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Representations of Reality in a Court of Law

by Rebecca Funnell, Department of Sociology, University of Warwick [1]



This article explores the presentation and representation of reality in an English legal context. It considers how competing claims of truth are presented, and examines some of the factors which may inform, challenge or endorse such claims. The article employs a range of sociological and critical legal perspectives which challenge the ‘intrinsic rationality’ of the court. Specific examples of factors which may influence the presentation, identification and interpretation of truth are identified through situated ethnographic investigation, and grouped around themes. The analysis builds on observations carried out over the course of a four-day trial and the field notes from this research were used to illustrate further the constructed nature of reality in court. The limitations of the research process and my role as ‘I-as-researcher’, with its associated impact on the reliability and validity are identified along with areas for future research.

KEYWORDS: Legal process, intrinsic rationality, court, ethnographic approach, presentation of self.



This article explores the presentation and representation of ‘reality’ in an English legal context. It seeks to explore how competing claims of truth are presented and examined, and some of the factors which may inform, challenge or endorse such claims. The literature suggests that such claims may be deliberately constructed to present a particular perspective – for example a defendant deliberately and knowingly falsifying a presentation of reality so as to avoid conviction – or unintentionally constructed, for example a misreading of a social context or the intentions of another person (Ward, 2004).

This article seeks to challenge the institutionalised notion that through the legal process with its intrinsic rationality a definitive truth is established. Rather it suggests that notions of truth and fact are themselves socially constructed and what occurs in a legal context is the presentation of versions of reality, which are themselves produced and reproduced by a range of structural and ideological factors.

The contested and adversarial nature of the judicial system, with defined roles of prosecution and defence, and the pivotal role of the judge, offers a powerful context for exploring how and why different interpretations of reality might occur in social settings. For example, a defendant may wish to present him/herself as innocent by shaping a particular sense of reality; equally, a prosecution case may seek to undermine a witness’s grasp of the facts, establishing doubt which might benefit a particular argument.

A number of factors might also lead to the misinterpretation of reality, for example the specific ways in which the prosecution and defence ask questions to generate certain answers. Furthermore, barristers try to unpick a specific presentation of reality, and frame questions to generate answers that best support their case. These questions act as scaffolding, framing the reality presented through subsequent dialogue.

In this article specific examples of factors which may influence the presentation, identification and interpretation of truth and reality are identified through ethnographic fieldwork. These are derived from data gathered from a short field investigation as well as a review of the relevant literature. The ethnographic fieldwork was undertaken between in July and August 2007 at an East Anglian Crown Court. The selected trial was on two counts of blackmail and one count of harassment.

Throughout the research process I was aware of my role as ‘I-as-researcher’ (Schostak, 2002) and its impact on the reliability and validity of the research. Focusing on ‘I-as-researcher’ supports a recognition that what distinguishes social science from the physical sciences is an engagement with the social world which involves actors who have purposes, who choose to act rationally and irrationally, and who return the ‘look’ of the researcher with their own, making judgements, forming opinions and making decisions. As such, the researcher is a subject within a world of subjects, making it important to clarify her/his position, look and influence on the research process itself. This view is consistent with Giddens’s notion of the double hermeneutic and its acknowledgement of the complex inter-relationship between the social world and the researcher (Giddens, 1984). In this particular context this refers to the influence my presence in court may have made to the observed situation and my selection of the issues, themes, quotations and other evidence which support the perspectives I offer. I sought to address this by adopting a reflexive approach and an explicit transparency in my reporting. Nonetheless I recognise that what I discuss in this article is itself a version of reality grounded in my own observations and assessment of what is significant. As such it is a story unique in time and place. To quote Cherryholmes (1993):

‘Research findings tell stories. Often, they are about putative causes and effects. Sometimes they are descriptive, sometimes explanatory. Research findings tell stories that are, more or less, insightful and useful in shaping what we think and do.’ (1993: 2)

In subsequent sections I offer a range of sociological and critical legal perspectives which challenge the ‘intrinsic rationality’ of the court and explore further through a small study to tease out issues and questions.



