A Modern Trial: A Study of the Use of Video-Recorded Testimonies in the Swedish Court of Appeal

Published date29 April 2013
DOIhttps://doi.org/10.1108/S1059-4337(2013)0000061007
Pages81-135
Date29 April 2013
AuthorLeif Dahlberg
A MODERN TRIAL: A STUDY OF
THE USE OF VIDEO-RECORDED
TESTIMONIES IN THE SWEDISH
COURT OF APPEAL
Leif Dahlberg
ABSTRACT
The essay studies the introduction and use of audio-visual media in
contemporary Swedish courtroom praxis and how this affects social
interaction and the constitution of judicial space. The background to
the study is the increasing use of video technology in law courts during
the last decennium, and in particular the reformed trial code regulating
court proceedings introduced in Sweden in 2008. The reform is called A
Modern Trial (En modernare ra
¨ttega
˚ng, Proposition 2004/05:131).An
important innovation is that testimonies in lower level court proceedings
now are video recorded and, in case of an appeal trial, then are screened in
the appellate court. The study of social interaction and the constitution of
judicial space in the essay is based in part on an ethnographic study of the
Stockholm appellate court (Svea hovra
¨tt) conducted in the fall 2010; in
part on a study of the preparatory works to the legal reform; and in part
on research on how media technology affects social interaction and the
constitution of space and place.
Studies in Law, Politics, and Society, Volume 61, 81–135
Copyright r2013 by Emerald Group Publishing Limited
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1108/S1059-4337(2013)0000061007
81
Le premier geste de la justice n’est ni intellectuel ni moral, mais architectural et
symbolique: de
´limiter un espace sensible qui tienne a
`distance l’indignation morale et la
cole
`re publique, de
´gager un temps pour cela, arreˆ ter une re
`gle du jeu, convenir d’un
objectif et instituer des acteurs. (Garapon, 2001/2010, p. 19)
INTRODUCTION
I will begin by describing a scene from the Swedish court of appeal that,
while it is typical of the recently reformed Swedish trial procedure, is also in
some respects untypical of the same procedure. The scene is taken from a
case tried in the Stockholm appellate court (Svea hovra
¨tt) on November 26,
2010 (Svea hovra
¨tt, 2010, Case B 676-10). The person who has appealed the
decision from the first instance is a young man sentenced for having
physically abused and verbally threatened his parents. In the courtroom,
the claimants in the first instance (i.e., the parents) are not present, but are
represented both by a public prosecutor and legal counsel (both women).
1
The appellant is present and is represented by legal counsel (a man). The
first part of the scene described below exemplifies the reformed procedure in
the court of appeal and the second part constitutes an exception.
The trial is opened by the presiding judge, noting who is there and
ensuring that there are no formal obstacles to begin the proceedings. Then
another judge gives an account of the judicial decision that has been
appealed (but this is often done by the presiding judge). After this the
appealing party states which changes he would like to make to the decision,
followed by the other party stating which changes they agree to and which
they oppose. The prosecutor then presents a description of the facts in the
case, followed by the appellant counsel giving his view of the facts. The
court then starts to go through the evidence in the case.
The evidence in this case consists mainly of video-recorded testimony
from the trial in the lower level court.
2
First the court plays the testimony
given by the father. The screening begins at 9.53 AM and ends at 10.40 AM,
lasting 47 minutes. The video footage shows the head and torso as well as
the hands of the father. During the video recording the camera is fixed,
it neither moves nor zooms in or out. In the video, to the left behind the
father, one can also see a female person that we later learn to be the mother.
During the father’s testimony in the lower level court, the defendant left the
courtroom, not able or willing to listen to the allegations made against him,
and seemingly did not take further part in the proceedings. After the
screening of the first video-recorded testimony from the lower level court,
LEIF DAHLBERG82
the court of appeal takes a ten-minute break. During the break, the parties
and the audience have to leave the courtroom. When the court resumes, it
plays the video-recorded testimony of the mother from the lower level court.
The screening begins at 10.54 AM and ends at 11.33 AM, lasting 39 minutes.
The sound quality is not very good and at times it is difficult to hear what
the mother says.
3
I will not go into the facts of the case, but in the background to the family
drama are traumatic experiences from war-time Bosnia, difficulties in
adapting to Sweden as a host country, psychiatric medication, and insuffi-
cient support from the social authorities. It should be noted that whereas in
the lower level court the defendant could not – or would not – listen to the
accounts and allegations of his parents, in the court of appeal he calmly and
attentively looks at and listens to their video-recorded testimonies. It should
also be noted that the recorded testimony is screened only once and that it is
not followed by comments or discussion, there is no critical evaluation of
the recorded testimonial evidence. This practice may be contrasted with
how courts generally treat other video-recorded evidence, for instance from
surveillance cameras. In the latter case, the video is typically shown several
times – certain parts may be selected as more important and screened in slow
motion, perhaps even frame-by-frame – and these videos are always
critically evaluated, analyzed and commented upon.
4
So far, the progress of the trial is typical of the reformed legal procedure
in the Swedish court of appeal. But now there will be an untypical turn of
events. Since the son in the trial in the first instance could not – or would
not – give testimony, it is not possible to playback a video-recorded
testimony from the lower level court. Instead, the court of appeal now
conducts a live interrogation of the appellant. This interrogation is audio
recorded.
5
Again I will not give an account of the testimony, but it is striking
that the son now, in the absence of his parents, could give a coherent and
comprehensive account of the events and also was able to answer questions
and explain certain details. What makes this part of the appeal trial unty-
pical is that after the introduction of the reformed procedure in the Swedish
court system in November 2008, the court of appeal very seldom hears live
oral testimony. Instead it will screen the video-recorded testimony from the
first instance, and if necessary ask additional questions – although this
happens very infrequently.
6
The appellant (the defendant in the first
instance) will thus normally watch his or her own video-recorded testimony
from the lower level court – and if the claimant from the first instance is
present, he or she will also see his or her own testimony – but in this case
there were no such narcissistic confrontations.
A Modern Trial 83

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