Whose Trial? Comments on "A Theory of the Trial"

American Bar Foundation

Whose Trial? Comments on "A Theory of the Trial"Author(s): Lindsay FarmerSource: Law & Social Inquiry, Vol. 28, No. 2 (Spring, 2003), pp. 547-552Published by: Wiley on behalf of the American Bar FoundationStable URL: http://www.jstor.org/stable/1215782 .

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Whose Trial? Comments on A Theory of the Trial

Lindsay Farmer

Robert Bums has written an important book on an institution that, while central to systems of criminal and civil justice, has been curiously neglected by academic lawyers. Some reasons for this neglect are addressed in an oblique fashion in his book, for they are linked to what he has de- scribed as the "Received View" of the trial. In this view, the trial is a formal process of fact finding and law application, where roles and responsibilities of judge, counsel, and jury are laid down according to a predetermined understanding of the rule of law. Since the trial is viewed merely as a mechanism for law application, academic lawyers have, by and large, preferred to focus on the appellate decisions that are seen as shaping the substance of the law. However, there are other reasons for this neglect, and they are linked to more recent trends in the academic study of the law. The sociological study of civil and criminal justice has been concerned with processes of plea bargaining and settlement, and with other means of diverting cases from the formal institutions of law, in seeking to argue that in practice the trial is not central to the operation of law. And while the critical legal studies movement has criticized the formalism and abstraction of legal scholarship, it has not sought to anchor the study of law in the concrete practices of legal institutions such as the trial, but instead in the social and political forces that shape law making-a position that has largely accepted the for- malist account of the trial as a forum of rule application. We thus have two significant schools, one pulling toward the abstraction of rules from the context of their application, the other pulling towards the context in which rules are used or created, and the trial has been left somewhere in the middle.

Lindsay Farmer is professor of law, University of Glasgow, U.K. I am grateful to Bob Burns for his comments on an earlier draft, and to Marianne Constable for inviting me to contribute.

? 2003 American Bar Foundation. 0897-6546/03/2802-547$01 .00 547



548 LAW AND SOCIAL INQUIRY

In spite of this neglect, the trial exerts a tremendous pull over the popular imagination. This is readily seen in the high levels of media interest in trials, in the celebrity lawyers, in the success of courtroom dramas on television or at the movies, and in other fictionalized accounts of the trial and punishment of crime. It can also be seen, in my experience, in the desire of law students to hear about trials, to leam how, as they imagine it, the law really works. It does not matter how often they are told that the trial is atypical, that very few lawyers appear in court, and that for those who do, the bulk of court work is routine and bureaucratic. For these students, as I suspect for a large part of the population, the work of the law is associated with the trial. This raises a number of questions, both sociological and normative, about the place of the trial in legal and popular culture, and it is this broad issue of the legal, political, and cultural symbolism of the trial that I propose to address in these remarks. What follows, then, is not offered as explicit criticism of Bums's project, but is a response to some of the broader questions that his work has raised.

One of the most powerful claims that Bums makes throughout the book is that the ethical and moral significance of the trial is not to be seen ex- clusively in rule-of-law values that are in some sense external to the trial. Instead, its significance is also deeply embedded in the practices and procedures of the institution and in the attitudes of the participants towards it. His account accordingly provides a detailed examination of how a case is constructed; of procedural, evidential, and ethical rules; and ultimately, of the place of the trial in a network of social and political institutions- gradually moving outward from the particular to make more general claims about the significance of the institution. He thus bases much of his argument on the importance of "situated ideals" (see, e.g., 1999, 33), the "thick" de- scription of the techniques and purposes of actors and procedures. The first question here, then, concerns the relevance of his particular situation. Read- ing the book as a British lawyer, the question for me is how much this is a general theory of the adversarial trial, and how much a theory of the trial in the United States?

This question is, in part, prompted by an awareness of differences in procedure and rules of evidence. Would the trial be more effective if the judge were able to sum up after the concluding arguments of counsel, as happens in England and Wales (Pizzi 1999, chap.7)? What difference would it make for the argument if counsel, as is the case under Scottish criminal procedure, were not permitted to make an opening statement? Is trial by jury any more or less a trial by one's peers if the right to peremptory challenge is limited, as it is in the United Kingdom? Broadening this point to include a historical as well as a jurisdictional comparison, it is worth pointing out that many of the features that Bums identifies as anomalies under the Re- ceived View and reinterprets as "situated ideals"-the insulation of the jury, judicial passivity, an exclusionary law of evidence-may be seen as nothing



Whose Trial? 549

more than historical anomalies (Langbein 1983; Cairns 1998), and critics of criminal procedure from Bentham to the present day have argued for their reform or abolition. The point here is not to suggest that U.S. criminal procedure should be altered to incorporate these, or any other, practices, nor that the view of the reformers should necessarily be preferred over that of the defenders of the trial. It is rather that to an outside observer, Bums's defense of the practices of the adversarial trial has little to say about the apparent contingency of such practices. While we cannot draw any conclu- sion from the survival or longevity of a particular practice, an appreciation of the historical context of that practice or institution might be considered central to the sort of reflexive understanding of the trial that Bums advo- cates. To make the point slightly differently, it requires us to ask why the theory should be based on this trial, at this particular point in time.

