Academic journal article St. John's Law Review

Idealized Images of Science in Law: The Expert Witness in Trial Movies

Academic journal article St. John's Law Review

Idealized Images of Science in Law: The Expert Witness in Trial Movies

Article excerpt

I. APOLOGIA: LAW AND FILM

It is too early to say whether the law-and-cinema discourse will. . . succeed in creating modes of analysis that are capable of withstanding conceptual, empirical, and ethical critique. Ornamenting our jurisprudential analysis with a reference to such or such a film or attaching an analysis of a film to a legal or moral statement of one type or another are liable to ultimately be but a transient fashion. Yet the conclusion that the discourse of law and cinema is doomed to be just á fad is equally hasty.1

Scholarly reflection on the portrayal of lawyers and legal processes in film is a growing practice. As to its status as a subdiscipline of law, it may be identified as Law and Film Studies ("there has been an explosion of study linking law and film from the late 1980s"2), as part of the law and literature movement3 (as in "filmic literature"), as a primary focus of Law and Popular Culture Studies,4 or as existing-as do all of the foregoing-under the umbrella of Law, Culture, and the Humanities (as that sub-discipline is represented by the Association for the Study of Law, Culture, and the Humanities).5 The purposes of such reflection are varied,6 and include a sense that those in the discipline of law should pay attention to popular culture.7 There is general agreement that the images of law and lawyers in popular fiction and cinema reflect how people view and understand legal processes, although there is less agreement that such images create new views and understandings.8 In any event, we arguably should know how the general public feels about law because its members are potential clients or jurors with whom we will need to communicate, or potential law students and lawyers who need to have a realistic vision of the profession, both when deciding whether to study law, or after they enter law school.

It is also evident that films about law and lawyers can sometimes be used as effective teaching tools in law schools, whether to illustrate good or bad trial advocacy skills,9 to serve as hypotheticals for legal education ethics training,10 or to reflect on justice and fairness in contemporary or past society (including issues of gender, race, and power).11 However, some argue that "to confine the use of film within teaching to the merely pedagogic would be a tragic waste of its full potential."12 We should also be interested in how the portrayal of "internal legal culture . . . affects the external legal culture,"13 including the " Terry Mason' effect" (jurors expect confessions of guilt during a criminal trial), the " 'People's Court' phenomenon" (jurors find witnesses credible if judges do not shout skepticism), and the " 'CSI' phenomenon" (jurors expect highly conclusive science in every criminal case).14 Films also may offer insights as to "how law operates in the larger culture."15 Even when lawyers sometimes find the representations of law and lawyers in film unrealistic, the films "tend to be taken as credible representations of... reality"16 and therefore create a context with limitations and possibilities for law in society. Finally, popular cinema can be seen as a jurisprudential activity, offering insights into contemporary legal philosophy and revealing a "jurisprudence of popular culture."17

On the other hand, some doubt that popular fiction, which clearly could include popular cinema in the age of electronic mass media, is useful for "the permanent and fundamental issues of law that we call jurisprudence."18 Judge Posner concedes that "we may be able to learn something about the popular understanding of law from popular fiction about law," but he only looks to classic works of literature-"the body of writings that are somehow able to speak to people living under other skies, in other times, from those of the author and his original audience"-for insights about "law at the jurisprudential level."19 And even as to great works of literature, Posner doubts that most novels about law are interesting in any "way that a lawyer might be able to elucidate":

If I want to know about the system of chancery in nineteenthcentury England I do not go to Bleak House. …

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