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[Published in SOCIAL RESEARCH, Vol. 37, No. 1, Spring, 1970]
TRANSFORMATIONS OF REALITY IN THE LEGAL PROCESS*
BY H. TAYLOR BUCKNER E-Mail: firstname.lastname@example.org
"REALITY" is not always constructed according to the same rules and processes. People construct their sense of everyday reality in differing ways, and there are many specific enclaves of reality wherein certain formalized rules prevail over common sense rules. "There is a right way, a wrong way, and the Army way." In most of our experiences acts are routinely interpreted within the reality in which they arise, and no threat of differing interpretations disturbs the participants. In other cases, such as cross-culture contacts, acts are interpreted in completely divergent realities, and no alignment takes place, or alignment takes place only after a great deal of effort. In yet other cases, an act will occur within one reality and then will be reinterpreted within the framework of another reality. When such reinterpretation is done it may be carried out pell-mell or by a system of formalized rules, which is the case in the operation of the legal process. All reality on a group level is formed by independent actors coming to agree to a common set of concepts, within a common frame of reference. The legal system provides a very formal example of the process of group reality formation: its procedures and precedents for coming to agreements are recorded and stand as guides for the formation of further agreements within the frame of reference of legal reality. This paper examines the rules for transforming everyday reality into "legal reality."
Acts are without inherent meaning. All meaning is socially assigned to acts by the individuals who come to know of them, on the basis of their own understanding of the acts' relationship to their sense of "reality." (1 ) An act may be taken to serve as an indicator of the subjective intent of the actor, an indicator of greater or lesser clarity, whether or not the act was intended to stand as a sign of his subjective intent by the actor. (2)
In law, for an act to constitute a crime, there must be unity of act and intent (except in the case of criminal negligence). (3) The act is basic and must only be linked to the perpetrator, while proof of intent, which is an aspect of the subjective reality of the perpetrator, must either depend on his own linguistic objectification of his intent, or upon an inference from the conditions surrounding the act, as they were perceived, which tends to support the assertion of intentionality. For most acts the ordinary consequences of a voluntary action are presumed to be intended, and if the act itself was unlawful, unlawful intent can be presumed. (4) For other acts such as libel, specific intent must be proven.
The problem in an assertion of criminality is twofold. First, it must be proven that the actor committed the act and that he intended to do so. Second, it must be proven that the act itself constituted a specific crime. The procedures for proving these two contentions consist of a set of rules for transforming perceived acts into linguistic objectifications and comparing these with linguistic descriptions of prohibited acts so as to determine whether the two are the same. As a control over this process there are provisions in law for reviewing the application of the transformational rules to determine whether they were "correctly" applied to the specific case.
Divergent Realities Produce Divergent Typifications of Acts (5)
An act may be typified differently in many distinct realities. In each case, elements of the act relevant to its typification in a specific reality are attended to and selected out in the typification process. The typifications of an act are therefore not isomorphic between realities. Consequently, assessments of the act based on these several typifications will differ markedly.
Take, for example, a narcotics addict seeking something to steal which he can sell so that he may buy heroin. Late at night he sees a portable television set through the window of a house. He finds a spade and uses it to force open the locked window, climbs in and picks up the television set. As he is leaving the house via the window, with the television under his arm, a patrol car flashes its spotlight down the side of the house and the officer sees him. The addict is apprehended and taken to jail to be charged with burglary in the first degree.
The addict, up to the time of his apprehension, had considered his burglary to be an instrumental act. He needed money and no legitimate source could supply enough. Though he had committed many burglaries he thought of himself as an addict, rather than as a burglar. He knew that most of the houses he burglarized were insured, and he assumed that the owners added fictitious losses to those he caused when they reported the burglaries, so he felt that the owners were no less criminal than he. As he entered the house he felt a sense of excitement and fear. He was thankful that no one awoke when he pried up the window. As he was leaving he saw the spotlight and knew that flight was hopeless. He felt the cool ground as he dropped to it, and the handcuffs when the officer put them on. Then he began to think of what would become of him. This is his reality.
