satisfied; she
felt that I had treated both [the accused] and her with such respect. And
then I thought it was – then I felt really happy, actually, really happy.
And I mean, she had no reason to tell me that if she – I mean, she had
no – well, that’s how she felt, anyway.
(Christer, chief judge, 50+)

Acknowledgement from a lay person is a great source of professional pride, a

sign of legitimate exercise of power. In the quote, we see how Christer makes
a point of emphasizing the fact that the victim had no reason to say any of
this, stressing the view that she therefore truly must have meant it and –
most importantly – that she did not try to influence the proceedings or the
verdict. Christer felt free to express joy because doing so did not endanger
his impartiality. Taking pride in the displayed fairness of the procedure is
common to judges in our material and mirrors the ideas behind procedural
144 Situated emotion management
justice that there will be an enhanced acceptance of the legal judgment by
the accused and the victim if the trial is perceived as fair (Tyler and Bies,
1990). Displayed fairness thus increases the legitimacy of the rule of law.
Reversely, failure to adhere to the requirement of an impartial presenta-
tion leads to professional embarrassment. As chief judge Sanna explained,
recalling the time when she was working in an appellate court and – while
watching the recordings of the trial in court2 – heard the district court judge
express unbalanced empathy for the victim:

There was this [district court] judge who said [sighs, imitates compas-
sionate tone of voice:] “Yes, I understand that this is really difficult
for you, you have been subject to so much, poor you, you may take a
break.” [Normal voice:] Something like that, because the examination
was getting emotional. And I felt like [hissing voice:] “Oh no! Good
Lord! I mean, quiet, quiet, quiet!” [Normal voice:] Like, do not say one
more word, it was so wrong. She didn’t mean to, but what she said was
so value laden, and I thought it was so unprofessional.
(Sanna, chief judge, 50+)

Sanna’s intensive shame in this quote is an effect of the district court judge’s
open expression of compassion. Although judges’ empathy may harbour
compassion,3 it should be expressed in a by-the-way manner, as we saw in
Margareta’s case in Chapter 4, or not at all. Sanna is ashamed on behalf
of the particular judge, but her shame is also related to judging in general:
judges transgressing professional values bring shame to the entire judiciary.
Insofar as the impartial demeanour is achieved using the stone face, it may
conflict with other aspects of procedural justice, such as expressions of em-
pathy, required by the policy of good treatment. Almost all judges in our
material stressed the importance of empathy to manage emotions of others in
court, in the interest of a smooth procedure (see also Roach Anleu and Mack,
2017: 62–70). When being asked why he was a good judge, judge Fredrik re-
plied “I can easily relate to people and attune to them, [in order to perceive]
how to proceed and make things work” (Fredrik, associate judge, 35). As
seen above, in the situation described by chief judge Sanna, also empathy
needs to be balanced in order not to adventure impartiality. In practice, this
means that the judges cannot respond empathically only to a victim’s strong
expressions of pain and suffering. The solution to this dilemma may result in
the opposite of empathy. In one murder trial, the defendant gave a detailed
description of how he stabbed the victim multiple times with his knife:

The defendant describes how the victim tries to wriggle out from under him
and how he stabs her repeatedly in the neck with his knife. He repeats again
and again that he did not want to hurt anyone, but still stabbed her every
time she tried to move. No one in the room reacts as if he is talking about
anything special. […] The judge and lay judges are focused on taking notes.
(Observation, murder, prosecutor Cecilia, 40+)
 Situated emotion management 145
Arguably, keeping focus on the legal aspects is bound to be more difficult
in horrific cases, and we know that judges feel things and even fail to hide
their feelings sometimes. Indeed, keeping oneself busy with practical mat-
ters such as taking notes is a useful technique: apart from its function as a
cognitive aid, judges and lay judges use note taking as a way to appear at-
tentive and interested, to control boredom, and to shield off from emotional
engagement.
Our observations repeatedly confirmed that the thicker the emotional at-
mosphere gets, or the stronger the emotional expressions of the lay people
get, the more neutral and stone-faced the court appears. The reason may
be that the stone face in these situations is no longer primarily directed at
the audience front stage, but is really a habituated tool available for judges
wanting to control also their internal states (foreground emotions).
The judges’ concern for displaying an impartial demeanour, along with
their concern for procedural justice and legitimate power, may influence
their capacity to intervene even in cases where doing so would be appro-
priate (due to disturbance, for instance), sometimes resulting in awkward
passivity. Judges’ fear of risking the balance and going from observation to
intervention (compare Moorhead, 2007) may indeed make them look like
they favour the accused. As explicated by Judge Ola:

I think it is important that the defence is allowed to ask the questions

they want, in principle, in peace. […] I usually let them ask a lot of ques-
tions and take breaks, so they can conduct the kind of examination they
want [---] I might not even interfere when they go too far or when [their
questions] are not entirely relevant. The reason is that I think that, be-
yond pleading their case, they should also have the feeling that they
have been allowed to plead their case. I know [famous defence lawyer]
once said that, in his experience, his clients rarely appeal when they feel
that the court has listened to them […] So I have [light laughter] taken
that to heart; I think that’s a rather important point.
(Ola, judge, 40+)

In this excerpt, we see the implicit presumption that the defendant, rather
than the victim, is the one most vulnerable of the two parties because he or
she stands to be punished. Even if the defence lawyer goes too hard on the
victim, and even if the lawyer’s questions are irrelevant, they may be allowed
for this reason. This presumption was widespread among judges in our ma-
terial, although individual judges could be variously lenient with regard to
the defence lawyers’ examinations. As a rule, the more serious the crime and
the more severe the sanction associated with it, the more space the accused
was allowed.
The aim that the accused should ideally understand and comply with the
sentence, however, also rests on the assumption that the accused will be con-
victed. As the legal system is built on the premise that prosecution should
only take place if and when the prosecutor finds the objective evidence of
146 Situated emotion management
the accused person’s guilt to be sufficient, the accused is indeed likely to be
convicted.4 Yet, the impartiality of the judge, and the principles of orality
and immediacy (see Chapter 1), still require the judge not to take this for
granted. Eager to communicate this message, judges may overcompensate
by giving the accused more space than they do for the victim. This compen-
satory behaviour may be implicit for the lay people, but it is rather explicit
for the professional parties: the judge may appear and actually be stricter or
harsher towards the prosecutor than towards the defence. In other words,
the judges’ concern to appear impartial may lead them to treat the prose-
cution with less concern for their feelings compared to how they treat the
defence:

A prosecutor described a trial where the judge had been unpleasant and
tough. Afterwards the prosecutor and the judge spoke on the phone
about the case and the judge asked: “Did you think I was unpleasant
towards you?” The prosecutor said yes and the judge explained that he
thought the case was so clear that, in order not to show that he had al-
ready made up his mind about it, he overcompensated by being tough
[towards the prosecutor].
(Fieldnotes, court)

The risk of overcompensating this way in cases where the accused is likely
to be convicted shows that a concern for impartial demeanour does not
necessarily coincide with an impartial state of mind: judges evaluate the
evidence continuously while presiding. They may know where the trial is
headed before it has reached its end; “all the time you sit there, not just
listening but processing” (Kristin, judge, 30+). This should not lead us to
question judges’ objectivity, however: the judge merely considers the objec-
tive evidence to speak for the defendant’s guilt before the trial has ended. If
anything, given the inquisitorial preliminary investigation, the trial is tilted
against the accused from the start, and, from this perspective, the judge’s
role is to compensate for that (Roach Anleu and Mack, 2017: 123). The fact
that judges now and then also do acquit defendants demonstrates their ac-
tual autonomy and power. When that happens, their judgment has nothing
to do with the truth, however, only with the quality of the evidence failing
to meet the requirements. Turning our focus now onto how justice is done,
let us take a closer look at the emotional foundations of the method of legal
evaluation.

Aesthetic pleasure, satisfaction, and confidence in legal evaluation

Interest in legal evaluation implies interest in law and its correct application.
As we saw in Chapter 2, judges are often characterized by their inclina-
tion to ponder on legal issues – their intellectualism. During their training,
judges are also encouraged to orient their interest towards the procedure
 Situated emotion management 147
and the legal meanings and value of the matter at hand. Clerk Jonna, in the
following quote, describes her going from frustrated bewilderment to confi-
dence when acquiring the juridical “method”:

Since I began attending hearings, my attitude has changed a lot, because

in the beginning you were more ambivalent in these situations where
you felt that both parties were rather convincing, and now you have a
completely different method. And it’s really about how you manage it in
such a way that you have a method for evaluating people’s statements.
You have this attitude that you don’t need to reach conclusions about
the truth but you can reach conclusions about what’s proven, and that’s
very – it releases lots of feelings of frustration you’d otherwise get from
not being able to pinpoint who’s lying. […] I’d say that you use it a bit to
protect you from the emotional [aspects] in a way.
(Jonna, clerk, 25+)

Judges have no tools for establishing the truth, but they do have tools for
deciding what has been proven, and when these tools help establishing a
method, as Jonna describes, they orient focus and interest away from the
“emotional sides” deemed irrelevant for evaluating the evidence. In the
quote, we see Jonna’s relief and even enthusiasm when discovering how she
could apply this “method” instead of losing herself in bewilderment about
“the truth”. This method of legal evaluation is taught and habituated as if
it were an objective one, uniform and clear and free of any interpretation
(Bladini, 2013). It takes on an aesthetic character of coherency and consist-
ency, similar to the way scientific models and theories appeal to researchers
(cf. Barbalet, 2011). Mastering the method is a source of professional confi-
dence and satisfaction (pride).
As professional background emotions, confidence, and satisfaction in
the method of evaluating evidence delineate judges’ focus and orient their
interest towards the legal information of the case: “You look at [evidence]
from a juridical perspective, if it falls within the criteria of a particular
legal section” (Kerstin, judge 60+). This orientation is further strength-
ened by emotional trigger warnings, feelings of irritation, at irrelevant
information:

For the lay people involved, it is often the before, or even more often the
after [an event], that is relevant. But for us, that is totally, totally uninter-
esting; or not uninteresting, but you understand what I’m saying.
(Asger, associate judge, 30+)

In this quote, Asger indicates irritation (“totally uninteresting”) at the mis-

match between people’s storytelling and the juridical focus of the trial. Irri-
tation signals the risk of venturing into a different emotive-cognitive frame,
one where judges’ confidence in their method might be endangered.
148 Situated emotion management
The satisfaction judges derive from legal expertise can be quite intense,
even enthusiastic. Judge Niklas (40+) below was shadowed during a long
trial over tax fraud. During breaks, Niklas spoke with admiration of the
skilled “terrier” prosecutor and also expressed his own moral indignation at
the defendant, a wealthy person accused of massive tax evasion. The work of
the prosecutor was indeed meticulous, and at the conclusion of the trial, the
ruling seemed rather obvious. However, on the day of the deliberations with
the lay judges, judge Niklas had worked through the case and the evidence
thoroughly, consulting his books and a trusted senior colleague:

When we enter the room where the lay judges are waiting, the judge pro-
ceeds to declare that the defendant cannot be sentenced for tax fraud.
“So we are forced to acquit,” the judge says. The lay judges are stunned.
“Really?” The judge now starts out on a lengthy explanation, step by
step, involving both critique of the way the evidence was framed by the
prosecutor and reading numerous previous court rulings out loud for
the lay judges. Lay judge 2 admits that it seems they have to let the
defendant go. The judge says: “This is of course not something we do
happily but…” Lay judge 2 picks up: “…this is not about happiness or
sorrow this is about the law!”
(Fieldnotes, court)

As can be seen from the excerpt, Niklas’ professional enthusiasm spread

to the lay judges who were sceptical at first but then won over by the logics
and consistency of the picture conveyed to them. According to Niklas, the
gap in the law was easily overlooked, which was presumably the reason why
an experienced prosecutor specialized in economic crime had also missed
it. In a follow-up interview, Niklas said that the prosecutor was furious at
him for the acquittal. It did not diminish his own pride and satisfaction,
however; rather the opposite: he could be proud not only in his legal exper-
tise, but also in having manifested his judicial autonomy and objectivity, by
acquitting the suspect in a case in which a guilty verdict had seemed almost
certain. In this sense, the method of legal evaluation – with its background
emotions of professional pride, confidence, and even fascination – helped
to create distance from background emotions of moral or private charac-
ter that otherwise might have informed the decision-making. We suggest
that Niklas’ reflections on his moral background emotions, enabling their
articulation (acquitting was “not something we do happily”), was a crucial
element in this process of achieving objectivity in practice.
Leaving aside concerns about the truth or reality, the method of l­egal eval-
uation emphasizes the separation of morality from legal practice (­ Chapter 1).
Such a separation might be particularly pregnant in the Swedish legal cul-
ture, with its high expectations of emotional reserve (Bergman Blix and
Wettergren, 2016) and the idea of the judge as a civil servant rather than
a moral guardian. In her article on “angry judges” in a North American
 Situated emotion management 149
context, Maroney has put forth the notion of “righteous anger”, suggesting
that judges’ anger can function as a voice for society’s moral principles. In
our study, judges rather stressed the separation between (subjective) moral-
ity and (objective) law, seeing them as incompatible in all cases.5 Morality
thus pertains to the irrelevant aspects giving rise to background emotional
trigger warnings:

We have our method and we have our rules and in my opinion the im-
portant thing is – well, as you saw in the deliberations in the rifle case,
we could have easily ventured into a general discussion along the lines
of “was it wise of him to do this, right or wrong, blameworthy…?” The
lay judges did do that, too, but my task as a judge is to evaluate the
evidence according to the rules we have […] and when you do that sys-
tematically, you may end up with something that you think – well, you
might have preferred another outcome, but that’s the way it is now.
(Preben, judge, 45+)

Besides refuting moral judgement, this quote shows – similarly to the ex-
cerpt with Niklas – that discussions with lay judges during the deliberations
may function as a way to articulate judges’ own moral background emo-
tions. “We could…”, Preben says, and indicates that he, too, might have
preferred a different outcome. Forming a “we-group” with the lay judges in
this respect is rather rare, however, as in most cases the professional judges
consider lay judges as an out-group. This enables them to distance their
professional selves from the non-professional lay judges and thereby ascribe
emotions only to the latter (see Chapter 5).
Experienced judges sometimes demonstrate a perceptual split between
attuning to others’ emotions, and recognizing their own emotions. On the
one hand, they skilfully use emotional information to read the feelings of
lay people in order to secure a correct and smooth procedure. On the other
hand, they often completely silence their own emotions in relation to their
judging. This is to say that they develop a tacit and implicit method for as-
sessing and acting on the information brought by emotions of others when
presiding and deliberating (managing the lay judges), but that this method
to assess emotional information is rarely applied to judges’ own emotions.
The emotive-cognitive judicial frame does not readily offer conceptual ac-
cess to judges’ emotions.
Legal evaluation within the emotive-cognitive judicial frame is suppos-
edly facts-based and straightforward; there is the evidence and there are
the rules and procedures governing how to evaluate it in relation to the law.
If the rules and procedures are followed, the verdict will be an objective
fact, not the result of subjective, moral preferences or attitudes (which in
this book we understand as emotive-cognitive positions). Morality is instead
about taking a stance, a judgement based on involvement in a community,
and thereby in a complex and messy reality far removed from the conceptual
150 Situated emotion management
clarity of the law. Adhering to the method of legal evaluation thus allows
judges to sustain belief and interest in the ideal of positivist objectivity (cf.
Wettergren, 2010). Nevertheless, we argue, they can only do this because
they feel the ideal as background (not conscious) emotional cues.
To summarize, we have seen that judges’ professional interest as well as
their feelings of confidence, satisfaction, and pride orient them towards mas-
tery of the two main tools of judges’ objectivity: (1) an impartial demeanour
and (2) the method of legal evaluation (cf. Roach Anleu and Mack, 2017).
The impartial demeanour is upheld by a balanced emotional display, in the
form of either contained expression (passive stone face) or equal expressions
towards both sides. Impartiality may contradict the policy of good treatment,
because a passive stone face is not necessarily understood as neutral by dis-
tressed or upset lay people. In addition, the fact that the positivist notion of
objectivity structures the entire set-up of the trial and the prosecution some-
times results in the impartial demeanour’s seeming favouring of the accused.
With the focus on the evidence and its legal weight and value, questions about
truth and moral values are rendered irrelevant. Judges tend to put emotions
in the same category as these two (truth and moral values), and thus assert
that the method of legal evaluation is unemotional. However, as we have seen,
background emotions are continuously present and necessary for judges’ abil-
ity to identify relevant vs irrelevant information. Ultimately, when they suc-
ceed in judging according to the positivist objectivity ideal, they feel proud.
While judges are both physically and symbolically removed from the ac-
tual crime, prosecutors purify and translate messy reality into legal codes
fitted for the method of legal evaluation. They stand with one foot on each
side – messy reality and the neatly packaged legal reality. For this reason,
their objectivity work is different.

Prosecutors: partial objectivity

It’s kind of tricky that you are supposed to be objective, because of course
we are, but … I mean, we investigate for and against the accused […] until
we prosecute, and then we are still supposed to be objective, but when
you prosecute, you only refer to the evidence…. Once you’re sure that the
overall evidence will hold, you only refer to the evidence that support a
conviction; we don’t call witnesses who appear unsure in this regard –
that’s up to the defence to do – so you are not entirely objective there….
(Lara, prosecutor, 30+)

Prosecutor Lara pinpoints the contradiction and ambiguity at the core of the
prosecutor’s profession. Her description also reveals that she is not quite sure
herself of how to deal with that contradiction and ambiguity, or how the le-
gal system is set up to deal with it. The reliance on the adversarial procedure
in the Swedish version of the civil-law system is based on the assumption that
 Situated emotion management 151
prosecutors can be both objective investigators of a crime and a party (par-
tial) in court. In other words, prosecutors serve justice and the state based
on a dual loyalty/commitment: to maintaining the objectivity and fairness
of the law, on the one hand, and to pursuing and punishing those guilty, on
the other hand (Bandes, 2006; Kjelby, 2015). There is no one solution for all
prosecutors faced by this dilemma – some do not even see it as a dilemma –
but we suggest that the demand for being objective in the investigation phase
(inquisitorial) and partial but still objective in court (accusatorial) leads
prosecutors to explore the difference in practice between impartiality and
objectivity. In this section, we analyse how they go about doing this by bal-
ancing commitment and detachment, and guided by confidence and satisfac-
tion in legal encoding. During preliminary investigations, the prosecutor’s
focus lies on objectivity work and thereby on the purification, translation,
and preparation work that precedes the prosecutor’s appearance in court.

Balancing emotions of commitment and detachment

In contrast to judges, prosecutors safeguard a sense of moral righteousness
inherent in the requirement to be committed to their work. This is not to say
that they see the law and morality as one; they are just as keen as judges to
keep these concepts separate in theory. In Chapter 2, we began discussing
the particularly contradictive requirement on prosecutors to keep switching
between commitment and detachment in order to be able to adhere to the
objectivity ideal. In Chapter 4, we saw an example of how prosecutors try to
maintain a detached relationship to victims, yet remain prepared to become
flexibly engaged when victims need assistance.
Similar flexible detachment and engagement of prosecutors is required
during the investigation phase, when objectivity demands neutral gathering
of evidence while the police may be pressuring for a more partisan approach
(see Chapter 5). In larger-scale investigations, prosecutors may be drawn
into the excitement of the detective work, and the satisfaction coming from
the growing evidence against the suspect (Bandes, 2006). Shadowing pros-
ecutors in large investigations, we observed how they remained neutral and
sceptical during the early investigation phase, before knowing which direc-
tion the investigation would take. When the evidence against a suspect grew
and the case against him or her became stronger, prosecutors’ engagement
in the case grew correspondingly and they could display intensive emotional
involvement. Moral emotions and the feeling rules of the emotive-cognitive
judicial frame merged to fuel each other.
The following excerpt describes a meeting during the investigation con-
ducted in a fraud case. In it, Linus the prosecutor and two police officers
are listening to a series of wiretapped calls made by one of the suspects. The
suspect had telephoned his target/victim – a retired man – several times,
each time pretending to be a different person while trying to find out as
much as possible about the old man’s whereabouts.
152 Situated emotion management
On the recording, the suspect asks the victim: “Are you home alone and
all?” Prosecutor Linus comments [angry voice]: “What an asshole – Are
you home alone!” He discusses with the police officers and concludes:
“[The suspect] is fishing around, trying to find out how [the victim] lives
his life!” During the next call, made at the time of the crime in question,
the recorded suspect suddenly says to someone “Go now!” Prosecutor
Linus repeats that phrase asking the police officers what it might mean.
One of the officers points out that there is also the sound of something
like a car door slammed shut on the recording. They re-play this par-
ticular part of the recording a couple of times, and eventually everyone
clearly hears the sound of the door slamming shut:
Linus [excited]: “Then they are two suspects, one in the car and one
at the crime scene! Have we got both of their mobile phones on the
same mobile tower?!”
Police officer: “This is pure gold. […] This is damn good!!”
Linus: “This is really great! This is so much better than just having the
story of an old man [the victim] describing their shrewdness!”
(Observation, fraud investigation, Linus, prosecutor, 40+)

The sound of the door slamming shut and the suspect saying “Go now!”
meant that they could prove that the two suspects were at the criminal scene
just before the crime took place. Based on the telephones being connected
to the same mobile tower and other pieces of evidence, the investigation
team could infer that the suspect commanded his accomplice to go knock-
ing on the victim’s door to commit the crime. After the meeting, Linus de-
scribed feeling good and happy about the wiretapping’s having paid off so
well. Wiretapping requires lots of resources and it was his responsibility as
a prosecutor to “hit the brakes” as he said, balancing the costs against the
pay-off, asking questions like: “In which ways can this huge amount of ma-
terial be used for prosecution and how can it support a verdict?”
This example with Linus’ fraud investigation tells of the density of the
emotional atmosphere in investigations, in which the police and the pros-
ecutor work closely together and meet regularly to discuss new evidence
and next steps. As we saw, Linus did not refrain from moral judgements
and emotions, and he rejoiced with the police regarding the quality of the
evidence gathered through wiretapping. We also see that Linus’ profes-
sional detachment does not relate to the guilt of the suspect, of which he is
convinced. When asked about his feelings for the suspect, he exclaimed: “A
bloody asshole he is; he makes me mad!” Linus’ detached concern is rather
related to his duty as a state employee to ensure cost efficiency. While the
costs of producing evidence must always be weighed against the severity
of the crime, thinking about the costs may also be a technique for creat-
ing the detachment needed to manage and contain growing emotions of
involvement.
 Situated emotion management 153
At any rate, growing commitment is likely to orient one’s interest, away
from responsiveness to new information that does not conform to the di-
rection in which an investigation is proceeding. Instead, such new infor-
mation becomes wrapped in feelings of irritation, sensitized as “irrelevant”
information. The moment the prosecutor eventually makes the decision to
prosecute, commitment is rather solid and his or her focus narrows on the
presentation of the evidence with the clearly defined aim of obtaining con-
viction. “If I decide to prosecute, I think, based on the investigation I have,
that ‘this will be convicted’” (Dagur, prosecutor, 35+).
During the trial, prosecutors’ commitment may be further fuelled by their
interaction with the victim(s), the behaviour of the defendant(s), and, nota-
bly, the defence lawyer’s enactment of antagonism, which can be either fine-
tuned or more openly aggressive. In one murder case, in which we shadowed
prosecutor Charlotte, all these elements of reinforcement were present. The
investigation had been complicated, demanding lots of resources over several
years, but yielding also a lot of “good” evidence. As a result, Charlotte was
strongly committed to get the defendant convicted. The moral dimension of
her commitment was fuelled by a meeting she had with the victim’s mother:

We walk to the waiting room where the mother is sitting, and prosecutor
Charlotte and she talk for a long time, even a while after the parties have
been called to the courtroom. Charlotte, with tears in her eyes, silently
listens to the mother’s despair and grief, as well as to her thoughts about
both the accused and her [deceased] son.
(Observation, murder, Charlotte, prosecutor, 40+)

As seen in this excerpt, closeness between the victim and the prosecutor can
prompt feelings of empathy for the victim, which are likely to reinforce the
prosecutor’s moral emotions and thereby commitment. In Chapter 4, we dis-
cussed this moral reinforcement in terms of dramaturgical stress – realizing
the real suffering and need for justice behind the dry legal aspects of a case.
The defendant in the above case had confessed to murder, but argued
self-defence, and had a generally soft appearance, which irritated Charlotte.
During the trial, which lasted for several days, her irritation was sometimes
expressed as moral outrage at the defendant for his lack of stamina and his
attempts to appear as a victim himself, instead of assuming responsibility
for what he had done. The defence lawyer wholeheartedly sided with his
client and – in a rather aggressive manner – suggested that the prosecution
was reluctant to see things that spoke to the defendant’s advantage, which
made Charlotte even angrier. In effect, the defence accused the prosecution
for not being objective – a sure way to upset prosecutors.
This said, some prosecutors may well maintain a clear emotional distance
and display only strategic empathy, in the interest of being able to work better
with the victim in the case. It is, furthermore, not impossible for experienced
154 Situated emotion management
prosecutors to actually remain sensitive to incoming new information in
spite of emotional investment: both Charlotte and Linus expressed doubts
regarding their case every now and then throughout the entire trial. During
breaks and lunch hours, Charlotte reflected extensively on every piece of
new information or argument brought up by the defence. Thus, while the
antagonism between the prosecution and the defence in court may reinforce
partiality and counteract prosecutors’ objectivity, the emotive-cognitive
­judicial frame orients prosecutors to at least give the possible objections and
new evidence a good thought before dismissing them. This is because there
is also emotional investment in the emotive-cognitive judicial frame and the
professional pride of sustaining it, which means that prosecutors must be at
least theoretically prepared to bite the bullet and forgo commitment for the
case for the higher purpose of commitment to the professional ideal:

If you can’t manage to [secure enough supporting evidence], then you

must be honest and fair, because in that lies the objectivity. […] I mean,
I have no prestige and to me the issue is not whether I win or lose; that’s
not what you do as a prosecutor. The most important thing is to make
the right decision, so you don’t cause innocent people to be convicted.
[…] You must rather let ten guilty people walk free than wrongfully con-
vict one innocent person.
(Henrik, prosecutor, 50+)

Henrik’s statement represents a standard official response to the question

on commitment vs detachment. Yet it also reflects how the manoeuvre to
maintain detachment is done in terms of emotion management: through
the decoupling of guilt in a moral sense and guilt in the sense of law. There
is intense professional pride in the capacity to let “ten guilty people walk
free rather than wrongfully convict one innocent person”, reinforced by the
shame-warning trigger that convicting innocent people would undermine the
ideal of objective investigations. Yet, in our material, there were also prosecu-
tors who, like Klara (35+), solved the commitment/detachment dilemma by
interpreting the objectivity ideal in a practical rather than idealistic manner:

On the issue of objectivity, Klara says she doesn’t think that prosecutors
always need to be objective. “If the accused has no defence lawyer, I ask
defence questions, too, obviously, but if the accused has a lawyer it’s not my
job to be objective.” She says this with emphasis: “That’s how I look at it.”
(Fieldnotes, prosecution office)

To Klara, her objectivity in court depended on the situation of the coun-

terparty rather than the circumstances of the crime: if there was a defence
lawyer, it was no longer her role to highlight evidence speaking to the defend-
ant’s favour, whether such existed or not. Few prosecutors were as explicit
about this as Klara, but our observations generally confirmed prosecutors’
 Situated emotion management 155
commitment to being partial in court to be stronger when defence lawyers
were present (for more on this, see the last section in this chapter).
Moral emotions are quite visible in prosecutors’ work, both during inves-
tigations and in court. In fact, moral judgements may help achieve profes-
sional detachment, as indicated by Henrik in the quote above, since moral
judgements become an emotional outlet for prosecutors’ potential frustra-
tion of having to withdraw charges. Thus, moral grounds for judging are not
to be confused with legal grounds, but when the two converge, they reinforce
each other and allow for emotional involvement in the particular case. When
the moral and the legal diverge, commitment to the professional goal of ob-
jectivity overrides involvement, and detachment takes its place. Thereby,
pride and satisfaction in commitment may remain intact, but the primary
goal of commitment (to achieve either the objectivity ideal in principle, or to
achieve justice in the particular case) shifts depending on the circumstances.

Aesthetic pleasure, satisfaction, and interest in legal encoding

In line with judges’ aesthetic pleasure and confidence in legal evaluation,
prosecutors find satisfaction and interest in legal encoding. Legal encoding,
as we have seen in this book, is one of the main functions of the prosecutor’s
profession, positioned as they are between messy reality and the reduced
complexity of the legal world. The background emotions of pleasure and
satisfaction in the expertise of legal encoding orient and sustain professional
emotive-cognitive values of detachment, and of the objectivity ideal. Le-
gal encoding determines whether a case can proceed to court or has to be
dropped (and moral judgement and legal judgment diverge). Legal encoding
provides the professional interest and pleasure that spur a minimum level of
commitment even in routine investigations and grey trials.
Perhaps most importantly, legal encoding creates detachment in terms
of emotional distance as prosecutors approach real crimes with a tunnel
vision, protecting them from an emotional involvement that might disrupt
their professionalism. As prosecutor Karen explains, reading the police in-
terrogations of a case is “like a special kind of detailed dissection”, explain-
ing also how she approaches a testimony with an interested “focus on the
prerequisites: How can I prove this?”. Karen continues by giving the exam-
ple of a domestic abuse case:

You read a story in a very different way than a reader who’s not a lawyer.
If you read the defendant’s statement, you know there will be standard
objections like “it was self-defence”. […] So, OK, you read very closely
until to the description of the first hit [Imitates internal dialogue:] “Did
she do anything then? Did she shove him or…? No. OK”. And then
he began: Bam! Then he hit her. And you continue reading that way
­[detailing the abuse]. The rest of the story is less important.
(Karen, prosecutor, 30+)
156 Situated emotion management
In this excerpt, Karen’s strong professional focus is conveyed by the contrast
between, on the one hand, the dry interest and focus on the prerequisites and
evidence of the abuse, and, on the other hand, the underlying narrative as such,
which contains vivid emotional cues (“Bam!”) that are left uncommented. A
man hits his girlfriend or wife, unprovoked. Karen approaches the story with
an interest in legal encoding, and her description of how this works conveys
satisfaction at finding the prerequisites for an abuse and not a self-defence (“did
she shove him?”), and thereafter a sense of disinterest (“the rest is less impor-
tant”). This satisfaction and Karen’s subsequent waning interest illustrate pros-
ecutors’ aesthetic pleasure in terms of logics and consistency in building a case.
The emotional processes surrounding the selection and presentation of a
case in court, once the decision to prosecute has been made, are similarly
oriented by aesthetic feelings of consistency and logic. Evidence has been
deemed sufficient for conviction, but there is usually a lot more evidence
than can be presented. Deciding what kind of evidence to include and what
to leave out is therefore another vital part of the legal encoding, as shown
when prosecutor Cecilia (35+) prepares for an upcoming trial:

She shows me a statement where a witness has said that it was not like a
stab, but that he rather dug into her with the knife – “that gives a sense
of intent, not just a temporary rage”. She has highlighted that sentence
and written “good” on a sticky note next to it.
(Fieldnotes, prosecution office)

The excerpt speaks of both the judicial emotive-cognitive orientation with

the associated emotional distance and the commitment to the case at hand
(“good” evidence). When prosecutors decide to prosecute, they prepare their
cases with an eye to convincing the court, and although they may be increas-
ingly morally committed and emotionally involved, they also maintain an
emotional distance necessary for their ability to do their work.
We see that the emotive-cognitive judicial frame orients prosecutors’ ap-
proach to criminal events through their interest in legal encoding and the
pleasure they derive from the beauty of finding new evidence that fits the pic-
ture. At the same time, this emotive-cognitive orientation almost automat-
ically forecloses any emotional distractions, achieving emotional distance.
Although, as we saw in the previous section, empathetic emotions may bring
prosecutors close to the victim during the trial, and although moral and profes-
sional impetus of commitment intersect through this, prosecutors’ prioritized
orientation is professional, and professional goals may be variously motivated
and oriented by background emotions of detachment and moral involvement.
In terms of commitment vs detachment, it should be clear that emotional
distance is not the same as detachment. As we have seen, commitment to
the case develops during the course of an investigation. Commitment can
thus be entirely professional until prosecutors go to court and begin to in-
teract with the victim. It is at that point that their commitment can also
 Situated emotion management 157
be reinforced by empathic perspective-taking of the victim, and in some
cases – as discussed in Chapter 4 (p. 111ff) – dramaturgical stress makes
it hard to uphold emotional distance. In the next and last section of this
chapter, we combine the orientations of the different legal professionals to
analyse the collaborative elements of performing objective justice in court.

Objectivity work as collective achievement

In court, the different legal professionals with their different emotional pro-
files meet and interact. Judges’ focus on impartiality and legal evaluation
and prosecutors’ focus on partial objectivity and legal encoding collaborate
there, (ideally) achieving the objective rule of law. For this to happen, the
tools of tacit signals and emotional communication (Chapter 4) need to be
in place and mutually understood, and the power and status relations be-
tween the legal professionals (Chapter 5) must be respected.
Empathic perspective-taking belongs to judges’ emotion management
tools intended to not only help achieve a smooth procedure, but also at-
tain the goal of the trial: correct procedure and good treatment. As we saw
in the section on judges’ impartiality above in this chapter, the balanced
display of emotional expressions, crucial to impartial demeanour, becomes
endangered if there is more need for empathic engagement on the part of
one side. Other legal professionals may then step in to prevent the possible
disturbance of the court ritual:

I had a victim – it was a sexual offence – and she was literally shaking
[…] and then it became a kind of teamwork between the victim’s counsel
and me. Because it’s important that it’s primarily the victim’s counsel
who is the one caring for her client. It’s about the court’s independence,
that you don’t […] end up in a situation where the defendant feels that
“they only care about the victim, I’m probably screwed already”.
(Naomi, chief judge, 50+)

Naomi is concerned about the emotionally upset victim because it may cause
disturbance to the smooth procedure. Although only implied in the quote,
by keeping her focus on impartial demeanour Naomi made sure through
emotional communication that the victim’s counsel would take necessary
precautions to comfort her client.
The system with victim counsels was introduced in order to strengthen
the legal position of victims, but it has also had the consequence of support-
ing (emotional) distance between the prosecutor and the victim and thus of
preventing any confusion about the fact that the prosecutor represents the
state and not the victim. Yet, our data shows that as parties in court, prose-
cutors generally consider empathic engagement with the victim to be part of
their tasks, and they rarely trust victim counsels to fulfil this function alone.
For good reasons, as it often turns out:
158 Situated emotion management
The hall outside of the courtroom is full of people on this first day of the
murder trial. The murder victim’s husband approaches and the prosecu-
tor sits down with him on a sofa. […] She gives him all her attention and
takes time to listen to his worries about the trial. The injured party’s
counsel stands silently by their side for a short while and then leaves to
chitchat and laugh with another lawyer a few feet away.
(Observation, murder, Cecilia, prosecutor, 35+)

Unlike this counsel, good victim counsels not only relieve the prosecutor –
and the judge – of some of their emotion management burden vis-à-vis the
victim, but, if they are skilled, also complement and sometimes improve pros-
ecutors’ examinations and closing statements with their own contributions.
Defence lawyers, of course, play a crucial role in the collaborative perfor-
mance of objectivity work in court. The right to a defence is a cornerstone of
the rule-of-law system, and both judges and prosecutors appreciate defence
lawyers for this reason. However, in minor offences the defendant is usually
unrepresented and both the prosecutor and the judge endeavour to support
the defendant, thus substituting for the absence of a legal counsel:

If they don’t have [a defence lawyer], then I have to think a bit about
asking questions that illuminate the case from different perspectives.
[…] And then the judge can also take the defence’s role and ask ques-
tions that should be asked from the accused person’s perspective.
(Elsa, prosecutor, 50+)

Here Elsa describes how she has to engage in empathic perspective-taking

beyond the goal of pursuing her case against the accused, in order to also
imagine the perspective of the defence (Wettergren and Bergman Blix, 2016).
For prosecutors, these occasions to perform their objective role may not
only bring professional pride, but they also demand a “double conscious-
ness” (Goffman, 1990) that may be difficult to uphold.
If the role of the defence lawyer in the tripartite performance of objec-
tive justice is obvious when there are no defence lawyers assigned, it is a
great source of prosecutorial irritation when lawyers fulfil their roles badly.
Bad lawyers, from the perspective of prosecutors, are those who make too
big a case – perhaps a show, even – of defending their client. Lawyers who
make reasonable objections and grasp the quality of the evidence presented
against their client are instead well liked for their part in performing the
collaborative objectivity work. As explained by Valdemar:

Prosecutor Valdemar: There is this very skilled elderly defence lawyer

who, if [he sees that] his client is done for, gets them to confess nine
times out of ten and instead focuses on the sanction part. Then there are
lawyers who are the exact opposite, lawyers who, in spite of overwhelm-
ing evidence, keep shouting about this and that, who keep complicating
 Situated emotion management 159
things and keep calling witnesses who might even be committing per-
jury. That’s not something a good defence lawyer does; it just delays the
process and makes it more costly, and sometimes it also puts the client
in a worse position.
Researcher: And still the same outcome.
Valdemar: Yes, although through a much more cumbersome process that
costs more and brings more unnecessary suffering for everyone involved.
(Valdemar, assistant prosecutor, 30+)

As indicated in this quote, following the emotive-cognitive judicial frame,

the evidence put forward by the prosecutor are objective. Lawyers that ac-
cept this claim also acknowledge the status of prosecutors as objective in the
preliminary investigation, evoking emotions of mutual respect and recogni-
tion. Nevertheless, as we saw earlier in this chapter, even lawyers who insist
on the point of their client’s innocence when the evidence is overwhelming
may force the prosecutors to rethink something of relevance. In relation to
the overall goal of achieving objectivity, they are therefore considered better
collaborators compared to passive or disinterested lawyers.
We have seen that prosecutors take pride in their capacity to withdraw
charges if new information undermines their case in court. However, in ac-
tual practice, this capacity is often circumscribed. They are only allowed to
change another prosecutor’s decision to prosecute if there are new evidence.
Furthermore, to openly dismiss or disapprove of a colleague’s decision to
prosecute goes against the team spirit and solidarity of prosecutors. As we
have seen, unlike judges, prosecutors have quite a lot of respect and toler-
ance for collegial mistakes, given their workload and the frequent change of
prosecutors in primarily minor cases. As part of their bounded independ-
ence, they are also careful not to evoke resentment among the investigating
police officers by openly dismissing their work.
The most common thing to do is instead to signal one’s wish to withdraw a
case by tacit signals to the judge. For instance, one can steer the examinations
in a way that calls attention to inconsistencies in the evidence (if a defence
lawyer is absent or bad). In one case, a man was accused of threatening a
security guard at a pub, but in the examination of the witness, serious doubts
were cast on the security guard’s/victim’s story. It appeared that the guard
had kicked the defendant’s girlfriend and the defendant then told the guard
that he “won’t get away with that”. At the trial, the prosecutor probed into
this version of the story, thereby highlighting the doubts regarding the victim
to the judge. After the trial, the researcher met the prosecutor Bertil (45+):

