by Sean Mulcahy
In the transcript of R v Hickey, a murder trial in the Australian state of New South Wales, sits forty seconds of silence.
[Pause for forty seconds]
That silence could be sustained for a full forty seconds during trial struck me in reading this portion of the trial transcript. The transcript does not pause; its text carries on. Yet this pause was present in the live performance. I have invited you to recreate that courtroom experience so that you could feel it and practice it for yourself. We cannot know what that silence felt like; we only read it and recreate it ex post facto. Silences of varying lengths are always present in live performance, legal or otherwise; their shape and contours incapable of being captured in the (tran)script beyond that of a textual direction like that above.
Silence is a recurring element in legal performance. There is a right to silence (which is ironically often exercised by stating it in words). There is silence in the court. Silence affects and, in particular, attunes the audience to the legal performance.
In legal studies, unlike in theatre and performance studies, we seldom exercise our conscious capacity to attune ourselves to the various ways in which silence can be meaningful. Understanding the significance of silence requires us to listen. Really listen. In so doing, it requires us to develop attunement practices that may be foreign to practitioners of the law.
In almost all legal performances, there is silence as a speaker – I shall refer to them as an actor, as they are not always speaking – speaks. This form of silence between actor and audience may be referred to as conversational or floor-sharing silence, where the actor speaks and the audience is silent except for certain non-verbal reactions such as laughing, clapping and mmhmm-ing that let the actor know they have been heard.
Just as there is audience silence, there is also the silence of the actor in legal performance; in particular, meaningful silence where something is being thought but not heard. This might occur where a witness pauses to consider an answer or where a judge pauses to contemplate documents or when the court pauses to look at images in evidence or when a lawyer pauses to allow their words to sink in. In this moment, the actor can feel the gaze of their audience and the audience holds their breath with a palpable feeling of anticipation for what is to come next.
Of course, not all silence in legal performance has that same power or intentionality. There is also the anxious silence you get when an actor forgets his or her lines and goes searching for words or stumbles crudely over a line or is delayed in acting due to technical problems such as a jarring video-link. There is also silence for effect, the separation out of words or actions for emphasis, which allows the audience a short space to comprehend what has been said and to ascribe meaning to it.
Silence creates tension as noise is momentarily suspended, but it also allows the audience to break and reattune, what is said to sink in, and the actor to test their reception.
Silence in legal performance is not merely the absence of speech; there are other types of silence outside the rhetorical. Thus it is fitting to branch out to focus on other sounds in the courtroom and into the spatialisation of silence. In Acoustic Jurisprudence, Parker refers to the International Criminal Tribunal for Rwanda’s Audio-Visual Redaction Manual, which lists different types of silence to determine which should be redacted from audio transcripts of tribunal proceedings. The first of these is dead silence, where there is no noise or sound. There is also noisy silence – a seeming contradiction in terms – where background noises can be heard whilst nothing is said: things like general chatter, footsteps, doors creaking, pens dropping, bangs, coughing, restlessness and the hum of strip-lighting, air-conditioning units, and computer fans.
Moments of silence in legal performance allow the audience to attune to the outside and recognise the connection of law and its community. Through attuning oneself to the background noise in legal performance, one can begin to connect to oneself and others in the space around.
Conversational silence allows the audience to attune to what the other is saying; silence for effect attunes the audience to the story; in moments of anxious silence when the words are lost, the audience attunes to the speaker, willing them to speak; and in noisy silence, the audience attune to the background noises and appreciate law’s location within the civic and bureaucratic space. An exploration of silence in legal performance leads to the conclusion that silence creates a space of listening or attunement and enables participants in the legal proceeding to pay attention to meaning and the surrounding environment. It is an opportunity to let the words and noises sink in and, in so doing, to comprehend their meaning. It entails a form of responsible listening, attuned to all that surrounds, and requires those within the legal performance to be actively engaged in listening to others – both voices and sounds.
It is impossible to decisively conclude what went on in the testifier’s mind in the forty seconds silence in the proceedings for R v Hickey or how those within the proceedings responded to this silence, whether they sat in concentration or drifted in and out. The practice of attunement as a form of listening may nonetheless offer a way of understanding silence and noise within legal performance and its surrounds. Here I hope to have pointed out some directions to understanding the power of silence in the court and invited you to listen and attune yourself to silence in legal performance.
Sean Mulcahy’s full article Silence and attunement in legal performance is available in the Canadian Journal of Law and Society