Abstract
Research access in ethnographic studies “involves gaining permission to conduct research in a particular social setting” (Shaffir and Stebbins in B.W. Shaffir and R.A. Stebbins (eds.) Experience fieldwork. An inside view of qualitative research, Sage, London, 1991, 25). Following laws about public transparency, courts are normally open to the public. This is however not the case for all courts or all types of trials. In many jurisdictions, judges may use discretion to exclude spectators from court hearings, including researchers. As this chapter will show, this and other aspects may turn access into a complicated phase in courthouse ethnography. If access to the field is denied, it will delay the data collection, it may require adaptation of the research design, and in the worst case it may jeopardise the realisation of an entire study. In this chapter, we describe and reflect upon how we negotiated and gained access to Swedish rape hearings. Three different access strategies are described and the importance of judges as gatekeepers is illustrated with quotes taken from our fieldnotes. We conclude the chapter by summarising our lessons learned and practical guidance and top tips for ethnographic researchers.
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Notes
- 1.
The term negotiating implies that a “no” must not be accepted as a “no”, but must instead be met with persuasion or bargaining. We want to comment on this from a research ethics point of view. As participation in research studies must be voluntary, this might be a sensitive issue. First, we do not push legal actors to participate if they are clearly negative about our research project, but rather, we are open and careful in our approaches to potential participants. Second, since our participants are legal actors, they belong to the elite, and are thus not in a vulnerable position.
- 2.
- 3.
In the project Rape or Consent? Effects of the new rape law on legal reasoning and thinking (RJ P19-0515:1), three types of qualitative data were collected; field notes from observations of 20 court hearings (6 in Districts Court, 13 in Appeals Court, 1 remand hearing), including 5 deliberations; written judgements; and tape-recorded and transcribed interviews with 62 legal actors (23 judges, 15 prosecutors, 24 defence lawyers/victims’ counsels).
- 4.
Even if the Swedish code of judicial procedure declares that “court hearings shall be open to the public” (5 chapter. 1 §), exceptions to this general rule prevail, e.g., if “it deems it to be of extraordinary importance that the information is not disclosed” as regulated in the Secrecy Act. It should be noted that the situation is different in, e.g., Denmark, Norway and the UK, where rape trials are usually open to the public.
- 5.
The new Swedish rape legislation is based on voluntariness as a basic requisite for rape (see Bladini and Svedberg Andersson [2020] for more information about the legal reform).
- 6.
In practice, strategy 1 gave us access to 6 cases, strategy 2–7 cases and strategy 3–5 cases.
- 7.
The research ethics guidelines (Swedish Research Council 2017) offer a stronger protection than the legal regulations on confidentiality, which is an important aspect to highlight because this aspect is crucial in building trust.
- 8.
At main hearings in Swedish District Courts, the members of the courts are one law judge and three lay judges, unless otherwise prescribed. The law judge is the presiding judge with the authority to control access to the courtroom. In a Court of Appeal, the members of the court are three law judges and two lay judges. One of the law judges is the presiding judge.
- 9.
A top tip is to be prepared with your calendar when approaching potential participants outside the courtroom; try to schedule a date for the interview directly, especially with the lawyers. Our experience was that, compared with privately employed lawyers, prosecutors employed in the public sector and judges answered our emails more frequently.
References
Baldwin, John. 2008. Research on the criminal courts. In Doing research on crime and justice, ed. R.D. King and E. Wincup, 375–398. Oxford: Oxford University Press.
Bergman Blix, Stina, and Åsa Wettergren. 2015. The emotional labour of gaining and maintaining access to the field. Qualitative Research 15 (6): 688–704.
Bergman Blix, Stina, and Åsa Wettergren. 2018. Professional emotions in court. A sociological perspective. London: Routledge.
Bitsch, Anne. 2018. The micro-politics of emotions in legal space: An autoethnography about sexual violence and displacement in Norway. Gender, Place & Culture 25 (10): 1514–1532.
Bladini, Moa, and Wanna Svedberg Andersson. 2020. Swedish rape legislation from use of force to voluntariness-critical reflections from an everyday life perspective. Bergen Journal of Criminal Law & Criminal Justice 8 (2): 95–125.
Bryman, Alan. 2004. Social research methods. Oxford: Oxford University Press.
