Silence and Voice in Oral Hearings: Spatial,Temporal,and Relational Conditions for Communication in Asylum and Compulsory Care Hearings

Abstract

The legal right to be heard by a judge is an important human right. However, what happens if a claimant does not meet the requirements of legal communication when given the opportunity to be heard in court? In this article, I address this question by exploring how temporal, spatial, and relational conditions encourage or silence vulnerable claimants’ voices in asylum hearings and compulsory psychiatric care hearings in Swedish administrative courts. In addition, I analyze the multiple functions orality has when judges make decisions in these case types. The results provide nuance to claims in previous studies about the importance of enough time, spaces that signal solemnity, and flexibility in judges’ approaches to vulnerable claimants’ voices by demonstrating how these conditions interact with each other and generate different communicative atmospheres. Moreover, this study challenges the idea that oral hearings are necessarily beneficial for claimants as it demonstrates that under certain conditions orality can place claimants at a disadvantage and amplify their defenselessness. However, orality brings legitimacy to court proceedings even in these cases as it communicates justice to the public evaluating these procedures from a distance.

Introduction

Oral hearings are considered to be constitutive of procedural justice in court proceedings. The European Convention on Human Rights, for example, declares that “[i]n the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law” (Article 6, paragraph 1). Similarly, legal philosophers have argued that the right to express one's opinions in front of an impartial decision-maker is a fundamental aspect of procedural justice. Jeremy Waldron, for example, makes the following claim:

Applying a norm to a human individual is not like deciding what to do about a rabid animal or a dilapidated house. It involves paying attention to a point of view and respecting the personality of the entity one is dealing with. As such it embodies a crucial dignitarian idea–respecting the dignity of those to whom the norms are applied as beings capable of explaining themselves. (Waldron 2010: 14, emphasis in original)

Waldron describes an ideal scenario where individuals are treated as rational and communicative, capable of explaining their actions. In democratic systems, this communicative capacity of lay persons in court is even more important as it connects the legal procedure with democratic ideals of public deliberation. For example, Mulcahly and Rowden (2020: 6) argue that “[t]he concept of citizen and the concept of legal person are united in the idea of the deliberative person so valued by democracy”.

However, what happens if a claimant does not meet the requirements of deliberation and rationality when given the opportunity to be heard in court? In this article, I address this question by exploring how temporal, spatial, and relational conditions encourage or silence vulnerable claimants’ voices in asylum hearings and compulsory psychiatric care hearings (hereafter compulsory care hearings) in Swedish administrative courts. I also analyze the multiple functions that claimants’ speech has when judges make decisions in these case types. The study relies on interviews with judges and observations of oral hearings to explore these two questions. I selected asylum and compulsory care cases because, in Sweden, they are adjudicated within the same court system, sometimes even by the same judges. They also share procedural similarities in terms of access to public counsel, interpreters, and oral hearings, and the claimants in both case types are exposed to power asymmetries that make them vulnerable in court proceedings. Despite these similarities, the temporal, spatial, and relational conditions of the oral hearings in these two cases differ significantly. Therefore, it seems appropriate to study how these conditions structure the communicative atmospheres and how claimants’ speech is perceived by judges adjudicating these cases.

By comparing asylum and compulsory care cases, this study opens new avenues for theoretical advancements and generalizations. First, it advances ongoing sociolegal explorations into how sociomateriality and temporality generate particular kinds of communicative atmospheres in courts, which ultimately influence judging. Second, by analyzing judges’ perceptions of claimants’ silence and speech in different court proceedings, this study demonstrates the multiple functions of orality in adjudication and provides nuance to the idea that oral hearings are beneficial to claimants per se. Instead, it finds that, under certain conditions, orality can place claimants at a disadvantage and even amplify their defenselessness.

The argument pursued in this paper proceeds as follows. First, I outline my theoretical approach to court hearings by reviewing previous research on communication in court hearings, in particular, how temporal, spatial, and relational aspects of oral hearings affect claimants’ possibilities to speak and be heard by the judges. Then, I discuss the methods used and the selection of cases, which is followed by a results section divided into two sub-sections. First, I discuss how spatial designs, temporal flows, and demeanors of the judges encourage or silence the claimants’ voices. Second, I analyze the multiple functions orality can have in court proceedings and I identify situations where orality becomes a disadvantage for claimants. Finally, I discuss how these findings contribute to the literature on oral hearings in courts.

Court Hearings as Dialectic Activities in Time and Space

In this paper, to be heard in court is conceptualized as a dialectic activity that involves both speakers and listeners. Moreover, this activity is assumed to be informed by time and space as well as by judges’ demeanors. I draw inspiration from a study of poor tenants who go to court to solve conflicts with their landlords, in which oral hearings are conceptualized as dialectic social rituals: “[T]he societal ritual we call a hearing is dialectic, as is conversation. It involves action and reaction, acts of ‘speech’ and acts of ‘hearing’” (Bezdek 1991: 583). Voice, in this view, requires a listener who can understand the speaker, both literally and socially. In a literal sense, voice means that the speaker's words are loudly and clearly articulated as well as uttered in a language the listener can understand. As a social construct, voice means that the listener understands what the speaker is trying to communicate, which requires a shared social construction of reality between speaker and listener. In the case of oral hearings in courts, a successful legal voice requires a shared understanding about what is legally relevant in the case as well as the use of a judicial vocabulary marked by clarity, credibility, and reliability (Bezdek 1991: 583).