When I meet the prosecutor on my way home, he says that sometimes

he wonders what has actually happened. “I don’t want to be a part of
someone being convicted on faulty grounds. Sometimes with security
guards, you wonder if it’s not the defendant who actually is the victim.”
(Fieldnotes, prosecution office)
160 Situated emotion management
In this case, prosecutor Bertil afterwards admitted having felt unsure about
the case, and yet he did not withdraw the charges but instead made sure to
bring to light all the questionable aspects involved in the victim’s story (the
court acquitted the defendant). In a similar fashion, phrases like “I will leave
it to the justice to decide” in prosecutors’ closing statements serve as indi-
cations of the weakness of the case. Judges normally register such signals:

I’ve had prosecutors who are really sincere and say, “There’s a lot that
speaks against the case, so I’ll leave it to the justice to decide”. [They
say this] because many have … well, they can’t go against a colleague’s
decision to prosecute, for instance, so they can’t tell the court to acquit,
and they can’t withdraw the charges, but they can formulate it like “I’ll
leave it to the justice to decide, whether this has been proven or not”.
(Ellinor, judge, 35+)

Tacit signals and emotional communication are important for the collaborative
achievement of objectivity in court. Because they are tacit and build on silent
knowledge acquired through experience, and because some signals may re-
quire understanding of other legal professionals’ way of communicating, these
signals are not always picked up, nor understood, and sometimes they miss the
target. This is particularly the case for judges who do not want to risk sounding
partial and instead become too subtle. In our observations, judges’ tacit com-
munication was often difficult for prosecutors to detect, as corroborated by
those among them who had formally been judges. They spoke of having the ad-
vantage of “sort of knowing how judges think” (Lovisa, prosecutor, 40+) and
of needing to often explain those signals to their colleagues. Lovisa continues:

[When I was a judge] I didn’t want to say it openly, because you didn’t
want to help the prosecutor to the extent that you became partial. That’s
hard, and it can become really strange, because the judge is hinting
something and the prosecutor doesn’t understand the hint at all.
(Lovisa, prosecutor, 40+)

If and when judges decide to be explicit, it may go wrong. During our data
collection at one court, a judge in a fraud trial in another court had to re-
sign from a case after having been seen giving the prosecutors a note out-
side of the hearing, instructing them to adjust the charges of the criminal act
(Malmö District Court, case B 645-13). Following the objectivity ideal, the
prosecutors reported the judge for conflict of interest. The event became a
topic of conversation among the judges in the courts where we collected data:

The chief prosecutor says he is ashamed on behalf of the judiciary: “It’s

abominable for a judge to act like that; it undermines public trust and
the legitimacy of the legal system”. The story circulates as a joke, and is
repeatedly referred to during coffee breaks.
(Fieldnotes, court)
 Situated emotion management 161
Disgust (“it is abominable”) here is a moral emotional evaluation deriving
from another person’s claim to undue status (Kemper, 2011). Together with
the way that this incident was discussed, it was clear that judges in our court
felt ashamed on behalf of their colleague who, undermining the trust in the
entire legal system, had proved unworthy of the status of the judge.
While judges and prosecutors share the same emotive-cognitive judicial
frame, they realize its ideals – and particularly the ideal of objectivity – in
different ways. The mutual collegial tolerance among prosecutors can be
seen as a way to avoid shaming one another in a professional context where
one is consistently subject to routine shaming and where demonstrated in-
sensitivity is a means of gaining professional confidence. It stands in stark
contrast to the poignant sensitivity of judges to their colleagues’ profes-
sional transgressions and mistakes.

Conclusion
Objectivity work in practice is emotionally loaded and requires skilled emotion
management as well as sensitivity to tacit signals and emotional communica-
tion. The emotive-cognitive frame provides background orienting emotions,
notably professional pride and shame, to help sustain the ideal of positivist ob-
jectivity. Meanwhile the feeling rules of the frame foreclose emotional reflexiv-
ity regarding background emotions influencing judicial decision-making.
Judges’ objectivity work is focused on impartial demeanour, whereas
prosecutors’ objectivity work is contingent and shifting, depending on devel-
opments during the preliminary investigation and in court. Prosecutors con-
tinuously balance between commitment and detachment, striving to solve the
dilemma of being partial yet objective. The emotive-cognitive judicial frame
shared by judges and prosecutors does not allow law and morality to be con-
founded. Yet, prosecutors can comment on issues they find morally reprehen-
sive, even when they need to mark that their moral evaluation is distinct from
their professional decision-making. For judges, morality is above all associ-
ated with lay judges’ emotional opinions and misunderstanding of the rule of
law. The method of legal evaluation should be free from any moral judgement.
As translators (into the legal code), prosecutors need to manage emotions
of involvement and commitment regarding the moral aspects of the cases they
investigate and take to court. Their closeness to real events and the suffering
involved makes dramaturgical stress a bigger issue for them than for judges.
At the same time, prosecutors’ method of legal encoding is vital for their abil-
ity to maintain emotional distance. Legal encoding provides the interest and
orientation prosecutors need to follow their professional duty to dismiss cases
that lack enough evidence to show a crime was committed, regardless of their
level of (moral) involvement. By separating guilt in the moral sense from guilt
in the legal sense, they can retain their pride in professional integrity.
Even if the method of legal evaluation also helps judges to keep an emo-
tional distance and orient their interest away from issues of truth, they
rarely face the question of emotional involvement as urgently as prosecutors
162 Situated emotion management
do. The higher one gets in the legal hierarchy and the further the case pro-
ceeds, the more taboo it becomes to express moral emotions. This dissocia-
tion between morality and legal interpretation can be linked to the aesthetic
dimension. The more removed from messy reality the case is, the more it
becomes adjusted to legal interpretation. It is thus easier for judges to focus
on the form, while prosecutors remain closer to the content.

Notes
1 https://en.oxforddictionaries.com. Search words were “objective”, “objectivity”,
“impartial”, and “impartiality”.
2 The appeal court trials do not include new examinations and cross-examinations,
but instead the court reviews the video-recorded examinations from the district
court.
3 Interestingly, Roach Anleu and Mack found that compassion was valued as im-
portant (and for men even more important) as empathy by Australian ­magistrates
(cf. Roach Anleu and Mack, 2017: 69).
4 In 2014, 92% of the prosecuted cases lead to a guilty verdict in court (Nordén,
2015).
5 Interestingly, the only exception here were trials involving young offenders, at
the end of which judges sometimes did express moral judgements, voicing moral
concerns of a caring adult world in the hopes of persuading the offender(s) to
thereafter stay away from a life of crime.
7 Concluding discussion

O
ne key contribution of this book, we argue, is its detailed demon-
stration of how the emotive-cognitive judicial frame systematically
­silences emotions. In our data, even participants who willingly spoke
about professional emotions and emotional processes had trouble articulat-
ing these. The emotive-cognitive judicial frame has no workable concepts,
no distinct language for disentangling, ordering, or evaluating emotional
information (see also Maroney, 2011). Evidently, the emotive-cognitive
frame has a self-disciplining and performative function (Foucault, 1995;
Reddy, 2001). “Emotion talk” does not need to be explicitly prohibited for
the legal professionals to realize that it does not belong to the professional
arena. ­Reversely, emotions are associated with the private, or, more ­exactly,
the weak and failing private self. Nevertheless, by demonstrating how
­background ­emotions are part and parcel of the emotive-cognitive frame’s
silencing of emotions, in the various dimensions of legal practice, we have
come closer to an u­ nderstanding of how emotional processes are fundamen-
tal to professional life at large. In the following, we will first summarize the
chapters and then expound upon some central themes in this book.

Summary
Prosecutors and judges share the same background in legal education and, in
Sweden, also in having served as a clerk in a court before entering into their
separate legal specializations. This shared training entails adherence to ‘the
emotive-cognitive judicial frame’. The emotive-cognitive judicial frame pro-
vides the context within which legal professionals interpret their everyday
work and interactions as essentially dispassionate or non-­emotional, thus
silencing the impact that emotions nevertheless have. ­Furthermore, the ju-
dicial frame is sustained and reproduced by emotions as implicated by the
concept of ‘group charisma’ (Elias and Scotson, 1994). Group ­charisma adds
the dimensions of collectivity and social status group, to Collins’ (2004) in-
teraction ritual theory. It is not only social bonds (­ solidarity) and emotional
energy (individual emotional resources) that are generated in interaction
rituals, but, depending on each group’s social status, group charisma. The