Burman, Michele, Lynn Jamieson, Jan Nicholson, and Oona Brooks. 2007. Impact of aspects of the law of evidence in sexual offence trials: An evaluation study. Scottish Government.
Booth, Tracey. 2012. ‘Cooling out’ victims of crime: Managing victim participation in the sentencing in a superior sentencing court. Australian & New Zealand Journal of Criminology 45 (2): 214–230.
Daly, Ellen. 2022. Making new meanings: The entextualisation of digital communications evidence in English sexual offences trials. Crime Media Culture 18 (4): 578–596.
Darbyshire, Penny. 2011. Sitting in judgment: The working lives of judges. London: Hart Publishing, Bloomsbury Collections.
Hvala, Heather R., and Sameena Mulla. 2018. “That’s how she talks”: Animating text message evidence in the sexual assault trial. Law & Society Review 52 (2): 401–435.
Empson, Laura. 2018. Elite interviewing in professional organizations. Journal of Professions and Organization 5: 58–69.
Faria, Caroline, Sarah Klosterkamp, Rebecca Maria Torres, and Jayme Walenta. 2020. Embodied exhibits: Toward a feminist geographic courtroom ethnography. Annals of the American Association of Geographers 110 (4): 1095–1113.
Fielding, Nigel G. 2013. Lay people in court: The experience of defendants, eyewitnesses and victims. The British Journal of Sociology 64 (2): 287–307.
Flower, Lisa. 2019. Interactional justice: The role of emotions in the performance of loyalty. Oxford: Routledge.
Gill, N., J. Allsopp, A. Burridge, D. Fisher, M. Griffiths, N. Paszkiewicz, and R. Rotter. 2021. The tribunal atmosphere: On qualitative barriers to access to justice. Geoforum 119: 61–71.
Kraska, Peter B., Brent, John J., and W. Lawrence Newman. 2021. Criminal justice and criminology research methods. Oxford: Routledge.
Lees, Sue. 1996. Carnal knowledge. Rape on trial. London: Hamish Hamilton.
Noaks, Lesley, and Emma Wincup. 2004. Criminological research: Understanding qualitative methods. London: Sage.
Ntamazeze, Janvière. 2016. Trust and capabilities. Experiences from Rwanda’s informal financial institutions, PhD Thesis, University of Gothenburg, School of Global Studies.
O’ Reilly, Karen. 2009. Key concepts in ethnography. London: Sage.
Roach Anleu, Sharyn, Stina Bergman Blix, Kathy Mack, Åsa Wettergren. 2016. Observing judicial work and emotions: Using two researchers. Qualitative Research 164: 375–391.
Shaffir, B. William, and Robert A. Stebbins. 1991. Getting in. In Experience fieldwork. An inside view of qualitative research, ed. B.W. Shaffir and R.A. Stebbins. London: Sage.
SFS 1980:100. The Swedish code of judicial procedure.
Smith, Olivia, and Tina Skinner. 2012. Observing court responses to victims of rape and sexual assault. Feminist Criminology 7 (4): 298–326.
Smith, Olivia, and Tina Skinner. 2017. How rape myths are used and challenged in rape and sexual assault trials. Social & Legal Studies 26 (4): 441–466.
Smith, Olivia. 2018. Rape trials in England and Wales: Observing justice and rethinking rape myths. Cham: Palgrave Macmillan.
Spiegel, Samuel J. 2021. Climate injustice, criminalisation of land protection and anti-colonial solidarity: Courtroom ethnography in an age of fossil fuel violence. Political Geography 84: 102298.
Swedish Research Council. 2017. Good research practice. Stockholm: Swedish Research Council.
Temkin, Jennifer, Jacqueline M. Gray, and Jastine Barrett. 2018. Different functions of rape myth use in court: Findings from a trial observation study. Feminist Criminology 13 (2): 205–226.
Törnqvist, Nina. 2017. Att göra rätt: En studie om professionell respektabilitet, emotioner och narrativa linjer bland relationsvåldsspecialiserade åklagare. Stockholm: Stockholms universitet.
Walenta, Jayme. 2020. Courtroom ethnography: Researching the intersection of law, space, and everyday practices. The Professional Geographer 72 (1): 131–138.
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Uhnoo, S., Bladini, M., Wettergren, Å. (2023). Negotiating Access. In: Flower, L., Klosterkamp, S. (eds) Courtroom Ethnography. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-37985-7_3
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