This dialectic view of the opportunity to be heard in court also implies that people can speak without their speech being understood as meaningful to the listener. Bezdek distinguished between claimants’ “empowered speech”, where the claimant's strategy and the court's expectations on relevant voice coincide, and “powerless speech”, where speech is deemed legally irrelevant by the judges (1991: 577). In asylum and compulsory care cases, the transformation of silence or powerless speech into a legally relevant voice requires assistance from interpreters, legal counsel, and medical experts. Notably, all these facilitators lie beyond the control of the claimants, which means that claimants depend on the legal system's resources to turn their speech into legally relevant voices. This situation of dependency creates vulnerability for these claimants in court proceedings.

Although Bezdek's dialectic approach to oral hearings is a productive starting point for the current study, it does not detail the sociomaterial and temporal conditions that encourage or silence the voices of claimants during oral hearings. Therefore, I also draw on more recent sociolegal studies to investigate the influence of temporal, spatial, and relational conditions for claimants’ opportunities to make their voices heard in court hearings.

Spatial Conditions for Communication

Recently, sociolegal scholars have included sociomateriality into the analysis of oral hearings in court (e.g. Hynes et al. 2020; Mulcahy and Rowden 2020; Gill et al. 2019; Rowden 2018; Bens and Vetters 2018; Mulcahy 2007). Rowden explores the symbolic role of courtroom spaces by analyzing the changes that occur when participants use video technology to remotely “attend” court. She concludes that remote hearings lose the “important symbolic function of the courthouse as the home of justice and the presence of law” (2018: 263). One important feature of this symbolism is that courts, due to their spatial design, communicate to participants of trials that they are engaging in a special situation, one not encountered in everyday life:

Judges often make life-changing pronouncements on behalf of society as they exert the authority of the state over the individual. The need to establish a special judicial space–a civic space–through which these pronouncements are made, is therefore important to help legitimate the adjudication. (Rowden 2018: 265)

Similarly, Tait (2003) argues that courtroom rituals, if combined with spatial elements displaying distance and respect, can signal that a judge is independent from the state and committed to treating claimants fairly. What this literature points to is that the spatial design of courts has the capacity to create an communicative atmosphere free from society's usual asymmetrical power relations and therefore can be a space that encourages vulnerable claimants’ voices.

Temporal Conditions for Communication

As oral hearings are extended in time, temporality influences communication. The literature on courts and temporality has centered on the tension between managerial demands of efficiency and legal demands of procedural justice (Soennecken 2013). Hambly and Gill, discussing the consequences of legal quickening as a management strategy in asylum proceedings, explains this to be a tension between “the imperative to be efficient and work rapidly through multiple cases on the one hand, and the imperative to be considered, deliberative, and just on the other (and to be seen to be so)” (2020: 10). The authors found that rushed procedures lead to several negative outcomes for claimants. For example, rushed procedures create a sense of repetitiveness and routine, making judges less attentive to the particularities of each case. Rushed procedures also deemphasize rituals and ceremonies, making hearings appear informal and ordinary, casting judges as less respectful of the claimants. The negative effects of rushed hearings are also evident in research that examines the demonstration of doubt in court hearings as a sign that confers validity on the legal process. However, this research points out that this process of going from doubt to confidence takes time (Bouillier 2015).

Relational Conditions for Communication

Sociolinguistic research on courtroom interactions has found that the declarative language of law makes lay people feel uncomfortable (Conley and O’Barr 1990). Ordinary conversation differs extensively from courtroom conversation. In particular, cross-examination creates anxiety, frustration, and confusion for lay people who are unfamiliar with this adversarial situation. Fielding (2013: 300) concludes that “the prime courtroom discursive forms–the monologue and the interrogation–are unusual and resented in normal interaction”. Courtroom discourse not only creates unease for lay people but also, and more importantly, breaks up the testimony into an interrupted and incoherent narrative, which makes it difficult for the uninitiated to understand.

Nevertheless, ethnographic research on court communication demonstrates that judicial language styles differ depending on contextual factors, for example, case type, legal culture, and judges’ approaches. Mack and Anleu (2010) emphasize that impartiality requires judges to shift between detachment and engagement during oral hearings: “Performing impartiality and enhancing legitimacy can be accomplished most visibly by treating participants with an appropriate demeanor, though this may not be the same demeanor for all individuals or types or categories of participants” (2010: 142). Lens (2007: 321) found that when oral hearings follow protocols and bureaucratic rules too rigidly, claimants are left “feeling that they had not been adequately heard or fairly judged”. However, as the choreographers of justice (Lens et al. 2013), judges have enormous power to steer the communication in oral hearings, and they not only use words and instructions to guide the communication but also display their authority through symbols (e.g. formal clothing and their placement in the courtroom) and through their body language, facial expressions, and tone of voice (Bergman Blix and Wettergren 2018). In a study of silences of claimants with immigrant backgrounds in Swedish district courts, the authors demonstrated how legal rituals, legal language style, and legal stereotypes inhibited claimants’ voices and transformed their voices into legally irrelevant “noise” in the ears of the judges (Elsrud et al. 2017).

To conclude, previous research has found that orality in court proceedings can be a double-edge sword, either encouraging or silencing claimants’ voices. The quality of an oral hearing depends on the judge's demeanors, the spatial design of the courtroom, and the temporal flow of the communication. If judges rely too heavily on judicial language and emphasize their authority over the claimants, if the hearings are rushed, and if the spatial design does not mark distance to the subordinating hierarchy that vulnerable claimants experience in everyday situations, oral hearings risk silencing these claimants’ legal voices. On the other hand, if hearings allow time for deliberation and demonstration of doubt, if the space design breaks with societal hierarchies, and if the judges use flexible approaches and adjust their language and demeanor to the claimants’ familiarity with legal procedures, the oral hearing can encourage vulnerable claimants’ voices.

Research Design and Method

Given the purpose of this study, I wanted to compare oral hearings with vulnerable claimants positioned within the same judicial framework and legal culture. However, to explore the impact of temporal, spatial, and relation conditions for claimants’ voices, I also needed variation in oral hearings. The two case types selected met these qualifications.