DOI: 10.4324/9781315306759-7
164 Concluding discussion
concept of group charisma refers directly to the fact that not all groups in
society (whether professional or other) are capable of generating the same
amount of solidarity and emotional energy. To be a member of the com-
munity of legal professionals promotes confidence, pride, and security
­(emotional energy). Individual members will therefore submit to the hard-
ships and potential suffering involved in upholding the group’s core values
and ideals, oriented by pride in living up to the ideals and shame when fail-
ing to do so.
Although all legal professionals adhere to the judicial frame, their differ-
ent work tasks and organizational settings lead them to develop different
‘emotional profiles’ consisting of everyday background emotional processes
and emotion management strategies. Judges are at the top of the status hi-
erarchy among the legal professions, as emphasized by the selection process
into the judge profession and its continuous evaluation over several years to
secure juridical excellence and “good judgement”. Judges embody impar-
tiality and independent pursuit of justice through their autonomous posi-
tion. Their habituation and performance of autonomy are central for the
legitimacy of the legal system as a whole and they proudly embody that
system. Paradoxically, the judges’ performance of autonomy depends on
the prosecutors’ ability to perform their role to purify, mediate, and en-
code messy reality into ordered matter to which the judges can apply their
method of legal evaluation.
Prosecutors take pride in their purifying and translating role, but they
are also exposed to critique and pressure due to their mediating position.
The continuous attacks on their professional selves from lay people such as
victims and defendants, as well as from other professionals such as police,
defence lawyers, and judges, accentuate what we regard as their ‘bounded
independence’: a constant pull between holding strong judicial power, on
the one hand, and dependence on others to perform their work, on the other
hand. In contrast to the constitutional loneliness of judges, prosecutors rely
on their strong sense of solidarity with other prosecutors and their relatively
high degree of tolerance for collegial mistakes. While judges embrace the
ideal of positivist objectivity in their strict focus on evaluating evidence,
prosecutors’ objectivity work implies a navigation between positivist objec-
tivity and embedded truth-seeking, as shown in their responsibility to pres-
ent objective evidence in court, yet be alert to heed potential counterclaims.
Prosecutors take pride in their flexible capacity to balance detachment and
commitment. The division of labour and the distinct emotional profiles of
prosecutors and judges are vital for the emotive-cognitive judicial frame’s
systematic silencing of emotions, and thus for sustaining the core ideal of
positivist objectivity.
The organizational settings of the courts and prosecution offices also
shape the emotional profiles of the respective professions. For judges, work
is fundamentally organized around time as a tool; they take pride in contem-
plation and reflection. Prosecutors’ work, on the other hand, is organized
 Concluding discussion 165
around time as a challenge; they take pride in their capacity to make quick
decisions and to let go. These different relations to time support the orienta-
tion towards autonomy for judges as well as the bounded independence and
teamwork for prosecutors.
Both professions are influenced by New Public Management ideals such
as an increased focus on measuring outcomes, more administration, and
digitalization, all leading to tighter time frames and a faster work pace.
These features provide emotion management tools in themselves by organ-
izing work in an assembly line structure, in effect pushing for emotional
detachment. The call for time efficiency has also put more focus on “good
treatment policies” to counteract the effects of an augmented mechaniza-
tion. This focus, in contrast, leads to higher demands on judges in particular
to develop deliberate emotion management strategies, including empathy,
when meeting lay people in court.
The only articulated emotion in the court and prosecution organizations
is fear related to threats. The growing attention to threats and focus on
security alert the legal professionals to potential experiences of fear in their
work. The feeling of fear, however, can be seen as an anomaly to a fair and
legitimate legal system; increased control and security undermines trust
and transparency in legal institutions. The legal professionals are there-
fore reluctant to give way to fear since fear undermines their professional
self-confidence as well as confidence in the legitimacy of the legal system.
The disconnection between emotions and a belief in the legitimacy
of the legal system safeguards the silencing of emotions implied in the
­emotive-cognitive judicial frame and promotes a ‘teflon culture’, assuming
that emotions do not stick to legal professionals. The teflon culture under-
mines professional mechanisms for deliberate emotion management and
renders emotions insignificant through techniques of ‘othering’, associating
­emotional distress with specified or unspecified others rather than them-
selves, and with ‘ventriloquism’, talking about emotions in indirect ways.
A professional, it seems, endures emotional hardships, work pressure, and
stress because they “don’t have any emotions”. The ability to manage emo-
tions is explained by innate personality traits; traits that fit or do not fit with
being a professional. As a result, even when management offers debriefing
at the workplace, there is a general reluctance to use these resources. Sub-
mission to, and endurance of, hardships further accentuate group charisma
and the recognition of belonging accorded to the individuals who possess
the required personality traits.
To uncover the implicit background emotions and emotion management
necessary for everyday legal work, it is efficient to approach the court as a
theatre, including a stage (the courtroom), a script (the code of judicial pro-
cedure), and an appropriate language (the legal code). In order to perform
the drama (moving a hearing forward in a procedurally correct manner),
the legal professionals all need to play their parts, and emotionally tune
in and communicate both openly, with lay people, and tacitly, with each
166 Concluding discussion
other. They need to cooperate around challenges and obstacles, and pro-
duce the emotional authenticity needed for the lay audience’s trust in the
performance of justice.
Open communication directed at lay people is primarily made with the
use of the two professional masks: ‘stone face’ and ‘poker face’ accompanied
by subtle bodily gestures. Stone face is the primary judge mask communi-
cating impartial listening, while poker face primarily is employed by pros-
ecutors (and defence lawyers) to perform their adversarial parts in court.
Both masks demand emotional toning – amplifying or attenuating emo-
tional display depending on role requirements. ‘Tacit signals’ are used in
inter-professional communication, primarily through looks and subtle ges-
tures, such as the judge putting down her/his pen to communicate irritation.
The legal professionals closely follow the procedural script, but the presence
of lay people and the potentially dramatic content of the cases often de-
mand improvisation. The professional actors employ ‘situated adaptation’
and ‘strategic empathy’ to better anticipate and avert potential obstacles for
a smooth and procedurally correct hearing. The emotive-cognitive judicial
frame embraces all these performing tools, but lay people’s expectations on
justice nevertheless entail potential ruptures of the frame, producing profes-
sional ‘dramaturgical stress’, such as when bureaucratic mishaps increase
lay peoples’ suffering.
The court ritual as well as the backstage legal work also rest on relations
of dependence. Judges and prosecutors both belong to the powerful group
that incarnates the state’s monopoly of violence. Representing state agency
equals power and power is an ambivalent “thing” to possess. Both judges
and prosecutors balance power and status in order to avoid the naked face
of repressive power. Power in a democratic context needs to be legitimate
and legitimacy is associated with status; a person’s judgment and delibera-
tions will be heeded if the person is respected. The way power is mitigated
by status follows the same logic for institutions, which is essentially the idea
with procedural justice. The objectivity (impartiality and fairness) of power
is also crucial for legitimacy. This said, prosecutors and judges approach
their power and status as state representatives in different ways. Prosecu-
tors’ bounded independence and judges’ autonomy produce different power
and status relations, adding to the different emotional profiles of judges
and prosecutors within the emotive-cognitive judicial frame. The role of
the judge is tied not only to confidence and comfort of being in power, but
also to conceivable emotions of guilt and remorse if their power is misused.
Some judges habituate power by integrating its performance into their
self-perception, accepting personal responsibility for their decisions. Oth-
ers take a bureaucratic approach. They deny being in a position of power
declaring that they merely apply the law. In court, the judge depends on
ritual deference from the other professional actors to achieve legitimacy for
the procedure. During deliberations, the judge engages in strategic emotion
management to secure status and produce legitimate decisions.
 Concluding discussion 167
The role of the prosecutor is tied to high empathic and emotion manage-
ment skills, due to their bounded independence. Their power is mitigated by
continuous negotiation of status to secure good relations to a multitude of
actors such as police and judges. However, prosecutors’ empathic skills are
also combined with an insensitivity to others’ emotions in order to secure
their objective power, such as when they lose status by forcing victims to
carry through with charges they want to withdraw. This complex web of sta-
tus and power relations makes it a crucial capacity for prosecutors to flex-
ibly manage and predict others’ emotions and adapt relationally to them.
Judges’ objectivity work is primarily oriented towards impartiality – the
way justice is seen to be done in an objective way. They also focus on the
method of legal evaluation to ensure that they do not concern themselves with
moral judgement or beliefs about the truth. Prosecutors’ objectivity work in-
stead balances requirements of commitment and detachment, and becomes
particularly precarious when they assume their role as a party in court.
In court, ideally, legal professionals engage in joint objectivity work, prem-
ised by their different roles and emotional profiles, in order to secure the per-
formance of objective justice. While failure to fulfil one’s role causes discomfort
and irritation for the other legal professionals, inter-professional power and
status challenges, for the sake of manifesting one’s professional self, also occur.
Professional pride, power, and status are highly charged dimensions for legal
professionals. Meanwhile, the smooth working of a hearing presumes mutual
respect and ritual deference. Successful cooperation in this regard is often seen
when the defendant is a first-time offender, young, insecure, and regretful, or
in other ways intimidated by the sheer fact of (having to) being in court.
The emotive-cognitive judicial frame positions morality on the ‘other’ –
irrelevant – side along with the emotions. We argue, to the contrary, that the
rule of law rests on institutionalized collective moral consciousness and that
the emotive-cognitive judicial frame is a moral compass in its own right, al-
beit concerning good or bad ways to pursue the rule of law. As we have seen,
common sense morality and perceptions of justice are closer to, and more
readily expressed by, prosecutors who in their purifying work straddle the
boundary between the messy reality and the legal code.

The emotive-cognitive judicial frame and the self

The emotive-cognitive judicial frame shared and habituated by judges and
prosecutors (perhaps lawyers in general) renders, we suggest, powerful
group charisma, shaping the respective professional selves. Group charisma
conceptualizes the simultaneous and ongoing subjectivation to, and habit-
uation of, group norms and values, including the “right” and “wrong” ways
to feel and think about one-self and about the world (cf. Johnson, 2010).
Group charisma (Elias and Scotson, 1994) furthermore explains the magic
spell of sacred values that have become the tacit nodal points of a group’s
self-image, values that are thus both persistent and irritable. Sacred values
168 Concluding discussion
become habituated by training. They become what Monique Scheer (2012)
calls “emotions as practice”. To submit these values to scrutiny is therefore
associated with discomfort for the individual. The intensity of the felt discom-
fort varies individually, but some level of discomfort is bound to be felt.
The way that the emotive-cognitive judicial frame thus influences profes-
sional performance is bound to affect also the private self. As we have seen,
when we discussed habituation of power in the case of judges (Chapter 2),
professional subjectivation is aligned with the construction of one’s sense of
self. This means that part of the ‘ontological security’ of legal professionals’
construction of ‘self’ relies on the values and ideals of the emotive-­cognitive
judicial frame. An interesting point about the concept of ‘dramaturgical
stress’ (discussed in Chapter 4) is that it highlights the investment of the self
in the professional role. When the professional sense of legitimate justice, as
incorporated within the judicial frame, is threatened by the “realness” of the
situation, as when prosecutor Henrik felt an overwhelming responsibility for
the father’s ordeal during the murder trial of a young girl, a crack in the frame
occurs. The resulting dramaturgical stress signals an impending disconnec-
tion between the performance of justice according to the emotive-cognitive
frame and the performance of justice according to lay people’s expectations.
But it also signals an impending crack between self and the professional role
that threatens the status of both; their ontological security is destabilized.
Peter Freund links dramaturgical stress to vulnerable, low-status groups, ar-
guing that threats to ontological security derives from being in a vulnerable
position, lacking a status shield, while having to be “open to the world” (1998:
285). However, as we have shown, high-status professionals in court whose
power and independence to some extent is depending on the performance
and deference of other professionals, along with a continuous demand for
‘situated adaption’, also need to be “open to the world”, and thus vulnerable
to threats to their definition of the situation within the emotive-cognitive
­judicial frame.
Nonetheless, the investment of self in the emotive-cognitive judicial frame
makes the frame persistent and enduring in line with Elias’ reasoning that
“affective experiences and fantasies of individual people are not arbitrary”
(1994: xxxvi) – they are created by and closely linked to the group and
therefore likely to be strongly defended both individually and by the group.
While “the elasticity of the bonds linking a person’s self-regulation to the
regulating pressures of a we-group” can vary on the individual level, it “has
no zero-point” (Ibid: xii). This is to say that – because the individual sense
of worth derives from group-relations – there is no such thing as an autono-
mous individual who can entirely escape the self-regulation imposed by the
group’s sacred values.
As implied by judge Christer (vignette, Chapter 5), in his argument about
judges needing to habituate comfort in power, while remaining humble, the
legitimacy of the powerful positions of legal professionals necessitates a
continuous sensitivity to cracks, in effect to being vulnerable. Judges and
 Concluding discussion 169
prosecutors need to balance their comfort and pride, on the one hand, and
humbleness and potential guilt, on the other hand. If taken too far, the aes-
thetic pleasure and pride in procedural correctness and legal encoding can
become a way to tail away reality while trying to fit it with the model, in this
case the law. Reality is never perfectly compatible with the legal frame, it is
chaotic and unruly. The court needs to find a balance between the exactness
and perfection of the legal frame and the chaotic reality represented by the
laypeople whose narratives are heard in court. This can be paralleled to We-
ber’s concerns about the iron cage of bureaucracy (Weber, 1995). The legal
system’s exactness and repeatability representing the ultimate iron cage rub
against the chaos of reality. This creates an inbuilt tension in the hearings, a
tension that is vital to preserve in order for justice to be just – if the law gets
too much latitude we get the iron cage, if reality gets too much latitude we
get chaos. In the same way, researchers can become so beguiled by their the-
oretical models that they lose sight of what the model is supposed to explain.
Reality can become a disturbance rather than a foundation for the model.
On a more general note, we can see that in a frame that expects emotion-
lessness, we do not get less emotion, but rather a toning down of emotional
display. The toning down in the Swedish court is extreme to the extent that
subtly putting down a pen can signal a strong emotion. This implies that
only professionals who themselves are part of the frame detect the ongoing
emotional interaction, but also that to communicate, the legal professionals
need to become very sensitive to emotions. An allegedly emotion-free ra-
tional environment thus raises emotional sensitivity.

Refuges of the emotive-cognitive judicial frame

As we have seen, some of the hardships that submission to the group cha-
risma of lawyers requires are associated with the inconsistencies and strain
of the feeling rules of the emotive-cognitive judicial frame. In Reddy’s words,
submission to an emotional regime always causes some degree of emotional
suffering, and the extent to which this suffering is alleviated has to do with
the access to “emotional refuges” (Reddy, 2001). The use of the concept of
frame (Goffman, 1974) makes it possible to distinguish different ways of
managing emotions within different frames – the front-stage professional
expressions are subject to distinct rules of subtle expressivity, which inter-
estingly does not block backstage vivid expressions when recounting and/
or ventilating the front-stage experiences. The norms of non-emotionality
and the focus on moving the procedure forward further a “letting go” of
interactional emotional sparks, parking them out of the way until the coffee
break or the ride home from work. In this way, the emotive-cognitive judi-
cial frame can become habituated and thus be performed without deliber-
ate or conscious strain, yet remain one of several frames within which the
legal actors perform. The strictness and elaborate rules of the professional
court performance demand meticulous emotion management training and
170 Concluding discussion
habituation, but the evident front-stage rituality also paves the way for alter-
native frames in adjacent settings.
The emotional experience of performing objectivity and professionalism
is largely the same in both back- and front-stage presentations. As described
by judge Ruth in Chapter 1, her seriousness is an enduring and important
emotion for her continuing after her retirement. Just like priests cannot be-
lieve a little less in God on their days off, judges cannot embrace objectivity
a little less in the office than in a trial. Their emotional display, or how they
express their emotions, however, is differentiated between the two arenas.
The front-stage presentation is both restricted by the ritual (the code of ju-
dicial procedure), and by the ideal of non-emotional objectivity. The back-
stage, as described, shares the same “objective experience” as the front stage,
but the presentation can be less conscientious and more relaxed. Judges, for
example, never express any preliminary judgment, when the lay judges are
present, and clearly distance themselves from any values that the lay judges
sometimes express in breaks, but when the door closes and they are alone
with the clerk, they can discuss where it leans, etc.; they both know that they
are objective. The prosecutors can easily switch from the backstage joking
about a type of defendant to the front-stage stearn demeanour: they know
that all legal professionals backstage are objective. When we as researchers
came to the courts and prosecution offices, this switch could almost happen
midsentence; start out with the front-stage demeanour, and then relax back
to the “sloppy” presentation when we became trusted.