‘For centuries, law has been justified in philosophical terms: in terms of an intrinsic rationality. Law is rational, and because of that justified. In making this claim, philosophers have necessarily aligned law with the truth. In other words, they have justified law in terms of its foundation in some sort of supreme truth.’ (Ward, 2004: 1)

This ‘intrinsic rationality’ is embedded in the English legal system, and its rules and rituals are played out in a range of legal settings including courts. For Garlan (1941) the law is ‘considered… [to be the] chief symbol and the closest embodiment of the ideals of certainty, security and permanence…’ (1941: 3). However, this idealised position is implicitly and explicitly challenged by certain schools of thought.

Implicitly the social phenomenology of Schutz (1967) and sociology of knowledge of Berger and Luckman (1967) challenge the ‘objective’ character of society and its structures. They suggest that the crucial character of social reality is that it possesses an intrinsic meaning structure, created and maintained through the routine interpretive activities of individual actors. As such ‘reality’ is socially constructed, and:

‘Society is only ‘real’ and ‘objective’ in so far as its members define it as such and orientate themselves towards the reality so defined.’ (Carr and Kemmis 1993: 84)

Goffman, and the symbolic interactionist perspective more generally, suggest that all reality is socially determined and therefore contingent. Indeed while roles are learnt, they also can be in conflict and need not be consistent with a presented reality: ‘…while persons usually are what they appear to be such appearance could still have been managed’ (Goffman, 1990: 77).

Goffman was interested in the methods and techniques that individuals use to obtain and maintain a sense of self and how individuals perform their manifestation of self in face-to-face interaction. Goffman (1990) employs a ‘dramaturgical approach’ to identify human interaction as ‘performance’ which is socialised and shaped by the environment and the ‘audience’, and constructed to provide ‘impressions’ that support the goals of the actor. For Goffman, individuals are selective about the self portrayed on ‘stage’ as the impression made on others needs to be highly guarded so as to avoid destroying social order. Much or all of this presentation of self may be the product of group or team activity (as in a theatre), particularly when presented in an establishment, such as a court setting.

The use of a dramaturgical approach offers an insight into the way individuals interact, and how such behaviour is learnt and roles internalised through complex processes of primary and secondary socialisation. It also illustrates how roles can be in conflict and how the same behaviour can be perceived as acceptable or not in different social settings.

Goffman (1990) highlights the importance of ‘props’ in conveying a sense of self and in convincing the audience of their performance. Props can include clothes, gestures, posture, the words and dialect used, the things carried and the stories told about ourselves.

For Goffman, in a Western context performance becomes closely associated with ‘front’ or that ‘part of the individual’s performance which regularly functions in a general and fixed fashion to define the situation for those who observe the performance’ (Goffman, 1990: 32). For Goffman the front becomes the vehicle for standardisation, supporting a shared and understood representation by establishing the ‘setting’, ‘appearance’ and ‘manner’ for the role adopted by the individual. It may also establish a basis for social control as any role, and its characteristics, need to be communicated in ways which are socially sanctioned and acceptable to society. The basis of such acceptability may itself be ideological or structural.

From these perspectives emerges a sociological research interest in how the behaviours of actors in a court setting, and the presentation of truth and fact, are produced and reproduced recognising that actors have individual interests and motivations. As such the very facts on which judgments are made are themselves socially determined, ambiguous and contested. This research explores these issues in a specific context.

A more explicit challenge to the ‘intrinsic rationality’ of the law comes from legal realism and critical legal studies which suggest that the law is indeterminate, that it has uncertainties and cannot always be predictable (see for example Twining, 1973). Legal realists and critical legal studies suggest that the law is open to continuous interpretation and manipulation from a number of complex and competing perspectives including legal agents such as judges, barristers and solicitors, and external factors such as witness bias. It recognises the interrelationship between the law and the wider society within which it operates, including the requirement for the law to adapt as society changes. As such suggesting the law is not a stable system; rather one that is contested, fluid and socially determined.

Legal realism and critical legal studies oppose formalism and its view that judges should be able to apply the law literally to every case, with a strict adherence to the rule of law and little or no interpretation. Rather, legal realists ‘reject the view that law is a determinate body of doctrine or that precedents and statutes determine the outcome of legal disputes’ (Martin and Law, 2006: 311). In this context, Frank identified a source of indeterminacy in law as being the inability to predict the outcome of legal cases. Frank identified two groups of legal realists who were ‘skeptical of the role of legal rules as determinants of actual legal decisions’ (1987: 496): rule sceptics and fact sceptics. A source of legal indeterminacy for rule sceptics is located in the ambiguity of legal documentation. While fact sceptics argue that the main cause of legal uncertainty is not uncertainty with the rules but with the facts themselves.