Regarding similarities, both asylum and compulsory care cases are processed within the same court system, the Swedish administrative courts. Sweden, as with other Scandinavian countries, has weak constitutional protections of individual rights but has generous and general welfare rights. This paradoxical development can be explained by the fact that “individual freedom is constructed through the State rather than conceived as freedom from the State, as in the British and American liberal traditions” (Barker 2013: 11, emphasis in original). Barker notes one consequence of this exceptionality that is relevant for compulsory care cases and asylum determinations, namely the presence of intrusive, disciplining and oppressive measures targeting parts of the population that has been deemed unwanted, foreign or undeserving (Barker 2013: 6).

However, since Sweden's entry into EU, the legal protection of civil rights has been strengthened. In the case of compulsory care, this includes “the right to an oral hearing, the right to a cost-free legal representative and the demand on the court to hear a specialist in psychiatry as an expert witness” (Radovic, Eriksson, and Dahlin 2020: 604). According to contemporary legislation, a compulsory care case is initiated either by the patient who rejects a suggested treatment or by the chief psychiatrist at the hospital seeking legal approval for compulsory care longer than four weeks. These decisions need to be reassessed by the courts every six months, and they can also be appealed to the Administrative Court of Appeal.

As in compulsory care cases, asylum appeals are under the purview of the Swedish administrative courts and like compulsory care cases, asylum claimants are entitled to free legal representation. Also, they have a strong right to an oral hearing in court and they are guaranteed assistance from a court-appointed interpreter in their native language. Asylum claimants also have the right to appeal administrative courts’ decisions to the Administrative Court of Appeal; however, the chance to receive a full review of the appeal is much more restricted in asylum cases than in compulsory care cases.

Another similarity is the presence of an asymmetrical power relationship between claimants and the public counterpart in the court proceedings. In compulsory care trials in Sweden, the chief psychiatrist wins these proceedings 99% of the time (Zetterberg et al. 2014). The major reason for this is that the court-appointed psychiatrists, who are assigned to provide the court with a second opinion on treatments and diagnosis, and the chief psychiatrists almost always agree on treatment, which makes it difficult for the court to reject the psychiatric diagnosis and suggested treatment (Sjöström et al. 2002; Radovic et al. 2020).

Similarly, research on refugee status determinations in courts demonstrates that there are asymmetries between the asylum claimant and the public counterpart. A study of the Swedish asylum procedure found that the Swedish Migration Agency is assigned a double role in the adversarial setup of the appeal proceeding, acting both as an independent expert on country information and as an adversarial party to the claimant in the court trial: “These double tasks gave them credibility in the court as neutral experts, while at the same time, they could twist the information they provided to applicants’ disadvantage” (Johannesson 2018: 1174). This asymmetrical power relationship continues at the Migration Supreme Court, which creates an institutionalized power imbalance of the whole asylum system to the asylum seekers disadvantage (Joormann 2019). Moreover, previous research has established that decision-makers are skeptical of asylum seekers’ motivations from the outset, a bias that severely impedes the possibility that asylum seekers will be considered credible (Rousseau et al. 2002; Bohmer and Shuman 2007; Jubany 2011; Fassin and Kobelinsky 2012; Gill and Good 2019).

Although asylum and compulsory care cases share many similarities as described above, the temporal, spatial, and relational factors in these cases differ, as I will demonstrate in the results section.

Method and Data

This study is based on a decade-long research project into the inner life of the Swedish administrative courts. I started to study the courts in 2012 as part of my dissertation project and continued the research in a four-year postdoc project. There are four administrative courts in Sweden that handle both asylum and compulsory care cases, but for confidentiality reasons, I will not reveal which courts I have conducted research in nor the name, background, or gender of individual interviewees. When referring to quotations from interviews, I provide a pseudonym.

The empirical data of this study includes 27 interviews with administrative judges. The interviewee group was largely representative for judges at the administrative courts in Sweden: all were middle aged, approximately two-thirds were male, and all had several years of experience with asylum cases and compulsory care cases. As a complement to the interviews, I observed seven asylum hearings in 2013–2014 and four compulsory care hearings in 2020–2021. Asylum hearings are often conducted behind closed doors, and compulsory care hearings are always closed to the public, which makes these hearings hard to access for researchers. As the presiding judge decides who can be present during closed hearings, my attendance during these hearings depended on the willingness of a judge to let me sit at the gallery bench. My strategy for gaining access was to first establish rapport with judges through interviews and then ask if I could observe oral hearings. For research ethical reasons, I also needed to receive consent from the claimants before the hearings started; a few claimants declined this request, which further decreased the number of observations in the sample.

Apart from interviews with judges and observations of hearings, I conducted “backstage” observations in the office corridors, lunchrooms, and judges’ offices at several courthouses as well as participated in educational seminars for administrative judges, law students, and lay judges. ¹ Moreover, the analysis is informed by both formal interviews and informal conversations with other professionals participating in asylum and compulsory care hearings, such as public counsel, law clerks, litigators, and various judicial and medical experts.

Using people's talk to understand their practices may seem unintuitive from a methodological perspective; however, there are good reasons to include people's perceptions and reflections on their doings to comprehend their intentions and meaning-making intertwined in practices (Hitchings 2012). I used the interviews to investigate how the judges perceived claimants’ speech and silences and what they did to create the desired communicative atmosphere during the hearings. Their perceptions of the conditions of the hearing also gave me valuable insights into how time and space are made meaningful in court hearings.