The officer was patrolling his beat. He was flashing his light up alleys and between houses because a rash of burglaries had occurred on his beat, and from the modus operandi they seemed to be the work of an opportunistic "hype-burglar." (6) When he saw a man leaving a window with a television set under his arm, he immediately assumed the man was, and typified him as, a burglar, probably the man he was looking for. Stopping his car, he drew his revolver, and jumped out. He ran along the side of the house and shouted to the burglar to fall to his knees, which he did. The officer then searched his prisoner, and locked him in the back seat of the patrol car. He picked up the television set and put it in the trunk as evidence, explaining to the occupants of the house, who had appeared, that it would be returned later. He then began to examine the scene of the burglary. Starting with the idea that he had captured a burglar, he searched for the means of entrance. Finding the pry marks and the spade, he radioed for a police photographer to take photographs, and he began to make out his report. When the patrol wagon came in response to his call, he sent the burglar to jail. These are some elements of the officer's reality, and explain his typification of the person he caught as a burglar.
In this example the possible interpretations of the act do not vary as widely as they might in the case of riots or demonstrations, where each side has a complex system of justifications for its actions, and a hostile typification of the other side. (7)
It is rare in situations such as burglary that ideas of the act committed will differ greatly, but the meaning of the act is quite different for the offender and for the officer. Since the officer is society's agent, his view is provisionally upheld by the legal system. It gives him the right to arrest and detain persons, using all force necessary, when he has "reasonable cause to believe that the person to be arrested has committed an offense in his presence." (8)
After arrest and charging, the offender, who is now a defendant, consults with his attorney, or with the public defender, to ascertain the possibility of having the officer's typification of the situation set aside, the re-enforcing of his own no longer being relevant. His attorney examines the evidence and the crime that his client is charged with to see if it has the elements which are usually associated with such crimes. The attorney may then, if the crime is not unusual, propose to his client the possibility of a "deal" whereby the burglary charge may be reduced to "petty theft," a lesser offense, but still an offense, in return for a guilty plea. (9) If the client accepts this offer he will go to jail or be put on probation, albeit for an incomplete characterization of his act, and the officer's typification of him as a burglar is upheld by default. (10)
Should the defendant be atypical or should the crime be atypical, or should he refuse to make a deal, to "cop out," his case will go to trial and the typification procedure of the officer will be called into question. If the officer were to have made a gross error in his original apprehension, the district attorney would probably drop the charges. Thus those cases which do go to trial tend to be procedurally correct, so far as is known.
The Officer's Typification Process is Compared with a "Common Sense" Typification Process
The officer must state the means by which he came to judge that the defendant was a burglar. He is required by law to have had "reasonable cause" to believe that the defendant was a burglar before he arrests him. Reasonable cause is defined for police officers as "that state of affairs which would lead a reasonable man to a strong suspicion that the offender had committed a crime." (11) By introducing the "reasonable man" and his typification procedures, a societal control is placed on the extensive socialization of the police officer to police perceptions. The "reasonable man" supposedly uses "common sense" knowledge when making inferences about possible criminality, not the specialized perceptions and knowledge of the police officer. In the burglary case mentioned, the officer might state that he saw a man leaving a building with a television set, via a window late at night, and from these observations he inferred that the man was a burglar, as would any reasonable man. Had he simply stopped a man on the street for no reason at all, and searched him, finding evidence of criminality, the evidence so discovered would not have been admissible (in California). If police officers were allowed to arrest citizens without any justification, and a "common sense" justification of "reasonable cause" appeals to most people as a fair one, the officers would be independent actors rather than social agents in their apprehensions.