Emotional profiles
The concept of emotional profile pertains to how emotional reflexivity and
emotion management are differently shaped for judges and prosecutors.
Their different power and status relations, their different types of objectiv-
ity work, and their different types of organizations (courts vs prosecution
offices) generate different emotional profiles for the professionals working
there, even though both professions share the same basic legal training and
work in the same courts (Table 7.1).
In terms of the script of judicial dispassion, identified by a number of
previous studies on emotions in court (Maroney and Gross, 2014), it can
be argued that the different emotional profiles are also shaped by the need
to reproduce and sustain the illusion that emotions are irrelevant in legal
professional work. In fact, the judges’ lower dependency on others’ acqui-
escence and collaboration makes the division between emotion and ration-
ality more readily reproduced by them at a discursive level. In contrast,
prosecutors more readily recognize and speak of the emotion management
skills needed in interactions with police, lay people, and other court profes-
sionals. Given these insights, judges are less likely to tolerate ruptures in the
presentation of objective justice and are more sensitive to critique against
the legal system, than are prosecutors.
 Concluding discussion 171
Table 7.1 P
 rofessional emotional profiles of judging and prosecution

The emotive-cognitive Judges Prosecutors

judicial frame

Status Purity, removed from Dirty work, straddling messy

messy reality reality and the judicial code
Positivist objectivity Impartiality; stone face ‘Be’ objective; poker face,
or balanced emotional balance detachment and
display commitment, reflexivity
Time Work tool; intellectual Challenge; quick decision-
contemplation making, multitasking
Power Bureaucratic, responsible Status as power resource
Independence Autonomy, seclusion Bounded independence
Work relations Isolation, a trusted few Team work, solidarity, and trust
Identification with Justice; low shame The prosecution office; high
the legal system threshold shame threshold
(pride and shame)

Furthermore, legal work is evaluated along the lines of pure reason (Ab-
bott, 1981), making it necessary to link inter-professional hierarchy of status
to the court work’s distance to concrete human matters, including fore-
ground emotions. Prosecutors’ transformation and purification of lay peo-
ples’ narratives into judicial codes for the judge to decide on thereby function
as an inter-professional status marker. Prosecutors are closer to the “dirty”
reality than are judges. This implies that the group charisma binding judges
to the high held ideals of objective justice as devoid of emotion, including the
belief that the legitimacy of the justice system relies on this ideal, is stronger
for judges than for prosecutors. Meanwhile, judges can enjoy their higher
status as closer to the ideal of pure reason merely because prosecutors pre-
pare and serve them with a neatly encoded case. Judges’ higher status relies
on prosecutors’ dirty work. The court ritual itself contributes to purification
for the benefit of the judge, through procedural regulation and architecture;
as we have seen, the design of the courtroom sets a physical distance between
judge and the parties accentuated by the elevation of the judge’s bench.
Judges’ conformist autonomy, with its high expectations for procedural
correctness and sound judgement, makes them sensitive to shaming if they
make professional mistakes. Prosecutors’ bounded independence, with its
continuous exposure to criticism, promotes collegial solidarity and high tol-
erance for mistakes, effectively forming a shield against shaming (Wetter-
gren and Bergman Blix, 2016).
Just like field observations of judges give the impression of a high degree
of individualism, self-assurance, and identification with the legal system,
field observations of prosecutors give the impression of solidarity within the
profession, collective emotion management similar to what Olsson (2008)
172 Concluding discussion
labels “emotional harbouring”, and identification with the “office”. This
sense of community and collective emotion management functions as a
shame shield supporting their professional exposure to status challenges.

Background emotions in the legal system – further reflections

The theoretical approach taken by us in this book refutes the idea of pure
rationality as unemotional. The notion of background emotions is a way to
conceptualize that there are situations in which emotion functions to inform
and orient action without being the focus of attention. The focus of attention
we imply here is primarily the subject’s own, because there are certainly sit-
uations where a perfectly rational professional is visibly (to others) fuelled
by emotion. In Chapter 6, we saw how judge Niklas was enthusiastic about
the conclusion of his legal evaluation. He never reflected on this enthusi-
asm because to him it was not disruptive to his rational goal, rather the op-
posite. This suggests that emotions can be backgrounded in experience but
foregrounded in expression as long as it is in line with the feeling rules of
the emotive-cognitive judicial frame (such as being enthusiastic about legal
evaluation). Other emotional expressions may similarly escape the silencing
of emotions: prosecutors’ excitement about the progress of a tricky investiga-
tion; judges’ anger about legal professionals’ bad or inappropriate behaviour
in court; prosecutors’ expression of compassion for victims in court; and
prosecutors’ or defence lawyers’ aggressive cross-examinations. This means
that background emotions need not be characterized by low visibility, as sug-
gested by Barbalet (2011) – they are merely “invisible” to the emoting subject.
The fact that background emotions and rational action are connected does
not mean that foreground emotions necessarily disrupt goal-oriented action.
Consider, for instance, the situation when a judge engages in strategic emotion
management to induce interest and curiosity both in herself and in the lay
judges prior to the hearing of grey trial (see Chapter 4, p. 107). At this point,
emotion becomes foregrounded as an object of attention, but with the purpose
to evoke the emotion needed to perform a desired action. Interest is indeed
quite often an emotion consciously summoned by “emotives” (“this will be
fun”) when one is faced with a boring work task (Reddy, 2001). In this book, we
have also seen that foreground emotion can have low, or close to no, visibility,
particularly in a context like the emotive-cognitive judicial frame. Foreground
emotions are toned down to the extent that it may be very difficult for anyone,
but the legal professionals to see that the judge, for instance, is struggling with
intensely experienced anger. Again, the foreground emotion becomes disrup-
tive because of the feeling rules, and it is the effort to adapt to these rules that
causes the subject’s split focus. This suggests that when emotion is summoned
to perform a desired action it is likely not experienced as disruptive.
That said, background emotions which are conducive to desired actions,
in line with the feeling rules of the emotive-cognitive judicial frame, of-
ten have low visibility and pass below the radar of the self’s experience of
 Concluding discussion 173
emotion. Legal professionals, particularly judges, may indeed believe that
they have “no emotions” when they work. This brings us to the notion of
“irrational” background emotions. Even if they are in line with the feeling
rules and conducive to the action of performing justice, background emo-
tions in legal practice may indeed lead to both good and bad, objective and
biased, decisions. The reason for this is twofold. First, the discussion above
regarding the self and group charisma suggested that the private and the
professional selves cannot be as clearly separated as the emotive-cognitive
frame implies. Instead, the memory bank of wisdom, intuition, and expe-
rience that are brought to us by emotion pertain to both the professional
and private spheres. In other words, the background emotion regarding a
victim’s trustworthiness, or a defendant’s fate were he to be convicted, may
skew judgement. In the vignette to Chapter 6 in this book, judge Tina re-
flects on the possibility that she, like the lay judges, may be affected in her
decisions when she recognizes herself in a defendant or victim. This brings
us to the second reason: Within the emotive-cognitive frame, it is more or
less impossible to reflect on, and to assess, the information brought by back-
ground emotions. As mentioned in the opening of this concluding chapter,
“emotion talk” is automatically marked as unprofessional and this means
that it will be associated with shame-warning triggers for the legal profes-
sionals. There is, as of yet, no way for a legal professional to reflect on the
emotions that inform their decisions without running the risk of excluding
themselves from those seen “fit” to do the job. When judge Tina ventures
to do this anyway, and when all the participants in our project reflected
on their emotions with us, it is because the research project created a safe
space, and provided the theoretical tools, to do so.
Tina’s example is inspiring because apart from actually reflecting on
how background emotion may bias her decisions, she suggests two ways of
dealing with this problem. One is “to go somewhere” and “unload” herself,
implying some organized reflection on background emotions. The other is
reflection initiated by the interaction between her-self and the lay judges.
Instead of exclusively being embarrassed by them as being an out-group of
disturbingly unprofessional legal actors, she uses their manner of deliberat-
ing as an entry to critical self-reflection.
If we are to propose any practical implications for the courts and prose-
cution offices based on our results from this book, it would be along these
lines of critical reflections. At an early stage in our research we decided
to be clear about one thing in relation to our participants: we would not
promise them a five-step list entitled “How to learn to reflect about the
quality of the information brought to you by emotion”. Such a list would
just turn into a standardized policy that would lose its meaning, and pro-
vide an additional source of stress and irritation. What we suggest instead
is that the legal system opens up for critical reflection about the role of
emotions in legal work, both at the structural and at the personal level.
Courses and training providing tools and language to reflect on emotions
174 Concluding discussion
can be useful, but there has to be an organizationally embedded tolerance
of ­emotion talk and ­extended knowledge in the first place. By that we mean,
of course, talk about both foreground and background emotions. The
­social space ­( promoting interpersonal trust) and conceptual tools created
by us when we did our fieldwork serve as good examples. In fact, the project
inspired processes of raised levels of reflection that many of our partici-
pants ­appreciated and found valuable for their work. If this would leave a
mark on the prosecution and court organizations, it would imply freedom
between colleagues to continue these mutual and continuous dialogues and
discussions about emotions.
Appendix
The Swedish judicial procedure

While Scandinavian law adheres to the civil-law tradition with its base in
legal codes, it is nonetheless regarded as distinct from other continental
­European law, in not being directly founded upon Roman law and in using
case law to some degree. In Sweden, the law of today represents a revival
of the country’s unified Civil Code of 1734. The structure of the Code of
1734 remains, but the substantial parts are replaced, such as the Code of
Judicial Procedure (from here on CJP). CJP was revised in 1942 (effectuated
in 1948), turning the originally inquisitorial process with an active court
to an adversarial process in which the judge functions as a passive arbitra-
tor. Nevertheless, the Swedish criminal procedural system has elements of
both inquisitorial and adversarial practices (Eser, 1996: 343; Forsgren, 2014:
219ff.); the pretrial features are in many ways inquisitorial, while the trial
itself is adversarial. As Zila has noted:

Unlike from a typical continental procedure, the Swedish criminal pro-

cess has a distinctive adversial character. The judges are considerably
less active during trial than […] in a number of the European continen-
tal countries. In this respect, Swedish criminal procedure resembles the
criminal procedure known in the common law countries more closely.
(Zila, 2006: 287)

In their position, judges are to restrain from interpretations of their own,

a­ dhering, instead, to the written laws, along with its sources. This is in
­contrast to the more dynamic procedure in common-law contexts, in which
judges ­actively shape the law through case law. This understanding of the
­legal procedure can also be traced in the CJP, as evidenced by its lack of elab-
orate rules of evidence – “what the judge finds relevant can be introduced
as ­evidence” – and lenient rules on examination and cross-­examination
­(Gomard, 1961: 37). Swedish courts can seem rather informal in that nei-
ther lawyers, nor prosecutors, nor judges wear robes or wigs: an ordinary
suit is the costume in court, and prosecutors can appear even more informal
wearing just a jacket and a pair of jeans. At the same time, however, the lan-
guage used in court is normally impersonal and formal, avoiding first-person
176 Appendix
pronouns and rife with legal-bureaucratic terminology (Bladini, 2013). The
Swedish legislation in general is significantly open and transparent (­ Wergens,
2002), with the legal procedure as well as all the documents pertaining to the
procedure open for the public to access (CJP: Ch. 5, Art. 1).
All the legal professions in Sweden require a law degree, which is four and
a half years long. Law school graduates hoping to become judges, prosecu-
tors, or lawyers most commonly apply to serve as legal clerks in the lower
courts (district or administrative courts). The position of a court clerk is a
training position that involves taking clerk courses, preparing cases, taking
notes in court in all matters, and writing draft judgments for the judge. The
clerk does not have a vote in connection with the court’s deliberations, but
depending on the judge and the clerk’s seniority, they may still be able to do
what in Swedish is termed votera, which is to present their interpretation of
the case and suggest a decision during deliberations. Eventually, they also
get to preside in court in minor matters such as those involving traffic of-
fences and shoplifting. The selection for the court clerk’s position is based
on grades from the law school programme, which is one reason why law
school in Sweden is so commonly experienced as highly competitive and
often stressful. An appointment to a court clerk position is considered a sign
of recognition of one’s excellence as a student and an opportunity to gain
valuable work experience. Clerks serve for two years, after which many of
them leave the courts. Following clerk service, the training is divided into
separate tracks for prosecutors and judges.