To study the temporality of the hearings, I paid less attention to the individuals performing the actions than the actions per se, including repetitions, patterns, and effects. This type of analysis emphasizes the temporal flow of practices as well as the interactional order between participants as these conditions reveal “specific patterns of sociality and empowerment” (Nicolini 2009: 125).

To analytically capture the spatial conditions, I assumed a hermeneutic relationship between the spatial design and the meaning-making of the users of the built space, reading them as “texts” being interpreted by different audiences (Yanow 2006). This strategy includes paying attention to material objects, architecture, furniture, and décor to grasp what these spatial signs mean for the people who interact with them. This has been done by talking to people in interviews or during observations as well as by using my own sense-making and bodily experiences in relation to the built space of the courts. This analytical strategy needs to be carried out with awareness of people's multiple interpretations of social reality, including the material aspects of their social reality. Therefore, “interpretations are always provisional” and need to be “subject to corroboration, or refutation, by members of the situation under study” (Yanow 2006: 372). The multifaceted character of my empirical data has allowed me to check my interpretations against various forms of material. For example, interviews with judges from one courthouse in 2013 has been compared with interviews from another courthouse in 2020 as well as against observations of oral hearings from a third courthouse in 2021. What I report in the results section are the most recurring interpretations from interviews, which also can be supported by my own observations from the oral hearings I witnessed.

Different Communicative Atmospheres in Asylum and Compulsory Care Hearings

In the following sections, I present the results of the analysis of how spatial designs, temporal flows, and the judges’ demeanors influence claimants’ speech during oral hearings. The two case types–asylum and compulsory care hearings–are continuously compared throughout the analysis to flesh out the differences and similarities between them. In summarizing the results, I conclude that in asylum hearings, the combination of spatial, temporal, and relational conditions generated a communicative atmosphere that encouraged claimants’ legal voices. In compulsory care hearings, the spatial, temporal, and relational conditions were tuned towards a relaxed and non-authoritative atmosphere, which encouraged claimants’ powerless speech but did not help transform claimants’ speech into legally relevant voices. In the following, I detail the empirical evidence for these conclusions.

Spatial Conditions in Hospitals and Courtrooms

These two cases have very different spatial conditions. Compulsory care hearings are held at a psychiatric facility, and asylum hearings are held at regular courtrooms at the administrative courthouses. In addition, compulsory care hearings are often conducted remotely, but asylum hearings are not.

In asylum hearings, the placement of the adversaries and the court staff reflects the triadic dynamic of adversarial procedures. The court staff sit together at a table in the back of the room, and the judge sits in the middle between the law clerk and the three lay judges. The two adversary parties sit opposite each other with the court staff at their side, equal distance from the adversaries. The participants of a hearing include, apart from the court staff described above, a public counsel, a litigator from the Swedish Migration Agency, the asylum claimant, and an interpreter. Sometimes, witnesses or independent experts are brought in to support a party's claims.

Following Rowden's (2018) claim that courtrooms can create a symbolic civic space and a sense of solemnity, it is possible to analyze the spatial design of asylum hearings as departing from the ordinary power hierarchies asylum seekers are subjected to and therefore encourages their legal voices. That is, the spatial design of these hearings emphasizes the dispute between the parties of the trial: the litigator from the Swedish Migration Agency and the asylum seeker. Moreover, these two parties are positioned at the same table but at equal distance from the judge, spatially signaling that they have equal standing with the court.

Irrespective of whether the compulsory care hearing takes place at the hospital or remotely, the triadic form is absent and the arrangement of parties instead reflects a separation between legal experts and medical experts. In cases where the hearing takes place in a conference room at the hospital, the judge has a central place at the short side or in the middle of the long side of the table. At the judge's side are the three lay judges and a law clerk. The claimant usually sits with the public counsel on the other side of the table, opposite the judge. The chief psychiatrist and the court-appointed psychiatrist sit together, either on the same side as the claimant, but at some distance, or on the other side of the table. Apart from my own observations, this placement of participants is confirmed by previous observational studies (Sjöström et al. 2002: 94–95). In remote compulsory care hearings, the court staff (judge, lay judges, and law clerk) sit in a conference room in the courthouse, while the claimant and the chief psychiatrist (and usually other staff from the hospital such as contact persons or medical trainees) sit in a seminar room at the hospital. The public counsel and court-appointed psychiatrist can choose to be with the claimant at the hospital or be in the courtroom with the court staff.

This placement downplays the dispute between the claimant and the chief psychiatrist. Instead, spatial distance is created between the hospital members (both psychiatrists and patients) and the court staff, an arrangement that amplifies the distinction between the medical and legal professions but leaves the claimants’ voice (of resisting the chief-psychiatrist's treatment) spatially unnoticed. Moreover, the psychiatric claimant is placed closer to the medical experts than to the legal experts, which creates an impression of the claimant being on the same side, or even under the control of, the medical experts. In remote hearings, the spatial distance is even more salient as the court staff and the hospital staff, who sit together with the claimant, are in different locations while interacting through video screens. This arrangement risks silencing the claimants’ voices as the power hierarchies that they experience daily as patients in relation to medical experts persist in the spatial design of the hearing.

Temporal Flows in Asylum and Compulsory Care Hearings

Oral hearings in compulsory care cases are very short; they generally last between 20 and 30 minutes. During these minutes, the judges need to go through all the usual procedural parts of an oral hearing, including preparing the lay judges for the case, opening the hearing, presenting the participants, asking for the parties’ opinions, allowing the court-appointed psychiatrist to submit an opinion, posing questions to both the claimant and the chief psychiatrist, closing the hearing, deliberating with the lay judges, and (in most cases) stating the ruling.

