A Theory of the Trial

A Theory of the Trial

A Theory of the Trial

A Theory of the Trial

Synopsis

Anyone who has sat on a jury or followed a high-profile trial on television usually comes to the realization that a trial, particularly a criminal trial, is really a performance. Verdicts seem determined as much by which lawyer can best connect with the hearts and minds of the jurors as by what the evidence might suggest. In this celebration of the American trial as a great cultural achievement, Robert Burns, a trial lawyer and a trained philosopher, explores how these legal proceedings bring about justice. The trial, he reminds us, is not confined to the impartial application of legal rules to factual findings. Burns depicts the trial as an institution employing its own language and styles of performance that elevate the understanding of decision-makers, bringing them in contact with moral sources beyond the limits of law.Burns explores the rich narrative structure of the trial, beginning with the lawyers' opening statements, which establish opposing moral frameworks in which to interpret the evidence. In the succession of witnesses, stories compete and are held in tension. At some point during the performance, a sense of the right thing to do arises among the jurors. How this happens is at the core of Burns's investigation, which draws on careful descriptions of what trial lawyers do, the rules governing their actions, interpretations of actual trial material, social science findings, and a broad philosophical and political appreciation of the trial as a unique vehicle of American self-government.

Excerpt

This book grew out of a long attempt to understand an epiphany, one I have experienced and that seems often to occur in American trial courts. in the course of trial there emerges an understanding of the people and events being tried that has a kind of austere clarity and power. This experience surprises and “elevates” the participants, including the jury. the grasp of what has occurred and what should be done seems to have a kind of comprehensiveness, almost self-evidence, of which it is extremely difficult to give an account. It involves factual and normative determinations of very different kinds. the evidence and legal doctrine do not together determine the result in any logical sense, there is considerable freedom at play, yet the best course is apparent. the certainty that emerges is often less about the accurate representation of a past event—what I will call a “screenplay”—than it is a kind of knowledge of what to do. Judgment as it occurs at trial is a kind of skillful performance of a particularly complex kind. and those in a position to know seem almost universally to agree that the level of performance, day in and day out, is very skillful indeed.

The key to understanding this high level of achievement is the trial itself, a “consciously structured hybrid of languages” and performances, to which relatively little attention has been paid. This study is that fides quaerens intellectum, an account of the felt certainty that emerges in the course of the trial. Along the way, I rely on many different sources, but primary among them is a careful and detailed examination of the linguistic practices and performances that the trial comprises. My aim is to see how they come together to achieve the minor miracle of a convergence on and display of the practical truth of a human situation. Along the way, too, I summarize the evidence that it does indeed happen.

This is something quite different from an empirical study of jury “behavior,” important as such studies have been. As I explain in chapter 5, jury studies are of very different sorts. Some involve the search for independent variables extrinsic to the trial itself—race or class, for example— that explain and predict jury determinations, through the mediation of empirical generalizations or “covering laws.” Others, usually in the cognitivist tradition, focus on factors intrinsic to the trial, concluding that “the evidence” is the most important determinant of jury behavior, but inevitably describe that “behavior” as the “response” to the trial as the “stimulus event.” Both sorts of studies seek to achieve causal explanation, or at least correlations with some predictive power. Though the empirical investiga-

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