Prosecution and the prosecutor

After initial tests and interviews, the future prosecutors begin their training
by working as a prosecutor trainee for a period of nine months. For the first
eight weeks, they shadow an experienced prosecutor, followed by four weeks
of shadowing different police units. The trainee programme also includes
one month spent at another prosecutor’s office and one week spent at the
office of the Prosecutor-General. After the trainee period, the candidates
are tried for a permanent position, embarking, if they receive a positive eval-
uation, on a two-year period as an assistant prosecutor. During this period,
they take a total of 15 weeks worth of coursework. Upon its completion, the
candidates become public prosecutors. Positions for specialized prosecutors
can be found at the national centres and international offices, but, at the
general prosecution offices, prosecutors may also specialize in certain types
of crime such as domestic violence or youth offences. Prosecutors have a
relatively secure steady employment. All in all, there are approximately
950 prosecutors working in Sweden. In 2016, 60% of them were women
(Åklagarmyndigheten, 2017).
Prosecutors lead the preliminary investigations of suspected offences. In
less serious cases, the investigation can be conducted by the police with the
case then handed over to the prosecutor who summons those suspected to
 Appendix 177
the trial. Prosecutors are required to remain impartial during the prelimi-
nary investigations: they have to investigate circumstances both incriminat-
ing and exonerating for the defendant (CJP: Ch. 23, Art. 4). The questioning
of suspects and witnesses is performed by the police, often as instructed by
the prosecutor.
During the preliminary investigation stage, the prosecutor also decides on
coercive measures, such as arrest and searching warrants. When a person
has been arrested, the prosecutor has three days to send to the court a re-
quest for the suspect to be detained. The court then decides on the matter in
a detention hearing. For a detention decision, the person must be suspected
with a probable cause along with a statutory penalty of a minimum one-year
imprisonment for the suspected crime. In addition, there needs to be a risk
that the suspect might flee prosecution or punishment, continue his or her
criminal activity (recidivism), or obstruct the investigation (collusion). If the
statutory penalty is a minimum of two years of imprisonment, the suspect
is to be detained unless there is clear and established reason not to (CJP:
Ch. 24, Art. 1–2). The prosecutor can also order restrictions to the detained
person’s contact with the outside world, including their access to newspa-
pers, visits they may receive, or telephone calls they can make. S ­ weden has
recurrently been criticized by the European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or P ­ unishment for the
length of detention in isolation in the country, particularly on the part of
youth suspects (SOU, 2016: 52: 75ff).
At the end of the preliminary investigation, the prosecutor decides
whether to prosecute or close down the case. If there is enough evidence,
prosecution is mandatory in most cases (Wergens, 2002). Closing the case is
an option when the cost of conducting the investigation is likely to be greater
than the significance of the matter, or when the interest of the state is low,
such as in cases like theft within the family (CJP: Ch. 20, Art. 4a). The
crime victims are not to influence the decision, and it is not possible to ‘drop
the charges’. Moreover, plea bargains are not permitted in Sweden1; if the
prosecutor decides to pursue the case, a trial is the only possible outcome
­(Åklagarmyndigheten, 2017).
Compared to other European countries, prosecutors in Sweden possess
considerable judicial power (Zila, 2006: 287). If the prosecutor finds that
there is sufficient evidence, the suspect has admitted to the criminal act,
and the alleged offence carries a conditional sentence or a fine, he or she can
order a summary punishment (such as, e.g., when the case is of a traffic of-
fence, shoplifting, or theft).2 In cases where concurrent sentences are passed
or the offenders are young (15–18 years), the prosecutor can also grant a
waiver of prosecution or initiate mediation (when the defendant is 15–21
years old). In 2016, 22% of the decisions by the prosecution authorities led to
a notification in the criminal records registry without a court being involved
­(Åklagarmyndigheten, 2017). In relatively trivial matters (‘grey trials’), it
is common that the preliminary investigation and the trial are handled by
178 Appendix
different prosecutors, but in more serious or complicated matters the pros-
ecutor can decide to handle the matter all the way from preliminary investi-
gation to the end of the trial and potential appeal process.
Sweden has a relatively low level of incarceration. In 2016, there were 53
persons imprisoned for every 100,000 persons in the national population,
while in the US, which scored the highest in the world, the corresponding
­figure was 666 (World Prison Brief, 2017). Such differences are partly ex-
plained by the facts that Sweden traditionally adheres to norms of restor-
ative rather than retributive justice and the correctional institutions are all
state owned.
In criminal matters, the prosecutor initiates the prosecution by s­ ending
the court a written application for a summon against the person to be
charged. The application has to contain a classification and a description of
the offence. The prosecution cannot be changed, but it can be extended, add-
ing new alleged acts or new circumstances. The prosecutor can also d ­ ecide
to change the legal qualification of the act at the trial, or even withdraw
the prosecution, if new evidence is presented to the court before judgment
has been delivered (CJP: Ch. 20, Art. 9). In court, the prosecutors take the
role of the accusing/state party, although they still need to remain objective.
New or unexpected circumstances coming to light during the trial will have
to be considered regardless of whether they are incriminating or exonerat-
ing for the defendant (CJP: Ch. 45, Art. 3a).
In contrast to common-law practices, the injured party has a strong
­position and is included in the proceedings (Zila, 2006). “The Swedish word
for injured party literally means ‘he (sic!) who owns the case’” (Wergens,
2002: 270). In cases where the victim has died, the family represents the in-
jured party. A hearing involving a victim includes an examination of the
injured party (CJP: Ch. 46, Art. 6). In murder cases, the bereaved family can
thus sit right next to the prosecutor during the entire trial.

The court and the judge

The general courts in Sweden deal with both criminal and civil cases. There
are 48 district courts representing the first instance of the general courts.
In addition, there are six appellate courts. The court of last instance is the
supreme court, which reviews cases from the appellate courts upon their
decision to grant a review permit (CJP: Ch. 54, Art. 10).
All in all, there are approximately 2,300 judges working in Sweden. In
2016, 1,225 of them had a permanent position, 52% of them were women
and 6% were first- or second-generation immigrants. 753 judges served on
district courts (Domstolsverket, 2017). As there are no specialized courts
and no specialization in the general courts in S­ weden, all judges handle all
types of cases, both criminal and civil. ­Presiding in most district court tri-
als are one professional judge and three lay judges. In the appellate courts,
the proportion is reversed, with the courts composed of three professional
 Appendix 179
judges and two lay judges. Lay judges have no formal l­egal education; they
are selected from the political parties, their a­ ppointment is for four years,
and they can be re-elected. The mean age of lay judges in the country is 58
years (Domstolsverket, 2015).
Judge is a career profession in Sweden, with an extensive training required
before appointment. To begin with, one can apply to the judge programme only
after having worked for two years as a court clerk. Admittance requires excel-
lent grades from the law school and excellent credentials from clerk service. The
training starts in a high court (a general or an administrative court of appeal),
where the future judges prepare cases for decision. After a year, the judge candi-
dates move to a lower court where they serve for two years as associate judges.
As associate judges, they are in principle allowed to preside in all matters, al-
though in reality there is a gradual progression in terms of the severity of the
matter they can decide in. Following the two years, the judge candidates spend
another year in the high court, this time as an acting member of the court.
The training also includes ten weeks worth of coursework, spread out over the
programme years. Upon the completion of the training programme, the judge
­candidates are awarded the title of assessor and can, in principle at least, now
apply for permanent positions. ­However, it is common for the graduates to first
serve at the ministry of justice or the Supreme Court for some years and also
take substitute positions as a judge while waiting for an opportunity to apply for
a permanent position. The common practice for assessors to work in the justice
ministry for some time on legislative matters before seeking appointment as
a judge, has been argued to reinforce “a civil service mentality” among them
(Sundberg, 1969: 203). Another alternative is to become appointed as a judge
based on work experience, for instance, as a prosecutor, a lawyer, or a law pro-
fessor. This, however, only became possible in 2007, and thus does not represent
a very common path; still, there were a few examples of it in our study.
During the judges’ training and before their actual appointment, there
are high demands for conformity: trainees are evaluated by the other judges
sitting in the court, while the Chief Judge gathers information from the chief
prosecutor of the associated prosecution office. The mean age of first-time
judge appointees in the country is 44 years; the permanent appointments are
made by the government. In order to protect the judicial independence of
judges, their security of tenure is stronger than any other position in Sweden
(Regeringsformen: Ch. 11, Art. 7).3

Lawyers
Public defence lawyers are ordinarily members of the Swedish Bar
­Association and are assigned to a case by the court. The court has a list of
lawyers available in the region, from which, when the defendant does not
wish to engage any particular individual, it picks one in the order they are
given. Lawyers who decline court assignments without a valid reason are
eventually removed from the list (field notes).
180 Appendix
The defendant has the right to have a defence lawyer if she is detained
or if the crime in question carries a mandatory minimum sentence of six
months imprisonment. Legal representation should also be assigned to de-
fendants should they require it during the preliminary investigation, when
the possible mandatory sentence is ambiguous, or when there are particular
reasons for it owing to the nature of the case or the defendant’s personal
circumstances (CJP: Ch. 21, Art. 3a). In one case in this study, the defendant
was intellectually disabled, for which reason the judge cancelled the trial
in order to appoint a defence lawyer, explaining that the court doubted the
defendant’s ability to make his case. Defence lawyer’s fees are reviewed and
ruled on by the court, with the costs paid by the state when the defendant
lacks the means to do so (CJP: Ch. 31, Art. 1).
The suspect or his or her lawyer can suggest certain particular investiga-
tive measures, but it is always the prosecutor who decides on the measures
to be taken. Upon the completion of the investigation, the suspect (and his
or her lawyer) is informed of its content, and if the decision is made to pros-
ecute the case, the defence lawyer will receive a copy of the investigation
protocol (CJP: Ch. 23, Art. 21).
During the 1980s and 1990s, several legislative changes were implemented
to further protect the rights of the injured party in criminal proceedings. This
meant, among other things, the introduction of an expanded right to ­legal
representation in court, especially in cases involving violence ­(Enarsson,
2013; Wergens, 2002). Unlike defence lawyers, the legal advisor of the victim
does not have to be a member of the Bar Association. In practice, victims
are often represented by freshly minted lawyers looking for work experience
in order to be able to enter the Bar Association. The assignment tends to be
of lower status than working as a defence lawyer.

The trial
The two main principles governing the trial proceedings in Sweden are those
of orality (CJP: Ch. 46, Art. 5) and immediacy (CJP: Ch. 30, Art. 2). They
imply that the evidence should be presented orally; the parties should, in
general, talk freely; and the judgment should be based on the facts presented
during the trial. In the following, the ritual of the trial will be presented.
In the district courts, the professional judge chairs the sessions and is the
only representative of the court to speak during the trial. If the lay judges
have questions, they forward them on a note to the presiding chair. The chair
verifies the presence of all those required in the room and that there are no
impediments for the hearing to take place; witnesses are usually not allowed
in the room before their examination. The chair then asks the prosecutor
to present his or her claims. If the injured party claims compensation for
­damages but is unrepresented, the prosecutor also makes a claim for com-
pensation. After that, the chairperson asks the defendant (or the defence
lawyer) about his or her plea to the charges and to the claim for damages.
 Appendix 181
The prosecutor develops the particulars of the claim, describing the circum-
stances and presenting the written evidence. Written evidence can either be
read aloud or merely referred to (if granted permission by the other party and
the court). When the prosecutor has developed his or her claims, the defence
is given an opportunity to present its version of the matter (CJP: Ch. 46).
The examinations in court begin with the injured party. In some cases, the
examination of victims and witnesses can take place without the defendant’s
presence in the room, in which case the latter will sit in another room and
­follow the proceedings through a video link. In most cases, the prosecutor
first asks the victim to provide a full account of the events before probing into
details. The defence then cross-examines the victim. If the statement given
in court differs from the statement given to the police during preliminary
investigation, the prosecutor and the defence lawyer may obtain the court’s
permission to also read aloud extracts from the police examination record.4
There is a principle according to which crime victims must not be “unduly
subjected to inconveniences in the proceedings” (Wergens, 2002: 259) al-
though judges often find it difficult to interfere in court ­examinations in this
regard (Heuman, 2007: 224). The presiding judge can ask clarifying ­questions
during all examinations, but should refrain from asking questions that result
in the defendant being convicted. After the examination of the victim, the
judge asks the defendant to give his or her description of the events. Should
the defendant not want to make a full statement or has d ­ ifficulty providing
the description, the judge can leave the questioning to the prosecutor. That
it is the judge who first addresses the defendant in this regard is to provide
the latter with an opportunity to give his or her account in full without being
interrupted by questions. Following the examination by the prosecutor, the
defence lawyer can ask complementary questions to the defendant.
Once the examination of the victim and the defendant is over, witnesses
are called in one at a time. If they are not related to the defendant, they
must first take the oath, with the court chair informing them about the con-
sequences of perjury. The one calling the witness – the prosecutor or the
defence lawyer – will begin the questioning (CJP: Ch. 36, Art. 11).
When all examinations have been concluded, the court chair reviews
the defendant’s personal circumstances, including prior criminal history
and any reports from the non-custodial authority (the unit at the coun-
try’s prison and probation authority that handles probation matters). The
chair then asks questions directly from the defendant concerning his or her
­financial status. In some cases, also guardians or other relatives are asked
to describe the defendant’s living conditions at this point. The last part of
the public phase of the trial consists of the closing statements by the prose-
cutor and the defence lawyer, summing up their arguments including their
demand for any sanction.
If the trial is of short duration, the chair and the lay judges often begin
their deliberations immediately afterwards, staying behind in the court-
room behind closed doors. The deliberations are closed to outsiders and the
182 Appendix
discussions remain confidential even after the judgment has been ­delivered.
During the deliberations, the chair is the first to present her arguments,
­referring to the applicable sections of the law (CJP: Ch. 30, Art. 7). Then
each lay judge’s opinion is heard. Sometimes, as part of the court clerk
training, the court clerk is asked to speak first, while still having no vote
in the verdict. The verdict and the sentence are decided through a simple
majority vote by the professional judge and the lay judges. If the vote is not
unanimous, it should be stated in the judgment, and if it is a tie the most
lenient vote determines the verdict (CJP: Ch. 29). The professional judge
delivers the judgment, sometimes orally in direct relation to the trial, but
always in a written form as well, sent to the parties by mail.
Both the prosecutor, the defendant, and the victim can appeal the verdict
to an appellate court, but, in some circumstances (as in minor matters), a
review permit is required (CJP: Ch. 20, Art. 2). From 2008 onward, only
entirely new evidence or complementary examinations have been allowed
in appellate courts. As a rule, the district court examinations are to be pre-
sented to the appeal court by video (The Ministry of Justice, 2015), as a
result of which the procedure in the appellate courts in practice, to a large
extent, consists of watching video recordings from the country’s district
courts.