As the “masters of ceremonies”, judges have “enormous control to pace the process” and should ideally “keep them moving but not appear rushed” (Tait 2003: 92). During the hearings I observed, the judges kept tight control of the rhythm of the hearing. However, in compulsory care hearings, this time control was measured in minutes. For example, during one of the observations, the judges instructed the lay judges to take a “three-minute break” before the next hearing (fieldnote 02-11-2021). Many judges found it stressful to fit all the procedural steps into the allotted time for compulsory care hearings. Judge Cecilia described the time pressure during the days she was assigned compulsory care cases as follows: “The negotiations [in compulsory cases] are about 20 min and then you have to have time between each; you have to have three negotiations in one hour so then the negotiation is barely 20 minutes, deliberation, negotiation, deliberation, and so on”.

This tight schedule restricts what is possible to do and say, placing pressure on all participants to be as efficient as possible. Judge Anna described how the time constraints forced her to repeatedly interrupt the other participants as soon as they began to extend their answers. The professional actors adjusted to this rushed hearing style; in particular, the public counsel were very brief in their report of the claimants’ opinions and claims. When the judges asked them to make a final pleading, they replied that everything of importance already had been said in the hearing or they briefly restated that the claimant resisted the treatment offered by the chief psychiatrist. This lack of engagement was presumably not only caused by time pressure inside the hearing room but also by the preparation of compulsory care cases. As each public counsel is assigned many compulsory care cases during the same day, they usually only meet the claimants a few minutes before the hearing begins. Overall, my conclusion is that the allocated time allowed the claimants’ speech to be heard in compulsory care hearings, although it was not enough time to help the claimants transform this powerless speech into a legally relevant voice.

The same time constraints were not visible in asylum hearings. Asylum hearings usually last between two and three hours. Both the interviews and observations indicated that the interpreters and public counsel had enough time to transform the asylum claimants’ speech into legally relevant voices. For example, the public counsel had time to meet with the asylum claimants before the hearing to prepare them for the procedure, and they were given time to ask questions to clarify the asylum narrative during the hearings. However, as will be illustrated in the next section, judges sometimes used communicative approaches in asylum hearings, which risked silencing the claimants’ legal voices completely in a manner not visible in compulsory care hearings.

Judges’ Approaches to Psychiatric and Asylum Claimants

The judges perceived their authoritative role in relation to asylum and compulsory care claimants very differently. This difference, in part, can be explained by the ways in which the burden of proof is structured in compulsory care and asylum proceedings. As compulsory care cases are classified as burdensome cases according to Swedish administrative law doctrines, it is the chief psychiatrist, as a state representative, who has the burden of proof. To be considered for compulsory psychiatric treatment in Sweden, the chief psychiatrist needs to show that the patient (1) suffers from a severe mental disorder, (2) has an indispensable need for psychiatric in-patient care, and (3) refuses psychiatric in-patient care. Asylum claims, on the other hand, are classified as benefit cases, and therefore, it is the asylum claimants who have the initial burden of proof, not the state representative from the Swedish Migration Agency. That is, the asylum claimant is responsible for presenting new evidence for why the Swedish Migration Agency's decision should be altered at the court level.

However, this difference in burden of proof cannot alone explain why judges perceived their authority in the compulsory care hearings to be more problematic than in asylum hearings. It is arguably also a result of an institutionalized culture of disbelief that previous studies have found to be widespread in asylum determination procedures but not to the same extent present in compulsory care proceedings. The results from this study indicates that in compulsory care cases, judges expressed “power discomfort”, a phrase coined by Bergman Blix and Wettergren (2018: 115), to convey judges’ hesitation towards demonstrating power. Judge Cecilia described how clothing was part of the visible signs of power asymmetries during hearings and regrettably imagined that the claimants saw judges as “ladies and gentlemen dressed up in suits or tie blouses [who come] and look at us”. Judge Petra also found that appearances reflect the hierarchy between judges and psychiatric claimants: “[I] come with clean clothes […] and look well-groomed and then I may meet a patient who may have woken up a quarter of an hour ago and has not showered in a week and comes in hospital clothes”.

Because of this “power discomfort”, the judges actively tried to create a relaxed and informal communicative atmosphere by moving closer to the patient during the compulsory care hearings. Judge Petra described this strategy of physical narrowing in the following way:

We are sitting around a table that may be like this [shows the table at which the interview takes place, about a square meter wide] or maybe even a little closer. If I just lean forward a little more, I think I’m coming closer to the person instead of sitting back like this [shows with body language by leaning back in the chair], which I might be able to do when I’m in a major tax hearing, where there is already a distance.

In this way, judges used the closeness created by the spatial design of the hearing rooms at the hospital facilities to soften the power asymmetry between them and the psychiatric claimants. This strategy, of course, is not possible in remote hearings. Consequently, several judges regretted that remote hearings meant a loss of “human contact” (Judge Sara) and the opportunity to use body language and tone of voice to establish a rapport with claimants (Judge Roland).

Furthermore, judges were aware that legalistic jargon could disturb or confuse lay persons, so they tried to use plain and simple language in conversations with psychiatric claimants. They asked questions about things that the judge knew would interest the claimant to establish rapport even if these things were inconsequential for the legal assessment. That is, the judges encouraged the psychiatric claimants’ powerless speech although without strengthening their legal voices. It is even possible to assume that the creation of a relaxed atmosphere comes at a cost: claimants may be encouraged to spend time on powerless speech in the absence of being able to speak with a legally relevant voice.