The importance with which this conformity to the typification processes of the "reasonable man" is viewed may be seen from the fact that higher courts routinely reverse convictions of people who have been proven guilty, if the essential evidence was gathered by any procedure which cannot be justified in terms of "common sense." While society gives the police officer the warrant to typify behavior as criminal, it restricts him, in theory, to typification methods which an ordinary member of society would use in a similar situation.
In the courtroom the act which is under discussion is quite remote. All the people concerned are in the courtroom, not on the street, it is daytime, and the accused burglar is wearing a business suit and tie.
In order to test the officer's typification procedure against common sense, the court must know what it was. The only way in which it can be made present is by being linguistically objectified (that is, made into a linguistic object) and introduced. The entire series of acts is linguistically objectified by the various participants from their different perspectives, in order to bring to the reality of the court the "legally relevant" aspects of the reality of the street. Reality at the court level consists almost entirely of linguistic objectifications of past experiences, which are taken in law as constituting the "facts" of the case. (12)
There are three uses for the linguistic objectifications which are brought into the reality of the court.
First, the officer must objectify his thoughts and actions in the situation. This may be exceedingly difficult because many elements of the situation, elements to which the officer attended without being aware of it, are hard to put into words. It may be that elements of the act which excited his attention were subliminally perceived - smells, manner of walking, the way the suspect looked at him, strange sounds - and never brought to his conscious awareness.
Second, the officer must demonstrate the isomorphism of his objectifications and typifications with the presumed "common sense" typifications which a "reasonable man" would have made in a similar situation. (13)
Third, the prosecution must demonstrate that all the elements of the crime as specified in abstract language in the Penal Code have been proven by the linguistic objectifications, that is, it must prove that the two sets of words, one describing the act and one quoted from the Code, correspond in all particulars. (l4) Suppose that our burglar were caught while it was still dark outside and first degree burglary were charged because the crime was committed at night. (15) Suppose further, however, that the defense could prove that the act actually took place five minutes after "official" sunrise, even though it was still dark. Situationally, the offense is the same, a man was burglarizing a house in the dark, but legally it is no longer a first degree burglary, because the two sets of words no longer agree. (16)
Linguistic Objectifications Must be Accurate or the Transformation is Defective
Since the crucial link between the act and its assessment in court is the quality of the linguistic objectifications of the participants, and since, in adversary proceedings a person might be motivated, in consideration of his own interests, to falsify or distort his testimony, regardless of which side he is on, it has been found necessary to establish both general and specific rules and punishments to control the quality and veracity of these objectifications.
In general, the quality of testimony is insured by the prohibition against the introduction of hearsay evidence. Hearsay evidence is evidence of a statement that is offered to prove the truth of a matter which was made other than by a witness, while he is testifying at the hearing. Were the rule enforced without exception, it would allow only the people who actually witnessed an act, and who were also in the court and sworn to testify, to speak of it. There are numerous exceptions which take into account the special nature of utterances, or the special conditions which might not allow the speaker to appear. Thus dying declarations, spontaneous declarations, evidence of inconsistent statements by a witness, and so forth, are often admissible. (l7) These necessary compromises allow the work of the court to continue when it would be impossible for it to do so under a strict interpretation of the hearsay rule. With these exceptions all evidence offered by witnesses is a direct recounting of their own experience. Thus, at the trial, the act is recreated in legal reality by the participants from their own subjective realities. (A defendant, of course, may choose not to testify, not to bring his own reality into the court, if he feels that it might tend to incriminate him.) (18) This direct testimony becomes the "facts" of the case in legal reality. Note, however, the incredible number of "facts" from everyday reality which are prohibited entrance into legal reality for one reason or another.
Specific laws to keep witnesses from lying about their experiences, perjury laws, have been enacted to provide penalties for falsifying objectifications. (19) In the reality of the court where all evidence is objectified, perjury is decided by the weight-of-numbers of objectifications. Thus the testimony of two witnesses, or of one witness combined with corroborating circumstances, in other words two agreeing linguistic objectifications, are required to prove the perjury of a witness. (20)
In combination, the hearsay rule and the perjury laws are attempts to insure that the transformation from experience to objectification is made correctly so that the jury (or the court in some instances) is presented with the "facts" in such a way that it can assess the defendant's guilt, that is, determine whether the officer's typification of criminality is correct.