Burns's likely response to this would be that the trial must be seen as being deeply embedded in a network of practices and in a particular legal culture (1999, chap. 5). Accordingly, if there are different practices under English or Scottish procedure, these cannot be seen in isolation from the other practices that make up the trial in those places. And if certain bodies of rules or practices have survived, we should not seek their reform without understanding their significance to the institution. While this is an important point, we might take it a little further to consider the cultural significance of the trial in the United States, for this kind of approach invites speculation as to the relation between the trial and the legal culture.

One starting point for doing this might be a consideration of the chang- ing function of the criminal trial. Lawrence Friedman has drawn attention to a fundamental alteration in the function of the criminal trial in the course of the nineteenth century: "In the colonies, trials were more sermons than dramas-the results were, in the main, foreordained. The nineteenth- century trial was both a sermon and a drama: a drama, moreover, of suspense" (1999, 77). The function of the trial has changed, in other words, from being primarily a ritual of public condemnation to its modem function of discovering the truth.1 With this, the cultural significance of the trial also changed, for as the quote from Friedman suggests, the uncertainty of the outcome unleashed the dramatic potential of the trial. This was in part internal to the adversarial process. Lawyers became increasingly confrontational in the use of the resources available to protect their clients. Cross-examination became more systematic. More determined efforts were made to exclude unfavorable or improperly obtained evidence, and every effort was made to persuade or influence juries. The modem trial is longer, more complex (as a result of the multiplication and refinement of procedural

1. It is worth noting in passing that Bums says little or nothing about the trial as a form or ritual of public condemnation, nor about the sentencing phase of the trial, preferring to focus on the characteristically modem function of determining the truth.




and evidential rules), and more legalistic than its predecessors, but it is also oriented toward the minute reconstruction of the pattern of events around the commission of a crime. The jurors are no longer solely the symbolic representatives of the community, attending to see that justice is done. Their primary role now is that of deciding between competing accounts of prosecu- tion and defense, set out in ever more elaborate detail-and the drama and suspense derive from the need to attend on, and convince, the jury.

However, external forces were also at work in enhancing the dramatic potential of the criminal trial. The development of professional police forces made the detection of crime more systematic, and an increasingly sophisti- cated forensic science brought a new kind of lurid fascination to criminal proceedings. The press, and especially the "yellow" press of the late nineteenth century, recognized and developed a public interest in crime and legal proceedings. Media accounts played down the tedium and legal minutiae of the proceedings, in favor of the moments of drama and tension and the personalities of the participants, making celebrities of criminals and defense lawyers along the way. The media were less concerned with reporting on the careful building of a case than the unexpected revelation of a witness, the winning or losing of the battle, and the conflict and human interest in the law. In certain high-profile cases, the battle has come to be fought not only in the courtroom, but also in the media. The media, and especially television cameras, have entered the courtroom, a development that inevita- bly affects the conduct of the participants. The trial has been made into a spectacle (Sherwin 2000), reduced to certain moments or images, and ex- pected to entertain.

Whatever one's views about this development, it is a process that has fundamentally altered the way most people experience the criminal trial. There is a new kind of participation in the process, as observers or audience judge the reported performance of the participants and make their own decisions on the proper verdict. We all have an opinion about the guilt of 0. J. Simpson, and about the lawyers' conduct of the case, though few of us have bothered to follow the evidence or argument. The truth of the verdict (Bums 1999, chap. 8) can scarcely be contained within, or reduced to, the legal process. This, then, is a paradoxical process, for while it has en- hanced public awareness of trials, it also increasingly removes the public from the direct kind of experience of the trial that Bums describes and de- fends. Or, to make this point in a cruder fashion, to mount a defense of the trial in the age of 0. J. Simpson, without considering the media construc- tions and use of trials, or the popular perceptions of win-at-all-cost lawyers, seems to leave something out of the story. Is it possible, indeed, to conceive of the trial along the lines that Bums sets out, in the age in which we live?