Notes
1 Zila has argued that
[i]t doesn’t exist any kind of simplified criminal proceedings in court accord-
ing to the Swedish law. Once the prosecution in court has been instituted, the
proceedings follow the rules mentioned above. However, the fact whether the
suspect has confessed to the offence or not, influences presentation of evi-
dence. If the defendant has confessed the offence, the presentation of evidence
will be simplified, but it is a matter of fact, not a question of different rules.
(2006: 292)
2 In most cases, the prosecutors will order a summary punishment when possible,
but the decision to do so remains theirs. When asked about how prosecutors deal
with child pornography cases, one prosecutor stated that one way was to always
force them to actually show up in court (i.e. not to order a summary punishment),
so that the offender will have to bear the shame of a trial.
3 Permanent judges can only be removed from office if they have committed a
“criminal act or through gross or repeated neglect of his or her official duties”
shown themselves to be unfit for their office, or when they have reached r­ etirement
age or lost their working capacity for a protracted time (­ Regeringsformen:
Ch. 11, Art. 7).
4 There are two types of interrogation records produced by the Swedish police:
“dialogue interrogation reports”, which are verbatim transcripts of the police
interrogation carried out, and “summary interrogation reports”, which present
a summary of the interrogation carried out by the police. A common complaint
by defendants, witnesses, and also judges is that the summary reports are not
nearly always accurate.
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Index

Abbott, Andrew 24–5, 47, 114, 119, Bloch, Charlotte 122

122, 171 Booth, Tracey 11
Abrams, Kathryn 11 Bounded independence 115, 127, 138,
aesthetic pleasure: legal encoding 155–7, 159, 164–7, 171
169; in legal evaluation 146–50 Bowen, Deirdre 13
Agar, Michael 21 Brannigan, Augustine 13
Alvesson, Mats 26 Brennan, William J. 11
Arendt, Hannah 24, 118, 121 Burkitt, Ian 140
Ashforth, Blake E. 48, 128
Asplund, Johan 8–9 Clark, Candace 66, 99, 104, 125
assistant prosecutors 15, 90, 134 code of judicial procedure (CJP) 88–9,
associate judges 15–16, 179 110, 175–82
autonomous judges, power issues collective achievement, objectivity work
115–27; negotiating demeanour 120–3; 157–61
personalization/depersonalization collegial emotion management 78–84
118–20; power and status in collegiality 52–5, 97
deliberations 123–7; power Collins, Randall 9, 21–2, 25, 36, 121, 163
discomfort 115–18 comfort with power 38–40
autonomy 10, 29, 31, 40–1, 44, 52, 53, commitment to justice 49–52
55, 65, 66, 68, 73, 79, 84, 114, 115, compassion 76, 162n3
118, 124, 127, 137, 164, 171 court clerks 14–15, 37, 40, 46, 55, 75,
101, 105, 106, 118, 176, 182
background emotions 29, 34–5, 55–6, courts, teflon culture 73–5
172–4; autonomy 40–1; collegiality
52–5; comfort with power 38–40; Dahlberg, Leif 9
commitment to justice 49–52; Damasio, Antonio 7, 19
formative shame or pride moment Darbyshire, Penny 11
37–8; general intellectual dealers 41–2; death penalty 113n2
independence 52–5; mediators 47–9; defence lawyers 5, 14, 16, 32n1
pride in status 38–40; procedural deliberations, power and status 123–7
justice 42–7; purifiers 47–9; democracy 66
translators 47–9 depersonalizing power 118–20
“backstage” interactions 23 detention hearings 15, 177
Bandes, Susan 9–11, 48–9, 76, 151 Diesen, Christian 5
Barbalet, Jack 3, 18, 25, 71, 128, 172 Domstolsverket 178–9
Bergman Blix, Stina 11–13, 18–21, 41, dramaturgical stress 109–11
47, 54, 84, 107, 131, 158, 171 dramaturgy 86–7, 112–13; emotional
Björk, Micael 128 communication 91–3; front-stage
Bladini, Moa 6, 118, 140 collaboration 93–6; front-stage
192 Index
performance 91–3; judges 105–12; empathy, emotion management 11–12
legal terminology 88–91; ethnographic methods 4
non-emotional ritual 87–8; experience 6–7
prosecutors 96–105; script 88–91
Du Gay, Paul 43 fear, organizational emotion
Durkheim, Émile 9 management 64–73
Feldman Barrett, Lisa 17
education, legal professions 14–15 Fisher, Stanley 10
Ekelöf, Per Olof 5 Flower, Lisa 7, 99–100
Elias, Norbert 34–5, 56, 130, 163, 167–8 foreground emotions 1–2, 29
emotion and law 8–14 “forget the passed” 116
emotion and rationality 5–8 formative shame or pride moment 37–8
emotion management 17–21; collective Foucault, Michel 24, 163
achievement 157–61; empathy 11–12; frames 21–3
impartiality 141–50; objectivity work Francis, Andrew 13, 129
140–1, 161–2; partial objectivity 150–7 “front stage” interactions 23
emotion management as self-discipline front-stage collaboration, dramaturgy
73–8 93–6
“emotion talk” 163 front-stage performance, dramaturgy 91–3
emotional communication 113; front-stage strategic empathy 107–9
dramaturgy 91–3
emotional profiles 170–2 general intellectual dealers 41–2
emotional socialization 33n4 Goffman, Erving 7–9, 21–2, 104, 158
emotional toning 100–3, 111–12 Goodrum, Sarah 12
emotions 17–21; autonomy 40–1; Granhag, Pär Anders 5
background 34–5, 55–6, 172–4; guilty verdicts, percentage 162n4
collegial emotion management
78–84; collegiality 52–5; comfort with habituation 17–21
power 38–40; commitment to justice Halkier, Bente 26
49–52; dramaturgy 86–7, 112–13; Harris, Lloyd C. 100
emotional communication 91–3; fear Henderson, Lynn 11
64–73; foreground 1–2; formative Heuman, Lars 181
shame or pride moment 37–8; front- Hochschild, Arlie 12–13, 18–19, 22, 61, 86
stage collaboration 93–6; front-stage Hunter, Rosemary 11
performance 91–3; general intellectual
dealers 41–2; independence 52–5; immediacy, principle of 115, 146; trial
individualized emotion management proceedings 16, 180
78–84; judges 105–12; legal terminology impartiality 141–50
88–91; mediators 47–9; non-emotional independent prosecutors, status
ritual 87–8; organizational emotion negotiations 127–33
management 58–9, 84–5; organizational independence, bounded
security work 64–73; power 12–14; pride individualized emotion management
in status 38–40; procedural justice 42–7; 78–84
professional 1, 2, 6–7, 11–13, 20–32, interrogation records 182n4
34–85; prosecutors 96–105; purifiers interviews 4
47–9; script 88–91; teflon culture 73–8; intuition 6, 29, 173
time as organizing principle 59–63;
translators 47–9 Jacobsson, Katarina 10, 140–1
“emotions as practice” 168 judgement 6–7, 16, 39, 52, 136, 142, 149,
Emotions in Court project 3–4 152, 15, 161, 164, 171
emotive-cognitive judicial frame 7–8, judges 15–16: autonomous, power issues
22–3, 29, 36, 163, 167–9; refuges of 115–27; dramaturgy 105–12;
169–70 permanent 182n3; power challenges
emotive-cognitive orientations 30 133–7; time management 60–1
 Index 193
Kahan, Dan M. 9–10 objectivity, morality 10–11
Kemper, Theodore D. 13, 24–6, 116, 125, objectivity work, emotion management
137, 161 140–1, 161–2; collective achievement
Ketner, Dacher 101 157–61; impartiality 141–50; partial
Kjelby, Gert Johan 151 objectivity 150–7
Kleres, Jochen 64 observations 4
Köping, Sweden court house 14 Olsson, Eva 171–2
Kreiner, Glen E. 48, 128 orality, principle of 115, 146, trial
Kvale, Steinar 26 proceedings 16, 180
ordinary surprises, situated adaptation
Landström, Sara 51 98–100
Lange, Bettina 8 organizational emotion management
law and emotion 8–14 58–9, 84–5; collegial emotion
legal councel 16 management 78–84; fear 64–73;
legal encoding 155–7 individualized emotion management
legal evaluation 5–6; method 146–50, 78–84; organizational security
155, 157, 161 work 64–73; teflon culture
legal system; civil-law 8–10, 13–14, 26, 73–8; time as organizing principle
28–9, 41, 115, 118, 150, 175; common 59–63
law 8–9, 13–14, 16, 26, 29, 175, 178; organizational security work 64–73
adversarial 10, 14, 26–7, 29, 92, 100,
112–13, 150, 166, 175; inquisitorial 14, partial objectivity 150–7
26–7, 29, 146, 151, 175 Passions in Law 9
legal terminology, dramaturgy 88–91 permanent judges 182n3
legitimacy 9, 30, 31, 55, 61, 66, 70, personalizing power 118–20
84, 93, 111, 114, 118, 120–6, 138, Pierce, Jennifer L. 129
144, 160, 164–8, 171; rule of law poker face 92–3, 112–13, 122, 166, 171
30–31, 61, 70, 84, 111, 122, 138, Posner, Richard A. 9
144, 171 power 12–14, 23–6; autonomous judges
life sentences 113n2 115–27; bureaucratic 118–19, 137, 166,
Lively, Kathryn J. 129 171; challenges 133–7; deliberations
low status 120–3 123–7; limitations 120–3; negotiating
Lukes, Steven 24 demeanour 120–3; personalization/
depersonalization 118–20; power and
Mack, Kathy 10–12, 59–61, 98, 132, status in deliberations 123–7; power
141, 150 discomfort 115–18
målsägande 32n2 power discomfort 115–18
Maroney, Terry 8, 12, 27, 123, 163, 170 preliminary investigation(s) 10, 15, 97,
McDonald, Seonaidh 20 127–8, 130–4, 138, 141, 146, 151, 159,
mediators 47–9 161, 176–8, 180–1
Mellqvist, Mikael 6, 11 pride in status 38–40
Moorhead, Richard 11 primary framework 22–3
morality 8–10; objectivity 10–11 procedural justice 42–7
Morton, Adam 19 professional emotional profile(s) 23, 66
Murphy, Jeffrie G. 9–10 prosecution 15; teflon culture 75–8
prosecutors: bounded independence
negotiating demeanour 120–3 115, 127, 138, 159, 165–7,
New Public Management 171; dramaturgy 96–105;
(NPM) 59, 165 independent, status negotiations
non-emotional ritual 87–8 127–33; partial objectivity 150–7;
Nordh, Roberth 6, 19 power challenges 133–7; time
NPM (New Public Management) management 60–1
59, 165 Ptackek, James 12
Nussbaum, Martha 9–11 public defence lawyers 179–80
194 Index
public prosecutors 15 stoneface 19
purifiers 47–9 Strömwall, Leif 5
summary punishments 182n1, 182n2
rationality and emotion 5–8 Sundberg, Jakob 179
Reddy, William 163, 172 Swedish Bar Association 16
Regeringsformen 179 Swedish judicial system 14; defence 16;
Remiche, Adélaïde 118 education 14–15; judges 15–16; legal
research, emotion and law 8–14 professions 14–15; prosecution 15;
restraining orders, appeals 113n1 trials 16–17; victim counsels 16
ritual deference 99, 127, 138
rituals, non-emotional 87–8 tacit signals 87, 103–5
Roach Anleu, Sharyn 10–12, 59–61, teflon culture 73–8, 165
98, 132, 141, 150 Thoits, Peggy A. 17
Roeser, Sabine 65 tilltalad 32n2
Rothstein, Bo 27, 64 Tilly, Charles 36, 47, 89, 110
time as organizing principle 59–63
satisfaction, legal encoding 155–7 time-limited sentences 113n2
Scarduzio, Jennifer 11–12, 93, 134 Törnqvist, Nina 12, 51
Scheer, Monique 19, 140, 168 Tracy, Sarah J. 93
Scheffer, Thomas 36 trainees, prosecution 15
Schuster, Mary L. 11–12 translators 47–9
Scotson, John L. 34–5, 56, 130, 163, trial proceedings 180
167–8 trials 16–17
script, dramaturgy 88–91 trust, high-trust society 27
shadowing 4, 20 trustworthiness 5–6
Sieben, Barbara 2 Tyler, Tom R. 10
Siemsen, Cynthia 35
situated adaptation 87; emotional toning victim counsels 16
100–3; ordinary surprises 98–100
Sköldberg, Kaj 26 Weber, Max 3, 24, 169
social constraints 22 Wergens, Anna 177, 178, 181
social interaction 21 Wettergren, Åsa 2, 11–13, 21,
Solomon, Robert C. 9–10 41, 47, 54, 64, 84, 87–8, 107,
status 23–6; deliberations 123–7; 119, 131, 150, 158, 171
low 120–3 wisdom 6–7, 19, 173
status negotiations, independent
prosecutors 127–33 Zaki, Jamil 19
Stolle, Dietland 27, 64 Zila, Josef 177–8, 182n1