Because a jury of ordinary men, not lawyers, judges or policemen, is the trier of fact, another societal "common sense" control is imposed on the nature of the typifications and their construction, which can be offered into evidence. The specialized perceptions of the police officer must be explained before a rotating jury, in terms which will make the officer's "reasonable cause" appear "reasonable" to these ordinary men. This provides a direct control, in each case, over society's agents, the police.
Preparations for Reality Transformation by Defendants and Officers
The defendant in a criminal action is not usually highly experienced in restructuring his subjective reality into the precise forms required by legal reality. His attorney will guide him and, to a certain extent, substitute for the expertise he lacks in making this transition. For example his attorney will prevent him from being examined if he thinks that the result will be perjury or an admission of guilt. The attorney will concentrate on attacking the existential grounds of the officer's typification process, pointing out flaws and non-common-sense assumptions made by the officer. He operates within legal reality to help his client as best he can to overcome his lack of preparation for making the switch between realities. (21)
Given the fact that defendants in examples such as I have given are usually guilty, if the defense cannot find flaws in the testimony of the officer and other witnesses, or find a mistake of procedure, the only possibility left open is to commit some form of perjury.
For the officer, on the other hand, appearance in court is routine. He is prepared by his training and experience for the possibility of testifying in court, and he has the second-hand experience of his fellow officers to draw on. John Minderman, a ten-year veteran of the San Francisco Police Department, commented in a personal communication:
The defense is entitled to a copy of the incident report prior to trial. Many officers are experienced and adept enough to only fill in the barest legal skeleton of the offense while keeping crucial and damning details unwritten in their minds, thus keeping information from the defense.
The officer has objectified his subjective reality before, and he has practiced applying court rules to acts he sees. For example, while working as a police officer, I was instructed in the proper method for filling out an arrest form for drunks. First, I was to write down my "reasonable cause" for being interested in the person, e.g., I saw him staggering in the park. Second, I was to give the evidence of my senses, e.g., bloodshot eyes, smell of alcoholic beverage on his breath, vomited on clothes, urinated in trousers. Third, I was to give the interpretation which I made from those observations, i.e., that he is incapable of caring for himself, which constitutes the legal cause for arresting him. (22) The drunk has no such training, and can hardly offer a defense against such a methodical charge.
The officer generally knows what evidence is admissible and what is not. He knows what he must do to develop "reasonable cause" that will appear to be reasonable to the common sense of the jury. He orients his investigation around the production of admissible evidence, and the production of "common sense" reasonable cause.
In some cases the press of the immediate situation makes it imperative for the officer to act at once, in the absence of "reasonable cause" that would pass a common-sense test. If his actions result in evidence of criminality he can then "back up" and figure out the way to proceed which will make his evidence admissible. If no such way exists, he may retroject into the situation the necessary elements to support the common-sense basis of his typification of criminality. (23) Since the officer is linguistically objectifying his own subjective reality, there are many ways in which he can stretch it in the light of his present knowledge. He can find what would have constituted reasonable cause had he thought of it at the time, and simply say he did think of it at the time. He can testify to things he did not see which were there. He can anticipate the court's review and put in his initial report items which would have given him reasonable cause had they happened. (24) Finally, and without much danger, he can simply perjure himself. Very few of his fellow officers will testify against him, and no one else is likely to be able to.
Appeal Controls the Application of Transformational Rules
Matters of fact (linguistic objectifications) are assumed in law to be adequately brought out and decided during a trial. Questions of law, i.e., procedure, which arise are dealt with by the court in the progress of the trial. (25) An appeal by the defense must be based on a matter of law. (26) One of the most common bases of appeal is the question of whether or not the officer truly had common-sense reasonable cause to typify the behavior as criminal, regardless of its true criminality. It is toward the standards of appellate review that officers often orient their "production" of reasonable cause.
