The defense attorney runs down the hallway in a hurry, she looks like she is running late. She is probably the defense lawyer in the trial that will take place next in the room we are waiting in front of. She looks around and then walks up to my colleague and asks him "Are you my client?"

The above mentioned scene took place in a German local court, where low-level offences are adjudicated on a daily basis. My colleague – a young man, born and raised in Germany, with an Iranian migration background – was waiting in front of the courtroom of the trial we wanted to observe. What is unusual about the scene is how ordinary it actually is. Anyone who observes trials in local courts for any length of time will quickly notice that you encounter people of certain social groups, namely racialized (and) poor people, more often – if not almost exclusively – than others. Or rather, that certain others – such as White middle-class people – are there solely to practice their legal professions. It is only in this context that the lawyer’s question seems neither inappropriate to her nor surprising to us. And it is exactly this context that our research project “Performances and Manifestations of Institutional Racism in the criminal justice system” funded by the German Federal Ministry of Education and Research (BMBF) wanted to analyze.

In this text, I would like to draw on the experiences of our team during ethnographic research in 2023, which aimed at investigating how local courts reproduce racist (and classist) effects through the sentencing of minor offenses (Bögelein and Rezene 2023). Access to the court proceedings did (in most cases) not pose a challenge, as the hearings we attended involved everyday crimes, to which the public has access due to the principle of publicity guaranteed by Section 169 paragraph 1 sentence 1 GVG (German Court Constitution Act). The barriers to access I discuss in this text were not about physical access. I would describe them as meta-level barriers – barriers that are shaped by the institutional discomfort with our research focus, which determined how people responded to us, and how much openness we could expect. They arise from the challenge of grasping how contested and taboo the concept of institutional racism is in the judicial context (González Hauck 2022; Liebscher, Remus, and Bartel 2014; Schlüter and Schoenes 2016; Solanke 2005). Institutional racism can be briefly described as the sum of institutional processes that lead to unequal outcomes for racialized people, regardless of the intentions of those acting within the institution. It is both a condition and a result of structural racism.

Navigating Denial

While ethnographic research on the role of social oppression mechanisms along the categories of race, class, gender, etc. is already established in other national contexts, trial observations in the German-speaking countries are more likely to be used by activist groups (e.g. Justice Collective, KOP Berlin, Alliance against Racial Profiling). Taking a critical look behind the scenes of powerful institutions is essential for researchers seeking to understand the decision-making processes that shape our societies (Becker and Aiello 2013). The rejection of our research topic was something we encountered even before entering the field, and still do. Due to a limited understanding of what structural racism entails and how institutional racism operates, we often found ourselves in conversations with legal professionals who viewed racism more as an accusation than as a structural problem, denying its institutional relevance. This perception shaped our approach as we entered the field. It also directly influenced the way we interacted with people during our research. For our project, we conducted non-participant observations, which meant our exchanges with professionals in the field were limited. The hearings we observed were relatively informal; courtroom actors frequently chatted among themselves, often about personal matters. Usually, the atmosphere was strikingly relaxed – judges and prosecutors chatted about vacations or weekend plans during breaks – even as they handled cases that deeply impacted the defendants’ lives. This contrast revealed how inequalities can become normalized within the fabric of everyday institutional routines.

Occasionally, during breaks or when defendants failed to appear (which happened often), we were asked why we were taking notes. Sometimes the question came with curiosity, other times with a more skeptical undertone. We usually gave a brief response, saying that we were criminologists researching decision-making processes. This typically sufficed, and no further questions followed. Still, the moment when the ethnographer, who is usually “invisible”, suddenly becomes the focus of attention in the courtroom is always a delicate one. For us, the question of how openly we communicate our research intentions was a challenging one that recurred throughout the research process and had to be continuously renegotiated.

Dilemmas of transparency

Judge to observers: "Researching decision-making processes? Hmm… interesting. But everything I do is codified in the StPO. What is there to find out?"

At its core, transparency is an ethical issue with several layers. On one hand, the observed actors arguably have the right to know more about a study that draws insights from their actions and practices. On the other hand, from our research perspective, it was precisely the unguarded behavior of these actors – behavior that reinforces social hierarchies – that we aimed to study. Revealing our research focus would have influenced the field (even more than our presence already did) and, by extension, shaped our findings. Another crucial point was our awareness that while we were attempting to expose power structures, we could not ignore the fact that these very structures could have adverse effects on those in the most vulnerable positions, namely, the defendants. This awareness brought a sense of responsibility on our part. As a result, we chose to disclose as little as possible about our specific research focus. This question of transparency is always present in ethnographic research, but I want to emphasize it here because it is also a question that affects us as researchers. Conducting research that aims to confront social injustice can certainly feel empowering. Yet, it also sometimes leaves us feeling as if we are operating undercover, or even dishonest, because we are not telling the whole truth. An additional layer, implicit in all of this, is the concern that full transparency might limit our access to the field. As noted, access to legal proceedings is guaranteed by the principle of public transparency. Still, colleagues working on the same topic in other parts of Germany have faced significant barriers. Some were denied access to lists showing which offenses would be tried in which courtrooms. As a result, they had to spend much more time identifying relevant cases, often ending up in hearings they had not intended to observe, and even had to acquire a press pass just to access the trial lists. We encountered similar challenges when trying to arrange interviews with judges, prosecutors, and defense attorneys, which – as previously described and suggested in the example above – are due to the limited understanding of how racism and other forms of inequality operate.

How power shapes research on power

A growing body of studies addresses how power dynamics shape the ethnographic research process itself – affecting everything from how we frame our research questions to the kinds of data we are able to collect. In courtroom ethnography, these dynamics become especially evident. Reflecting on both the physical and meta-level barriers to courtroom research reveals not only the deeply political nature of such work but also the extent to which issues like institutional racism remain contested – even within institutions that should, in principle, be committed to transparency and accountability. These experiences compel us to ask: for how much longer will ethnographers be able to access these spaces with even the “relative ease” we now have? Ethnographers will increasingly need to reflect on and strategize around what can be done now to secure continued access to these spaces, before such access becomes even more restricted. Consequently, maintaining ethnographic access to legal institutions calls for careful attention to its political and ethical significance alongside methodological concerns.

References

Becker, Sarah, and Brittnie Aiello. 2013. “The Continuum of Complicity: ‘Studying up’/Studying Power as a Feminist, Anti-Racist, or Social Justice Venture.” Women’s Studies International Forum.

Bögelein, Nicole, and Dyana Rezene. 2023. “Zeigt sich im Gerichtssaal Institutioneller Rassismus? Hinführende Überlegungen zu einem Forschungsprojekt.” Neue Kriminalpolitik 35(4):528–44. doi:10.5771/0934-9200-2023-4-528.

González Hauck, Sué. 2022. “Weiße Deutungshoheit statt Objektivität: Der ‚objektive Dritte’ und die systematische Abwertung rassismuserfahrener Perspektiven.” Zeitschrift für Rechtssoziologie 42(2):153–75. doi:10.1515/zfrs-2022-0201.

Liebscher, Doris, Juana Remus, and Daniel Bartel. 2014. “Rassismus vor Gericht. Weiße Norm und Schwarzes Wissen im rechtlichen Raum.” Kritische Justiz 135–51. doi:10.5771/0023-4834-2014-2-135.

Schlüter, Sophie, and Katharina Schoenes. 2016. “Zur Ent-Thematisierung von Rassismus in der Justiz.” movements. Journal for Critical Migration and Border Regime Studies 2(1).

Solanke, Iyiola. 2005. “Where Are the Black Lawyers in Germany?” Rochester, NY.