The primary focus of the fact sceptics is on the trial courts where evidence is presented and where the presented reality can be misrepresented and misinterpreted. Indeed for fact sceptics the unpredictability of human agency makes it impossible to predict trial verdicts. Frank (1949) highlights certain human traits that make prediction impossible such as the racial, religious, political, gender or class-based prejudices of the trial judge or the jury. Further there are uncertainties with witness statements due to human error where what witnesses believe they saw or heard may not be consistent with other reported evidence. Witnesses may present their perception of the facts differently in court from previous witness statements given at the time of the alleged offence. Equally, witnesses may deliberately lie or falsify evidence for a particular purpose which is counter to a fair and just outcome. To quote Frank:

‘The chief obstacle to prophesying a trial-court decision is, then, the inability, thanks to these inscrutable factors, to foresee what a particular trial judge or jury will believe to be the facts.’ (1949, cited in Freeman, 2001: 829)Llewellyn (1973) also suggests that the formal and ritualistic approach to legal proceedings may alienate members of the general public and make the law incomprehensible. These factors have an impact on the way reality is presented in a legal context and can influence both the presentation of facts and self by witnesses and defendants, and the way in which decisions are made. From a Marxist perspective this can be presented as reflecting the operation of a class dynamic in the law, favouring those with economic power, education and social status and disadvantaging those in the social/economic underclass – those who are most frequently accused of criminal or deviant activity (Pines, 1993; Young, 1998). For Foucault, truth ‘is not outside of power’ but rather ‘is of this world’ (Foucault, 1980: 121). As such, truth is socially constructed, particularly by those who are powerful enough to make others believe it to be metaphysical.

From these theoretical perspective issues and questions arose which informed my choice of methods and the context in which the research was undertaken.



For this research I adopted an ethnographic approach, using observation and a range of sources and resources to provide field evidence. Effective ethnographic research enables the gathering of rich data (Berg, 1989: 120-159). Wolcott suggested that:

‘The underlying purpose of ethnographic research is to describe what the people in some particular place or status ordinarily do, and the meanings they ascribe to what they do…’ (1999: 68)

As such, this ethnographic approach begins with a situation to be studied, an object of attention (rather than a theory to be explored), and data is produced from which understandings and interpretations about particular social situations can be drawn. My selected research approach sought also to address the problem of establishing epistemic authority. It has concerned itself with the persuasiveness of research rather than its claims for truth. In this way the selected research method sought to be reflexive (scrutinising the epistemic privilege of the researcher) and to acknowledge that such research does not simply reflect reality, it constructs it. Given this, it has been important that ‘I-as-researcher’ is transparent about what I bring to the research setting, and that this transparency is evident in this report.

The fieldwork was undertaken between 30th July 2007 and 2nd August 2007 at an East Anglian Crown Court. The selected trial was on two counts of blackmail and one count of harassment. I was in the court building between 9.30am and 4.30pm each day. I undertook my observation in the court when the trial was being heard, and during times the court was not in session I was based in the judge’s chambers where I engaged in informal conversations with the judge and other court officials.

During my observation in the court I sat on the judge’s bench at the front of the court which provided me with the best view to observe proceedings (see appendix 1 – court layout). To be allowed to sit on the judge’s bench it was necessary to negotiate access. I arranged a prior meeting with the judge where I discussed my research project and was offered the opportunity to shadow him for the duration of the case. The judge therefore acted as a gatekeeper, providing access but also limiting this where he deemed appropriate. In practice I was granted wide-ranging access to case files and was in a position to observe the case fully within the court, both with the jury present and when issues of law were discussed in private. I was also able to discuss the case informally with court officials in backstage settings.

For this research I adopted the role of observer as participant (see for example Junker and Gold’s spectrum, cited in Hammersley and Atkinson, 1995: 104), immersing myself in the interactions occurring in the court setting and observing the associated action. On the judge’s bench I sat to his right, which meant that I was closer to the witness box and avoided obstructing the judge’s view of the public gallery. This position meant that I was part of the proceedings: a participant, albeit a silent one.