At the appellate level, transcribed linguistic objectifications are the only signs of the original act. Even the defendant need not appear. (27) On the basis of the transcript of the trial and the behavior described therein, the appellate court decides whether the officer, acting in the now quite remote street situation, had reasonable cause for his typifications. (28) The effect of appellate review is to examine the application of the transformational rules to the concrete case. If all was done correctly the officer's subjective reality is validated, it becomes socially objective reality, and the defendant is "legitimately" typified a criminal by "society."
I have examined a burglary and the operation of the legal process whereby the interpretation of an act is routinely transformed between realities. In this case, and possibly in others, a routinization of the transformational process has led to the formalization of its rules and the emergence of controls to assure their correct implementation. In other transformational processes, as, for example, that which occurs between dreams and everyday reality, rules are only partially and imperfectly institutionalized in our society. In still other transformational processes, as for example, between inter-cultural subjective experiences, rules hardly exist, making each transformation an ad hoc process. The underlying rules for these less agreed upon, but potentially important, transformations, constitute an important area for further research. (29)
* AUTHOR'S NOTE-Revision of a paper read before the Sociology of Law Section of the Annual Meeting of the American Sociological Association, Boston, August, 1968. I would like to thank Leo Van Hoey, John Lennon, and Peter Berger who read and commented on earlier drafts of this paper
.Copyright, H. Taylor Buckner, 1970.
(1) In other words acts are apperceived by consciousness through typifications derived from Subjective realities. See Peter Berger and Thomas Luckmann, The Social Construction of Reality, Garden City, New York: Doubleday, 1966, passim.
(2) Ibid., p. 34.
(3 ) California Penal Code, Section 20 (hereafter cited as Calif. P.C.). Most states' basic laws are somewhat similar as they are all codifications of common law.
(4) Calif. P.C., 21.
(5 ) The word "typification" comes from the work of Alfred Schutz. When Schutz uses the term, he means that we experience a world which has mountains, trees, animals, and fellow men, not a world which is a "mere aggregate of colored spots, incoherent noises, centers of warmth and cold" (Collected Papers, Vol. 1, The Hague; Martinus Nijhoff, 1962, pp. 7-8, 208). Berger and Luckmann define typifications as "schemes in terms of which others are apprehended and 'dealt with' in face to face encounters." (op. cit., p. 29.) In the course of this paper I am interested in the attribution of criminality on the basis of actions, which involves complex typification procedures that vary radically with the typifier's subjective reality.
(6) A ``hype-burglar" is a heroin addict who steals to support his habit. Typically, he is involved in thefts from automobiles and the theft of anything which can be eventually converted into narcotics.
(7) On rare occasion there will be a reciprocal typification wherein both the officer and the offender will define the situation in remarkably similar ways, given their divergent realities. The frequently arrested alcoholic and the arresting officer may both come to view his usual state as being "drunk and incapable." This reciprocal typification speeds the offender's acceptance of the officer's view. Another situation which frequently occurs is the exact opposite of reciprocal typification. Unilateral typification often takes place when the legal framework had never even occurred to the "offender," that is, in his reality the possibility of a legal construction of the meaning of his act had never entered his mind. Law, however, establishes its precedence among realities in such situations through the dictum: "ignorance of the law is no excuse."
(8 ) Calif. P.C., 836.
(9) David Sudnow, "Normal Crimes: Sociological Features of the Penal Code in a Public Defender Office," Social Problems, 12, 3, Winter, 1965, pp. 255-276, discusses this process in detail. See especially p. 260.
