PROTOKOŁY SĄDOWE JAKO KONSTRUKCJA KULTUROWA

Abstract

Although the minutes of trials are one of the crucial parts of the Polish penal and civil law procedure, rarely does the legal theory draw its attention to the arbitrariness of the data contained in the minutes. Using the approach of the ethnomethodologists, it is worth looking at the process of preparing the minutes (protocoling) as at a sui generis cultural construct, which frames the data for trials. Minutes, supposed to express the witness’ speech, are appreciated more by the legislator than the witness’ writing. However, according to the legal theory, not all of the elements of a speech shall be written down. What is more, in practice, not all of the elements of a protocol, which are recommended by theorists, are present in protocols. The language written in the minutes differs from the language of oral expression in the trial. Moreover, the hierarchical relation between the judge and the person who writes down the minutes often leads to a situation in which the minutes are dictated not by a witness but by a judge.