The judges did not express the same “power discomfort” when discussing power asymmetries between them and the asylum claimants. Rather than encouraging powerless speech as they did in compulsory care hearings, the judges were highly concerned about steering the conversation during the asylum hearings away from irrelevant topics and towards questions that were legally important for the case. In all observations and in many of the interviews, the judges emphasized that the oral hearing was intended to complement the written investigation, and their role as a judge was to “hold the hearing together” and “get to the point” (Judge Marianne). The desire to keep the hearing moving without irrelevant detours into the claimants’ life stories came through in the judges’ instructions to the claimants at the beginning of the hearings. One judge made his expectations of keeping the verbal communication to a minimum very clear when he opened the hearing by making the following statement:

The hearing is only a supplement to the written exchange in the case. This means that only the most necessary [information] is to be addressed in the hearing. The claimant should only answer the questions, nothing else. If it is possible to answer ‘yes’ or ‘no’ to the question, you should just do that. So now I ask you [turns to the claimant], have you understood what I just said? (fieldnote 12-02-2013)

The claimant responded to the judge's question with a short “yes”, which made the judge nod, and mumble with a slight tone of satisfaction, “well, it seems so”. During the rest of the hearing, this asylum claimant was very passive and only answered briefly to direct questions.

At the end of each asylum hearing, a event reoccurred that adhered to the idea of the legal right to be heard. As a gesture of tolerance and respect, the judges asked the claimants if they wanted to add something “in their own words”. In most cases, the claimants took this opportunity to plead directly to the court to approve their asylum. However, this unrestricted and powerless speech from the claimants created anxiety in the judges, who, without exception, only allowed for a few seconds of this kind of unrestricted talk before they interrupted and declared the end of the hearings by announcing the time and date when the ruling would be made public.

I analyze this concern about keeping the conversation to what is legally important as a way for the judges to help the asylum claimants turn their powerless speech into a legally relevant voice. However, their instructions to accomplish this might silence the asylum seekers, as the example above indicates. Previous research demonstrates that judges’ interruptions can lead to claimants feeling disrespected and disciplined. For example, Bezdek found the judges’ instructions of legal relevance was destructive for claimants as it “signals official priorities about the rights to be protected and the language to speak. Nothing in it encourages belief in a system of legal rights, nor an expectation that legal rights parallel one's intuitive sense of rightness, nor a perception of oneself as a rights-bearing person” (1991: 589).

Multiple Functions of Orality in Adjudication

In this section, I discuss how the judges make sense of claimants’ speech and silence when making judgements in asylum and compulsary care cases. First, I present the ceremonial function orality has in compulsory care hearings, and then I present the investigatory function of orality in asylum hearings. I also convey a third function of oral hearings: oral hearings serve as “stages” where claimants are put on display before the court. The findings demonstrate that orality can place claimants at a disadvantage and amplify their already vulnerable positions in the legal proceedings.

Orality as Ceremony in Compulsory Care Hearings

In the former sections, I concluded that the spatial, temporal, and relational conditions in compulsory care hearings generate a communicative atmosphere that encourages claimants’ powerless speech but discourages their legal voices. With this conclusion as a backdrop, I will now turn to the judges’ perceptions of the purpose of orality in these hearings.

Many judges expressed that the overall purpose of the oral hearing in compulsory care cases was to grant individuals the right to be heard in court. Judge Bosse, for example, stated that “it is about legal certainty. It is such an incredibly intrusive measure for the individual, so the individual must in any case have the opportunity to speak”. While emphasizing this formal right, the judges were also aware of the practical challenges of getting people with mental illness to come to the hearings and make their voices heard. Judge Bosse noted this tension between the formal right and its practical reality: “Quite often they [psychiatric claimants] do not come [to the hearing] because they may have experienced it before and they do not think it gives them anything”. Moreover, if the claimants are present in the hearing room, Judge Bosse continued, they are so heavily medicated it is difficult to communicate with them: “[Many claimants] really look ill, I mean, they are blunt in their facial expressions, they are heavily medicated, they slur when they talk and their tongue may be swollen”. This discrepancy between the formal right and the practical reality makes oral hearings in compulsory care cases appear to be foremost ceremonial–i.e., to show that justice has been done and by that maintaining the legitimacy of the judicial procedure in the eyes of bystanders, such as the public or policy-makers.

However, during the observations and interactions with judges, I discovered an additional function of the oral hearing in compulsory care cases: they function as a “stage” to display the claimants’ irrationality in front of the judges. This strategy has been observed in previous research and is called “revealing repertoires” (Sjöström et al. 2002, 102). Radovic et al. (2020) found that court-appointed psychiatrist used such repertoires by asking questions that aimed to display to the judges the claimants’ lack of insight into their mental illness. From the claimants’ perspective, this creates a communicative dilemma because it means that “to argue in court that you are not ill is considered to be a strong indication that you are” (Radovic et al. 2020: 612–613).

As stated above, in most compulsory care cases, the claimants’ physical appearance made it obvious to the judges that the claimants were very ill. In those hearings, the mere appearance of the claimant in the hearing room functioned as a confirmation of the persons’ need for compulsory care. However, not all psychiatric claimants gave an immediate impression of being ill; some claimants appeared to be in good mental health and were able to engage in conversations. In these situations, the court-appointed psychiatrist could use a “revealing repertoire” to trigger claimants to display their illness by asking certain questions.