(10) Another typification process, based on the officer's report, and on the routine defendant's characteristics, is employed to see if the present burglar is a burglar "like others," which involves: "regular violators, no weapons, low-priced items, little property damage, lower class establishments, largely Negro defendants, independent operators, and a non-professional orientation to the crime." Sudnow, ibid., p. 260. These are the attendant elements of reality in the work life of the Public Defender and District Attorney.
(11) Field notes from police training lectures. The police were studied by participant observation in the course of research for my doctoral dissertation, "The Police: the Culture of a Social Control Agency," unpublished Ph.D. dissertation, University of California, Berkeley, 1967.
(12) Calif. P.C., 1126. Berger and Luckmann, op. cit., p. 38, point out the role of linguistic objectifications in making "present" people from the past and in bridging realities,
(13) In fact, the specialized perceptions of the officer tend to be taken for granted. Learning what elements of a situation to notice automatically takes years of experience. If an ordinary person were in the situation with a police officer who pointed out the clues to which he was attending, he might come to the officer's conclusions, but he almost certainly would not do so alone. Witness the number of people who have seen crimes in progress without noticing that anything unusual was happening.
(14) Cf. Harold Garfinkel, "Conditions of Successful Degradation Ceremonies, American Journal of Sociology, LXI, March 1956, item 4, p. 423.
(15) Calif. P C., 460.
(16) Calif. P C., 463. In practice this "legal" distinction might be overlooked.
(17) California Evidence Code, "Hearsay."
(18) Fifth Amendment, Constitution of the United States, Calif. P.C., 1323, Uniform Code of Military Justice, Art. 31.
(19) One of the oldest rules against perjury is "Thou shalt not bear false witness against thy neighbour," Exodus, 21:16. Calif. P.C., 118 reads: "Every person who, having taken an oath that he will testify, declare, depose, or certify truly before any competent tribunal, officer, or person in any of the cases in which such an oath may by law be administered, willfully and contrary to such oath, states as true any material matter which he knows to be false and every person who testifies, declares, deposes, or certifies 'under penalty of perjury' in any of the cases in which such testimony, declarations, depositions, or certifications is permitted by law under 'penalty of perjury' and willfully states as true any material matter which he knows to be false, is guilty of perjury." The punishment for perjury, a felony, is one to fourteen years in the state prison. Calif. P.C., 126.
(20) Calif. P.C., 1103a.
(21) Defendants may introduce aspects of their own subjective reality in explaining their actions. If this subjective reality is congruent with the experiences of the members of the jury, that is, if the jury finds the defendant's actions "reasonable" in the circumstances, a possibility of acquittal exists. Cf. Garfinkel, op. cit., item 3, p. 423.
(22) Calif. P.C., 647 (f).
(23) Berger and Luckmann, op. cit., p. 147, suggest this process goes on among converts who have switched realities, and reinterpret their old reality in terms of the new.
(24) For example, Drunk Arrest forms tend to be "over-written." Far fewer drunks actually urinate in their pants than the forms indicate, but when it comes to court who is to say? The drunk can't remember, and the officer has it down in writing. "Over-writing" is common, in my experience, when the officer knows in his subjective reality that the offender is guilty but also knows that he cannot prove it in legal reality with evidence legally gathered.
(25) Calif. P.C., 1124,1126.
(26) Calif. P.C,. 1259.
(27) Calif. P.C., 1255.
(28) A certain amount of misunderstanding arises between the police and the courts as a result of this process. As a case moves through the courts it is "purified" and the factual picture of law enforcement contexts is lost. (Wayne R. LaFave, Arrest: The Decision to Take a Suspect into Custody, Boston: Little, Brown and Co., 1965, pp. 490 - 491.) The "reasonable cause" becomes less and less reasonable to the officer as it discounts his highly accurate probabilistic knowledge of criminal behavior.
(29) It is not unreasonable to assume that mankind will sooner or later encounter an intelligent extra-terrestrial life form. What will be the rules governing the communication of experiences under these conditions?
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