Bums defense of the trial rests on the understanding of the trial as a fundamentally political institution. This characterization is twofold. First, trials are imbued with a general sense of civility, or membership of a certain



Whose Trial? 551

kind of community. Here, Bums asserts a Fullerian sense of the central role the trial has in the enterprise of subjecting oneself to the governance of rules-one that relies to a very great extent on the commitment, honesty, and ethical attitude of the participants (Fuller 1969, 145). This is the more normative or prescriptive sense in which Bums describes the trial. There is also, however, his more descriptive assertion (drawing on the formulation of de Tocqueville, repeated on pages 77, 153, 173-74) that the trial is a political institution, in the sense that it is a means by which the community, in the form of the jury, can hold the state or public authority to account. This balancing between state and individual is traced through a number of features of the trial, from the formal evidential and procedural rules to the role and function of the jury. This is a formulation that I find, once again, to be both striking and somewhat puzzling. It is not, of course, difficult to conceive of the trial as a political institution in the broad sense that must apply to any kind of public institution. However, in the United Kingdom at least, it would be harder to argue that the criminal trial is thought of as a political institution in the second, descriptive, sense used by Bums. While the criminal trial was a major forum of the fight for political liberty in the eighteenth century, criminal trials have subsequently come to be seen as concerned largely with the management of crime or the suppression of vice. And the claim that the jury is "the lamp that shows that freedom lives" (Lord Devlin, quoted in Bums 1999, 153), rings somewhat hollow when confronted with the panoply of other devices available to the state to man- age delinquents and ensure that their cases need not come to trial. Jury service is seen as a burden to be avoided, rather than welcomed as a form of political participation. The point I wish to make here is that the sense in which de Tocqueville and Bums describe the trial as a political institution seems, in a British context at least, to more accurately characterize a set of institutions of early modem states than the late modem bureaucratic- administrative state.

Of course, it may be that the picture is somewhat different in the United States, where conflicts over political resources and values are more regularly fought out in the courts. Yet even if we allow that there is a stronger sense in which the trial continues to be a political forum in the United States, it is worth considering the contemporary function and culture of law that this produces. Kagan (2001) has analyzed the political functions of the courts in the United States, describing a system of "adversarial legalism" that is decentralized and nonhierarchical in which access to law is relatively easy, and where there is consequently a relatively high incidence of trials. At the same time, however, he argues that the high cost and uncertainty of the system make the courtroom a poor mechanism for either dispute reso- lution or policy implementation. The trial, in other words, is analyzed by Kagan as a contemporary political institution and found wanting because of the pressures of bureaucracy, policy, media, and money. Would a contem-




porary de Tocqueville, an outside observer of trials and courts in the United States, have quite the same understanding of the trial as a political institution?

The question is rhetorical, and in posing it I wish merely to underline the suggestion made earlier that a broader comparative and historical understanding of the trial might alter our reflexive and normative understanding. That this aspect of the argument might be developed is scarcely a criticism of Bums, for the book is already broad in scope, and full of perceptive analy- sis. It does, however, suggest new directions in which the study of the trial might be taken. In concluding in this vein, I cannot resist the quotation of a famous passage, a passage that could indeed be considered a form of auto- poetry given the author's name:

0 wad some Power the giftie gie us To see oursels as ithers see us!2

REFERENCES

Bums, Robert. 1999. A Theory of the Trial. Princeton, N.J.: Princeton University Press. Caims, David J. A. 1998. Advocacy and the Making of the Adversarial Criminal Trial 1800-

1865. Oxford, England: Oxford University Press. Friedman, Lawrence M. 1999. On Stage: Some Historical Notes About Criminal Justice.

In Social Science, Social Policy, and the Law, ed. P. Ewick, Robert A. Kagan, and A. Sarat. New York: Russell Sage Foundation.

Fuller, Lon L. 1969. The Morality of Law. Rev. ed. New Haven, Conn.: Yale University Press.

Langbein, John H. 1983. Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources. University of Chicago Law Review 50:1-136.

Kagan, Robert A. 2001. Adversarial Legalism: The American Way of Law. Cambridge, Mass.: Harvard University Press.

Pizzi, William T. 1999. Trials without Truth: Why Our System of Criminal Trials Has Become an Expensive Failure and What We Need To Do To Rebuild It. New York: New York University Press.

Sherwin, Richard. 2000. When Law Goes Pop: The Vanishing Line between Law and Popular Culture. Chicago: University of Chicago Press.

2. In an unfortunate slip, the systems theory of Niklas Luhmann is referred to in Bums's book as autopoetic theory (e.g., 1999, 201, 243), rather than the proper autopoietic theory. The quotation is from Robert Burns, "To a Louse."



Whose Trial? Comments on "A Theory of the Trial"

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