I observed a single four-day case which provided an adequate richness of data for analysis. This case was representative of other similar cases although the action observed was unique and the analysis of it does not support generalisation. Although I witnessed the outcome of the case this was not significant in this context. In court I used a notepad and pen to capture observations as they happened. Being able to write field notes while in court also allowed time to record sections of dialogue that offered insight and could later be quoted.

I also kept a field diary throughout the research project where I developed the field notes made in court, documented developments in the case and changes in my thoughts on the research. This enabled me to go back at the time of writing up the research and be able to more closely recall and identify what happened when and where. These field notes were of key importance as they were my interpretations of what had gone on in court and were the basis for developing my findings. While these are a rich source of data I am aware that my reliance on them is a limiting factor, as the choice of which matter omit at this stage is as much an analytical choice as which to include. What is left out may be as important as that which is included. The inference not made or the contribution bypassed or ignored may be as, or more, important than the final text submitted. This tension between reductionism and complexity means that all views are partial, and all are problematic.

Acknowledging this, I adopted a self-critical and reflexive approach to the research process which sought to make transparent any personally introduced bias. Indeed before going into court I read the case information which incorporated all police interviews, photographs, previous convictions of the defendant and court notes on pre-trial information and court procedures. I took account of the potential bias this insider information might give me but felt it useful as it allowed me to focus on the reactions, body language and demeanour of the interactions in court rather than having to understand the details of the case in situ.

My research was undertaken with the full knowledge of court officials but without the informed consent of all others in the court. I acknowledge that this may raise an issue of ethics and that it removes the potential of witnesses and the defendant acting as collaborators in the research process. However courts of law are an open public domain in which transparency is valued. As such the absence of fully informed consent is acceptable if associated with actions to ensure anonymity. For this research I have sought to maintain anonymity by avoiding the use of place names or the names of actors in my reporting.

From this research and the critical literature a number of themes emerged. Combined, they problematise the notion that the legal process can elicit a single, objective truth. Rather the process brings together a range of perspectives from which decisions are made. In this sense the reality presented is socially determined and contested.



The court is a social setting which is bound by rules, rituals and traditions; it is also a public arena which can influence behaviour and the presentation of reality.

Building on Goffman’s (1990) analysis, my field notes suggest that the presiding judge plays a key role in maintaining the pace and process of the trial, in interpreting evidence, in adjudicating on disagreements on law and process and in summarising evidence to the jury. The judge is in role and costume throughout the trial and is treated with titular respect by barristers, court officials, witnesses, the defendant and jury members. This creates an aura of authority which can intimidate and influence the way evidence is presented. For example, in this exchange the judge elicits uncertainty and a changed reality from the witness:


Judge: “So was he (witness One) at the barbecue?”

Witness Seven: “No.”

Judge: “So to help the jury you can confirm that he was not there?”

Witness Seven: [Looks nervous] “I am not sure.”

Judge: “Do you mean he was there?”

Witness Seven: “He might have been.”

Judge: “But you don’t know?”

Witness Seven: “No.”

(Field Notes Wednesday 1st August 2007)


Influence can also come from those in the public gallery or others sitting in the court. On Day One a family member of the defendant was sitting in the public gallery staring intently at the jury. My field notes suggest that some jury members seemed agitated by this man’s presence and tried to avoid looking at him by turning to look away or by making notes. Some jurors appeared anxious as the staring continued and were not fully listening to proceedings (Field Notes Monday 30th July 2007).

On Day Two the press box was occupied. The journalist entered the court while it was in session, holding a local newspaper and notepad, and sat in the press box. Jurors noticed her making notes and some started to make notes themselves, seemingly copying her behaviour. During her time in the court some jurors appeared to be more engaged with the case, listening intensely and visibly acknowledging points in ways that did not appear to occur when the journalist was not in court (Field Notes Tuesday 31st July 2007).

Also on Day Two, while the prosecution barrister was questioning Witness Four some of the jury members became distracted by the defence barrister who appeared disinterested. While he seemed to be listening to the questioning he was also slouched in his chair with his head leaning to the side being supported by his hand, and later picking his nails. This appeared to be a form of performance communicating a sense of disbelief at the evidence, an impression seemingly understood by some jury members (Field Notes Tuesday 31st July 2007).

