Tuesday, February 23, 2010

A Theory of the Trial by Robert Burns

The book A Theory of the Trial (1999) by Robert Burns really is a very interesting and important book even for -- or especially for -- Evidence specialists.

Burn talks much about narrative. Today even the United States Supreme Court talks -- occasionally -- about the role of narrative in the trial. See Old Chief v. United States, 519 U.S. 172 (1997). But the marriage of the law of evidence and of story-telling remains incomplete. Why? Is it because we do not yet know how to harmonize what Burns calls the "Received View of the Trial" (Chapter 1) with a view that takes into account matters such as the evaluative activities of the jury, the importance of theme at the trial, and so on?

Many of us -- probably most of us, thank goodness -- do wish to preserve the trial's emphasis on the search for the "truth." But it is foolhardy to think that an acceptable search for the truth can be achieved if we ignore, for example, many of the ways the jury thinks about and makes sense of what goes on in the courtroom.

In one very interesting section (in Chapter 5) Burns discusses "Features of the Trial Too Basic to Be Noticed and Preliminary Notes on Their Significance." Sometimes one must be a visitor from Mars to notice the profound impact of the familiar. On a visit to Belfast many years ago I noticed how the barristers in a trial paused for some moments after each one of their questions was answered by a witness. I wondered why. Then I noticed a scrivener who, apparently, was writing everything down, laboriously, by hand. I think (but I am not sure) the barristers paused to give the scrivener time to do his job. This, of course, had a noticeable effect on the pace of examination and cross-examination.


The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

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