I observed this strategy in one hearing when the claimant challenged the psychiatric diagnoses given by the chief psychiatrist The court-appointed psychiatrist, who agreed with the chief psychiatrist, responded to this challenge by changing topic and began to pose questions to the claimant about her pet, who had recently died, presumably to elicit emotional reactions in the claimant that would confirm to the court that she was ill (fieldnote 02-11-2021). In interviews, this strategy was also mentioned by the judges:

Many people who are mentally ill can seem completely normal, until you press the right button. And I have been through that many times when I think, ‘but what's wrong with this person, it's nothing strange’. But then the court-appointed [psychiatrist] knows which button to press, a few [questions] are enough, ‘aha, okay, now I get it’. (Judge Ines)

Through this understanding of orality as an opportunity to see the claimants’ irrationality being displayed before the judges’ own eyes, claimants’ powerless speech became transformed into legally significant evidence. However, it was the display of irrationality in the claimants’ speech that became legally relevant as a confirmation of their need for compulsory care, which is the opposite of the ideal purpose of orality in court–namely, to give individuals the opportunity to display rationality by explaining themselves in front of an impartial judge. Consequently, the hearing became a “stage” where the claimants were presented to the court in a fashion that disqualified their claims as being rational and confirmed to the court their need of compulsory care. This display of irrationality was intentional from the court-appointed psychiatrists and beyond the control of the claimants. In this sense, it amplified their already vulnerable position in the court proceeding as they could not defend themselves from these strategic questions.

Orality as Investigative Tool in Asylum Hearings

My conclusion from the analysis of the temporal, spatial, and relational conditions of asylum hearings was that these conditions generated a communicative atmosphere that encouraged the claimants’ legal voices. This atmosphere of encouraging the legal voices of claimants was combined with the judges’ perceptions of orality as an investigative tool for assessing the credibility of the claimants. That is, it lacked many of the ceremonial functions of orality that were visible in compulsory care hearings. In asylum hearings, orality had foremost an instrumental value of separating “real” refugees from so called “economic migrants”.

Because of the doctrinal emphasis on placing the burden of proof on the asylum claimant, several judges expressed that in asylum hearings the opportunity to speak was not a right but an obligation. Judge Yngve explained how this obligation to speak worked in practice:

Sometimes when the litigator [representative of the Swedish Migration Agency] asks questions, it's like this, they [the claimants] say, ‘I have already answered’ or ‘why should I answer it’ or something like that and then you must tell them ‘yes, you have to answer and if you cannot respond you may well say that then but if you say that you do not want to answer this question, and the answer is of significant importance, of course, then you are withholding something that might have been of relevance for our assessment’.

As a result of this obligation, claimants’ silence or reluctance to speak was interpreted with suspicion by the judges. Silence was not understood as a right–as it is in criminal law proceedings–but as an indication of the claimant withholding information and attempting to deceive the court. In addition to being obliged to speak, they are required to provide details about all relevant factors:

Here you have to tell everything, thoroughly, and in detail, and not suppress things because you do not dare or you do not think you are able to tell. No, you have to do it; it is you who has requested a hearing and then you simply have to utilize it. (Judge Åsa)

This requirement to “tell everything” is established to assess credibility. By noting differences in single words and comparing details in prior interviews, the judges were searching for evidence of fabrications at the linguistic level. However, in asylum hearings, “telling everything” is a dimension of the communication that the claimants have limited control over since everything that is uttered by the claimants needs to be translated into Swedish by an interpreter. Previous research has demonstrated how this process of translation may alter and change the meaning of a narrative and how this is used by decision-makers to reject asylum claims (Gibb and Good 2014; Dahlvik 2019; Nikolaidou, Rehnberg, and Wadensjö 2022). During one oral hearing I observed, the interpreter translated what the claimant said into “we heard gun shots”, but in the protocol from the first asylum interview at the Swedish Migration Agency (with another interpreter), the transcription stated that he had said “I heard gun shots”. Despite the claimant's insistence that the discrepancy might have been caused by the interpreter's misunderstanding during the first interview, the judge used this as a sign of fabrication of asylum claims and rejected the asylum appeal (fieldnotes 11-20-2013). The use of oral hearings to assess credibility meant that the asylum claimants found themselves in a paradoxical situation: they depended on professional actors within the judicial system to make their voices heard but became solely responsible for the consequences when these actors failed to meet the criteria of credibility, such as consistency of details.

In one aspect, oral hearings in asylum cases and compulsory care cases had a similar function: they both functioned as a “stage” where claimants could be displayed before the judges. In asylum hearings, it turned out that judges used the hearings not only to scrutinize the interpreters’ words but also to scrutinize claimants’ non-verbal activities during the hearings.

The centrality of the physical encounter for credibility assessments has been acknowledged in previous research (Kobelinsky 2015) and was articulated by many judges, but Ulrika formulated it most clearly: “It is somehow different when you have the person in front of you physically [as face-to-face interaction gives you] a sense of whether it [the claimant's story] seems to be true or not”. Judge Cecilia also emphasized the importance of being able to see the gestures and demeanor of asylum claimants to properly assess the credibility of their narrative. The physical encounter during the oral hearing helped her “assess a person as more or less credible, in what that person says, and does, and gestures and demeanors”.

The quotations above illustrate how words and actions are tied together in the judges’ assessment of credibility. However, the need to translate everything that is said during the hearings means that the oral communication and the non-verbal activities, such as gestures and facial expressions, are detached from each other. When the judges stated that they listen to the claimants, they meant that they listened to the interpreters’ voices while watching how the claimant behaved. In one hearing, this separation between words and gestures became particularly clear when the public counsel asked the claimant to speak louder so that everyone could hear and the judge commented that “the main thing is that the interpreter is heard” (fieldnote 11-20-2013). Consequently, it is the interpreter's choice of words and emphasis that the judges listen to while scrutinizing the demeanors of the asylum claimants.

I argue that this obligation to speak despite the asylum claimants’ lack of control over interpretations together with the centrality of non-verbal activities during the hearings amplified asylum claimants’ vulnerability and defenselessness in court hearings. Misunderstandings and inconsistencies in the asylum narrative were perceived by the judges as indications of the asylum claimants’ lack of credibility rather than as a failure of the court process. This made oral communication hazardous for asylum claimants; however, they could not choose to be silent or employ a reticent approach as that would be perceived as an attempt to keep information from the court.