Earlier that day an application of bad character was made by the prosecution council on grounds that the defendant had previous convictions of battery and assault that were relevant to the current trial. This application was contested by the defence and in particular the defendant who showed signs of anger and agitation while both sides of the application where being heard. While the prosecution barrister put his case for the inclusion of the defendant’s previous convictions, the defendant scowled and shook his head while staring intently towards the barrister. When the prosecution barrister argued that the defendant’s previous offences were related to the current trial the defendant became very agitated, suddenly springing to the floor and asking to speak to his solicitor. During this period the defendant was demonstrating aggressive behaviour that was not seen through the rest of the trial – behaviour not witnessed by the jury, who had been instructed to leave the court while this issue of law was being debated.

After much discussion about the prejudicial affect of inclusion, the judge allowed the defendant’s previous convictions into the case as evidence. Through this process the jury became aware of information that they would otherwise not have known and not have taken into account. As such the presentation of an alternative reality was managed through the legal process.

Combined these examples of behavioural change question the intrinsic rationality of the legal process, suggesting rather that specific and tangible factors can inform and determine the version of reality presented.



While questioning witnesses, the barristers used a variety of styles of questioning to elicit answers that more closely aligned to the version of reality they were seeking to portray. Specific styles of questioning elicited various reactions from the witnesses and appeared to influence both what they said and the certainty with which it was said.

During questioning, Witness One was asked several times by barristers and the judge about the date he was evicted from the flat he rented from the defendant. As illustrated below during questioning the witness changed his answer, and in turn the facts of the case:


1st time, asked by prosecution barrister:

Witness One: “August to September.”


2nd time, asked by prosecution barrister:

Witness One: “End of August or September.”


3rd time, asked by prosecution barrister:

Witness One: “End of summer, so it was September.”

Prosecution barrister: “So you think it was September”

Witness One: “Yes.”


(The prosecution barrister asked this question a number of times to Witness One while questioning him on the incident; the barrister appeared to be trying to establish some consistency with the witness’s statement).


4th time: the defence barrister stated that in Witness One’s police statement he had said he had lived in the flat between March and November, and was therefore evicted in November.

Witness One: “Summer time is August, September, October, and November.”


5th time, asked by defence barrister:

Witness One: “Towards the end of the year September, October, November.”


6th time: Witness One was asked to reiterate what he had said for the judge, and also to make sure that the jury heard.

Witness One reiterated he was evicted “Towards the end of the year September, October, November.”

(Field Notes Monday 30th July 2007)


Witness One explained to the court he had said in his police statement that he was evicted from the flat in November because he could not remember the exact date and the police were asking for a date and November was his best estimate of when the incident had occurred. This is an example of how perceptions change through the course of questioning and highlights how the witness became flustered and anxious, problematising what he had earlier said and calling into doubt his reliability (a point subsequently made by the defence barrister in summing up).

Questioning can also be used to prompt an answer that the prosecution or defence council want in order to present their version of the facts:


Prosecution barrister: “When did he come?”

Witness One: “I’m sorry I’m not sure of the date.”

Prosecution barrister: “I can tell you it was the 14th December. Does this ring a bell?”

Witness One: “Yes it does.”

(Field Notes Monday 30th July 2007)


During the questioning of Witness Four on Day Two, the defence barrister used tactics to slow the pace of his questioning by pausing for drinks and to write notes. These pauses seemed to be used to allow time for the judge and jury to write notes, but also allowed an opportunity for the barrister to establish the correct phrasing of his questions and to relax the witness. In contrast to the slow-paced, friendly conversational tone of the defence barrister, the prosecution’s questions sought to generate an emotional response from the witness. The prosecution barrister adopted a strong and accusational tone and ended many of his questions with: “That’s right isn’t it?”, “Don’t you?”, “Didn’t you?”, “It was wasn’t it?”. (Field Notes 30th July – 2nd August). For example:


Prosecution barrister: “You are a man that when it suits you, you resort to violence, yes?”

Witness Four: “No.”

[Witness looked at the floor and tapped his feet]

Prosecution barrister: “When somebody owes you money…and they are messing you about…I suggest you also resorted to violence.”

Witness Four: “No.”

[Prosecution barrister slows the questioning down by writing in his notepad]

Prosecution barrister: “You beat him, that’s true isn’t it?”

