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A Theory of the Trial

A Theory of the Trial

Robert P. Burns
Copyright Date: 1999
Pages: 280
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  • Book Info
    A Theory of the Trial
    Book Description:

    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.

    eISBN: 978-1-4008-2337-6
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-2)
  4. Introduction
    (pp. 3-9)

    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...

  5. I The Received View of the Trial
    (pp. 10-33)

    What is a trial? The simplicity of the question is deceptive. Since Socrates began posing such “What is . . .” questions about human practices, we have learned that these apparently straightforward factual questions quickly open out into an ideal realm whose limits are always indeterminate. We do not reallyunderstandwhat a trial is unless we understand the interrelation between what we may only provisionally call “what a trial is” and “what a trial can aspire to be.” For us, “factual” questions become practical questions, such as, “How should we shape our public life?”

    I begin by describing, in...

  6. II The Trial’s Linguistic Practices
    (pp. 34-72)

    One of the fixed points of the social scientific study of the trial is that the juror makes his or her decision after an intense encounter with the evidence, and it is the evidence in the case, more than any other factor, that determines the outcome.³ The juror performs his or her task only after this highly structured language-centered event: the trial itself. The trial is usually over immediately after this encounter, since jury deliberation “changes” the result in fewer than one in ten cases. The initial majority almost always prevails.⁴ Before we focus in greater detail on thekinds...

  7. III The Trial’s Constitutive Rules
    (pp. 73-102)

    The rules of the trial are Plato’s revenge on the rhetoricians. The great sophists who inhabit the dialogues fully understand that in an organized society rhetorical technique can be the most powerful device for the assertion of pure will, utterly indifferent to the common good, indifferent to the truth, indifferent to what we would call moral judgment. Rhetoric as Plato knew it “was a weapon, intended to influence people before the tribunal, in public assembly . . . a weapon called upon to gain victory in battles where the decision hung on the spoken word.”² It had “savage roots,” and...

  8. IV An Interpretation from One Trial
    (pp. 103-123)

    The trial makes possible different levels of normative judgment. Some are closely connected to factual accuracy, though not in the way that the Received View suggests. Other levels of judgment recognize that the trial is a public event, and that its task is not only to do justice but to preserve the conditions for the doing of justice. Thus the key task in most trials is to identify what is mostimportantabout the case and thus to determine what form of social ordering is appropriate, both of which require “metalevel” judgments.

    I want now to show somewhat more concretely...

  9. V The Trial’s Most Basic Features and Some Observed Consequences
    (pp. 124-154)

    We have seen that the Received View is beset with anomalies which cast doubt on its understanding of the trial. I have reviewed the practices and constitutive rules that make the trial what it is. I have interpreted a relatively simple trial performance and found it to put into play levels of questions well beyond the “issues of fact” envisioned by the Received View. In this chapter, I begin the task of constructing a more adequate understanding of the contemporary trial, one that both is more accurate and can hold its ground normatively. I begin in a phenomenological or descriptive...

  10. VI Thinking What We Do
    (pp. 155-182)

    I began by recounting the Received View of the trial, an understanding with deep roots in our allegiance to the Rule of Law and one that seems to explain some of the most striking and distinctive features of the actual conduct of American trials. We saw that even the trial’s legal infrastructure, where we ought to see a high level of consistency with the Received View, presented significant anomalies. This led us to a more searching description of the actual linguistic practices that constitute the trial, largely written from the perspective of the lawyers who perform those practices. I then...

  11. VII The Two Sides of the Trial Event
    (pp. 183-219)

    We are beginning to see that trial languages and practices reflect the multiplicity of normative spheres. I suggest throughout the rest of this book that, for precisely this reason, the trial has evolved into an institution peculiarly appropriate for the conditions of modern life: to varying degrees, modern trials “are emblems of the simultaneous creation of justice and of the enabling conventions of justice” and are thus a response to the modernist predicament of our needing our conventions while simultaneously knowing that we have created them and can criticize them.¹ The trial is the “law’s self-criticism” specifically because the elements...

  12. VIII The Truth of Verdicts
    (pp. 220-244)

    The sense in which a verdict can be said to be correct under the Received View seems relatively straightforward:¹ a verdict will be correct if it is based on accurate fact-finding followed by legal categorization that respects the meanings of the key terms in the instructions. From that perspective, it is difficult even to think of a verdict as “true.”² “Justified” or perhaps “correct,” but never quite “true.” I have proposed another understanding of what, concretely, the trial has become for us that I argue is fair to the different sources of evidence, and have invoked “the mutual support of...

  13. Index
    (pp. 245-247)