Discussion

This study investigated how spatial, temporal, and relational conditions of the legal process structure claimants’ voices when they do not meet the legal demands of rationality and deliberation. In addition, it offered an analysis of how judges make sense of claimants’ speech when making decisions in these case types. In this concluding section of the paper, I draw on the findings from this study to elaborate on the two main contributions this study makes to the literature on communication in court hearings.

In addition to providing some nuance to previous research on the temporal, spatial, and relational conditions for claimants’ voices in court, the major contribution of this study lies in its demonstration of how these conditions are intertwined in creating communicative atmospheres that either encourage or silence claimants’ legal voices. The empirical analysis found that asylum hearings and compulsory care hearings generated different communicative atmospheres even though the formal regulations regarding oral hearings in these two case types are very similar.

This conclusion speaks to other ethnographic studies of courts (Scheffer 2004; Bens and Vetters 2018; Hynes et al. 2020; Verheul 2020; Oorschot 2021), which have demonstrated how court proceedings are structured by the judges’ demeanors and perceptions as well as the spatial and temporal conditions. However, the role of materiality and temporality in court procedures has only begun to be explored and more research in this field is required. To this endeavor, I want to bring forth the value of comparative research. By combining spatial, temporal, and relational aspects of oral hearings in two different case types, this study offers a richer picture of the conditions under which communication takes place in court proceedings than studies that only focus on one aspect and one case type. It was only by comparing asylum and compulsory care hearings that I could understand how temporal, spatial, and relational conditions can be combined to generate different communicative atmospheres. Future studies could use this comparative approach to scrutinize the propositions outlined above and to explore how materiality and temporality structure court hearings with other types of vulnerable claimants.

A future research agenda could also set out to explain why the spatial, temporal, and relational conditions are arranged in a particular way in different court proceedings. Whereas the relational conditions probably can be explained by how political discourses construct entitlements, rights, and control over vulnerable populations, I think that answers to why courtrooms' space and time are structured in particular ways can be found in historical analysis of the political trajectories that have shaped the procedural setups of different court proceedings. How much time a particular court hearing is allocated, and in what kind of spatial design it is located are probably the results of how resources have been allocated within the court system, which ultimately is a political decision. Here, I think future studies could benefit from previous sociolegal work on political steering of migration and asylum procedures through managerialism (Soennecken 2013) and legal quickening (Hambly and Gill 2020; Cwerner 2004) as well as how states use temporal technologies to block and delay migrants’ access to rights (Masoumi 2022). To this end, my findings on temporal rush in compulsory care hearings seems relevant as an example of how politics implicitly steer judicial proceedings through different managerial and temporal technologies.

The second contribution of this study is that it combines the analysis of conditions for different communicative atmospheres with the question of how claimants’ voices and silences were perceived by judges in decision-making. This is an uncommon way to approach claimants’ voices in court as most studies focus on the procedural justice aspects –i.e., to what extent claimants feel listened to and treated with respect and how that influences their acceptability of the court decisions. However, in this paper, I explored how claimants’ voices and silences were understood by judges when making decisions.

The empirical analysis demonstrated that, in practice, the idea of orality being a procedural justice principle had to compete with other, sometimes opposing, ideas about the purpose of orality. In the case of compulsory care hearings, I found that orality foremost had a ceremonial function: to demonstrate that justice is being done to bystanders of the procedure. This conclusion is further strengthened by the analysis of the poor conditions for claimants’ legal voices in these hearings. Neither the temporal nor the spatial conditions in these hearings facilitated claimants’ legal voices, although their powerless speech was encouraged by the judges’ communicative approaches.

In asylum hearings, the opposite conclusion could be made. In these hearings, claimants’ speech influenced the outcome of the cases as it was imperative for the credibility assessments and for the separation of “real” refugees and so called “economic migrants”. The temporal and spatial conditions enabled claimants to translate their powerless speech into legally relevant voices. However, the judges did not understand this legal voice as an outcome of a joint endeavor of multiple actors. Instead, judges understood the many communicative obstacles that originated from the bilingual communications as the sole responsibility of the claimants. Therefore, claimants can be held responsible for inconsistencies and gaps in their narratives without judges considering that they themselves have been an active part in constructing this legal voice.

Moreover, I found that under certain conditions orality risked amplifying defenselessness of asylum and psychiatric claimants. This happened when the oral hearing became a “stage” where the claimants were displayed before the court. In compulsory care hearings, this took place in situations when the psychiatrists manipulated the claimants to speak in a way that confirmed that they met the judicial criteria of compulsory care. In asylum hearings, the oral hearings risked turning into “stages” when the interpreters’ translations of the claimants’ words were compared with the claimants’ facial expressions and gestures in the judges’ search of clues to deceptive behaviors. In both these occasions, the judges did not listen to the claimants’ speech to understand what they wanted to say, but they perceived their speech as performative activities that confirmed to the court what the public authorities accused the claimants of. In other words, oral hearings not only function as linguistic events but also as performative events where tacit messages to judges are displayed about how to make decisions in individual cases.

Based on these empirical observations from asylum and compulsory care hearings, this study challenges the idea that oral hearings are beneficial to claimants per se. Instead, it demonstrates that under certain conditions orality can place claimants at a disadvantage and amplify their defenselessness. In these situations, orality brings legitimacy to court procedures as it communicates to bystanders, who might be evaluating these procedures from a distance, that even vulnerable claimants have a chance to explain themselves in front of an impartial judge. To what extent these court proceedings are arranged in such a way that they offer the necessary conditions for vulnerable claimants to transform their speech into legally relevant voices is not important for this communication of legitimacy. Therefore, a vital task for sociolegal scholars is to continue to study the empirical conditions for orality in court as well as the judges’ perceptions of claimants’ speech and silence.