Witness Four: “No.”

(Field Notes Tuesday 31st July 2007)


While sometimes the prosecution barrister slowed his questioning down, he also had sections of quick-fire questioning between himself and the witness, seemingly to evoke a telling response or error.


Witness Four: “I’m a door supervisor.”

Prosecution barrister: “You’re a bouncer with qualifications.”

Witness Four: “I’m a door supervisor.”

Prosecution barrister: “When people get out of control you chuck them out.”

Witness Four: “Ask them to leave.”

Prosecution barrister: “Chuck them out.”

Witness Four: “Ask them to leave without physical force.”

(Field Notes Tuesday 31st July 2007)


Here Witness Four is not backing down to the accusation, unlike Witness One in the earlier exchange. During the exchange with Witness Four the jury reacted by smirking, suggesting that they did not believe what the witness was saying. During this time the defence solicitor observed the jury’s reaction to the questioning so assessing their reaction to the defendant and the defence case.

Collectively these are examples of how reality is established, examined and redefined in a court context. The questioning of witnesses also highlights a problem with court trials in that they are reliant on recollection and memory, resulting in witnesses heightening the significance of certain events, forgetting others, confusing or muddling behaviours and dates, and having difficulty with estimating length of time and distance. As such the presented reality is a fragmented and challenged set of stories, informed by context and personal gain and intention. The stories themselves are socially constructed, as much informed by the legal process as elicited from it.



The summing-up of court cases is an example of how reality is interpreted and reinterpreted by the prosecution, the defence barristers and the judge, who aim to mediate and challenge the witnesses’ presentation of the ‘truth’.

During his summing-up, the prosecution barrister asked that the jurors should “See whether they [the witnesses] are truthful”, making the jury question whether the evidence they heard was trustworthy and reliable and whether the witnesses themselves “came across as truthful to you” (Field Notes Wednesday 1st August 2007).

While summing up, the defence barrister used his interpretation of the demeanour of the defendant (Witness Four) and the complainant (Witness One) during questioning to raise suspicion about the reliability of their evidence. The defence barrister stated that “Witness One was thinking on his feet” when trying to answer the defence barrister’s questions. Whereas his client’s (the defendant) “response to challenging questions in contrast were short, sharp and to the point” (Field Notes Wednesday 1st August 2007).

Reflecting Goffmans’ (1990) analysis, the issue of perceived character emerged during the judge’s summing up as he explicitly asked the jury to “make your judgements about their demeanour…against the evidence” (Field Notes Thursday 2nd August 2007), as such using the way in which the witnesses presented themselves and their evidence as a proxy for them being the truth.



This research has problematised the assumption that the adversarial nature of the English legal system can establish an absolute truth on which decisions regarding guilt and innocence can be determined. The evidence suggests that reality as presented in court is socially determined and informed by a range of structural and ideological factors and individual and collective motivations. Building on the work of Schutz (1967), Berger and Luckman (1967) and Goffman (1990) the court can be seen as a social setting which is bound by rules, rituals and traditions, a public arena in which versions of reality are played out. This challenges the notion of an intrinsic rationality inherent in the legal process, problematising its role in determining the ‘truth’ of claims.

However, the outcomes of this research are limited and cannot be generalised. This realisation about the limits and constraints of research endeavour has been an important outcome of the research process and suggests that there are always things that might have been done differently in retrospect and that opportunities might have been more effectively and profitably explored. Nonetheless even this brief immersion in the legal process has demonstrated the complex ways in which particular versions of events are constructed and the potential motivations for these.

Four areas for future research have emerged from this study. The first relates to the extension of this work to include comparative analysis across a range of different court contexts. Another relates to the extending of Goffman’s dramaturgical approach to include the distinction between front and backstage interactions, particularly between court officials. A third would employ discourse analysis to explore the use of everyday language in a court context. Finally, it would be interesting to adopt a more collaborative approach by seeking to interview witnesses to elicit their individual perspectives on the court experience and how their perceptions of reality were shaped by the experience or the earlier preparation for the court case.





Court Room Layout

Appendix 1: court room layout

[Full-size version]




[1] Rebecca Funnell is currently in her final year of a BA Sociology Degree at Warwick University. In September she will begin the Graduate Diploma in Law, a postgraduate course at the College of Law in London.




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