Thursday, May 26, 2005

Trial as Theater

Show trials were once something to be ashamed of. But "trial as theater" -- trial as "storytelling" -- well, that's different!?! Well, yes. But in some ways nonetheless worrisome. See the mawkish video clip at "Tom Kline on Trial as Theatre." The performer (Kline, apparently) is effective in a way. But I wonder: Do such mawkish performances really work in the courtroom? I confess: I am skeptical.

N.B. I do not mean to deny that rhetoric (of a kind) plays a legitimate role in promoting accurate fact finding in trials. The necessary role of rhetoric for this purpose is hard to deny if one concedes, assumes, or believes that judgments about factual questions necessarily depend on "subjective judgment" (as well as on other matters). But it does not follow that mawkish storytelling is effective in the courtroom or that lawyers ought to be trained in mawkish storytelling. (One trouble with mawkish storytelling is that it appears insincere, which, from an advocate's point of view, defeats its purpose. [There are other reasons to worry about mawkish storytelling.])

  • I really must study Robert Burns' stuff more thoroughly. Could or should a basic course in the law of evidence be combined with the topic of trial rhetoric (cf. "trial advocacy"). Issue: How is it even possible to study the process of factual inference and proof in trials without studying trial rhetoric (and trial advocacy)?
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