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)?
  • Jury Trial in Russia

    See legalaffairs (archive, July-August, 2004).

    Wednesday, May 25, 2005

    The Death Penalty in Japan

    "The last time a death row inmate was granted a retrial [in Japan] was in 1986."

    Source: Masami Ito, Retrial a tall order in quests to prove innocence, The Japan Times (online), May 26, 2005. [If you are wondering about the date of this article, keep in mind (i) Japan's location and mine, and (ii) timekeeping conventions.]

    Lacey's Biography of HLA Hart -- Redux

    I have completed reading A Life of H.L.A. Hart: The Nightmare and the Noble Dream (Oxford 2004), Nicola Lacey's biography of HLA Hart.

    The reviews of the book I have found on the web are very laudatory. But I am unsatisfied. I am not entirely sure why.

    What are your sentiments?

    I am a latecomer to this book. I found one interesting item: correspondence about Thomas Nagel's review of the book. See correspondence. (To get the original book review, you must, alas, subscribe to the London Review of Books -- which I just did, and thus discovered that the key to my password will arrive in 4-6 weeks. Egads, only the British!)

    There is a generous obituary for Jenifer Hart, HLA Hart's spouse, at The Guardian's Obituary

    One definition of "nightmare": To be male and have Nicola Lacey as your biographer.

    Tuesday, May 24, 2005

    Try this 24-hour take-home examination in the law of evidence!

    Paula Pan and Harry Hanker are married on March 2, 1988.

    Paula Pan gives birth to a son, Boy Pan Hanker, on July 1, 1989.

    Paula and Harry are divorced on September 3, 2003. Custody of Boy is awarded to Paula.

    The State of Blackacre indicts Paula on October 1, 2004. The indictment charges that Paula sexually molested her son Boy on July 1, 1992.

    Temporary custody of Boy Pan Hanker is awarded to Harry Hanker on October 15, 2004.

    Boy commits suicide on November 1, 2004.

    The executor of Boy's estate commences a wrongful death action against Harry on December 1, 2004. The complaint in this civil action avers that Harry's negligence was the cause of Boy's death. In his answer, however, Harry denies negligence, and he avers that Paula's sexual mistreatment of Boy caused Boy to commit suicide.

    In February 2005 Harry's counsel in the wrongful death action serves Carr Counselor with a subpoena duces tecum. Carr is a guidance counselor at the school that Boy attended until his death. The subpoena orders Carr to surrender his personal diary at the taking of Carr's deposition in the civil action for wrongful death. During the deposition Carr hands Harry's counsel a small book and states, "Here's the diary you asked for."

    In May 2005 the sexual molestation charge against Paula proceeds to trial in a court of the State of Blackacre. Judge Major Wisdom is the presiding judge. You are Judge Wisdom's law clerk. Your name is Diligent Clerk.

    The trial begins. After the opening statements, the prosecutor makes an offer of evidence at the bench (outside of the hearing of the jury). He announces that he intends to have Carr Counselor give the following testimony:

    My name is Carr Counselor. I am the guidance counselor at St. Anselm's School, which is a Catholic parochial school. I had a counseling session with Boy Pan Hanker on May 24, 2004. He told me that it had "recently come back" to him that on his third birthday his mother had abused him. Specifically, he told me that after a birthday party for his third birthday his mother had taken him to her bed and had touched him "down there."
    Paula's defense counsel makes the following response to the prosecutor's offer:
    Your Honor, I object in the strongest possible terms to the proffered testimony. Carr has no right to testify about a private conversation with Boy. Furthermore, your Honor, anything that Boy may have told Carr is hearsay of the worst kind and it has absolutely no probative value. And I want to say one more thing, your Honor: even if Boy were alive and here in this courtroom, you would not and could not allow him to testify!

    I am sure you will rule in my favor, your Honor. However, if for some inexplicable reason you do allow Carr to testify about the statements that Boy allegedly made on May 24, 2004, I respectfully request an advance ruling on evidence that I must use to counter Carr's testimony. I have in my hand Carr's diary. Carr gave his diary to Harry's counsel during a deposition, and Harry's counsel gave it to me. I ask the court to rule that I can use the diary entries -- I will recite them in a moment, your Honor --, I ask that the court rule, first, that I can to use those diary entries during my cross-examination of Carr and, second, that I can give those diary entries to the jury for its consideration.

    These are the diary entries that I want to use, your Honor -- they are made in Carr's own hand; you will be able to read them for yourself, your Honor -- these are the diary entries I want to use if Carr testifies:

    January 5, 2004. Lousy, depressing time of year. Boy Pan Hanker came to my office. He was upset. His parents are divorced. The divorce was bitter. I have the sense that one of them did something to him. That's always the story: parents.

    January 12, 2004. Boy Pan Hanker came by again. Again he said he was upset. I asked him why. He said he didn't know. I told him that he should come back the next week and that in the meantime I would think about how I could help him. I need the time to think about this. I'm just a guidance counselor. I've been at this job for 20 yrs and I know my job. But I'm a guidance counselor, not a doctor. I don't even have a college degree.

    January 19, 2004. Boy came again. I told him I had an idea. I had watched a show on Discovery Channel or some such show. But I didn't tell him that. What I did say is that he and I would do psychodynamic therapy. We would work backwards through his life until we got to the root of his problem. I would use guided imagery: I would show him pictures to make his deep-rooted memories surface into his consciousness. I told him this would not be easy or fun. We would be digging for his most shameful memories. I said it might work. He agreed to try.

    February 16, 2004. We had our first dynamic imagery session a few days ago. I took him back to age 10. He lay down on the couch. I told him to relax. He did: he almost fell asleep. I showed him pictures. He reminisced. Nothing interesting.

    April 12, 2004. Boy and I have been at this imagery therapy business for several weeks now. What a trip! I've taken him back to age five. He feels something terrible happened to him at age three. I think it has to do with sex. Shame almost always does. We'll dig it out. This is exciting and interesting. This kid is obsessed with sex. He dreams about sex all the time. He thinks about it all the time. I think there's something wrong with him. The root of his problem is a sexual encounter. But the root of his problem now is that he is obsessed with sex. He can't distinguish fact and fancy. Now I've got to get him to give me the true story.

    May 24, 2004. Today was the bombshell, the payoff! I said, "Now take yourself back to your third birthday." I then showed him a picture of a birthday party with a bunch of smiling kids gathered around a table and a smiling mother lighting a candle on a birthday cake. He then said, "Mr. Counselor, I didn't see it before but I see it now. It's all in front of me. My third birthday party. The kids leave the party. My mother takes me to her bed, hugs me, and touches me down there. I feel ashamed; I feel awful." That's pretty much what he said. Then he ran out of my office crying. I had the sense that it would eventually come down to this -- to sex. Do I have to report to this to the police? I guess so.

    The prosecutor replies:
    Your Honor, Carr is plainly a competent witness. I would just like to add that I'm not sure that you can look at Carr's diary, if that's what it is. Let me make my point more emphatically, your Honor: with all due respect, neither you nor the jury can consider Carr's diary.
    Judge Wisdom turns to you and whispers:
    Diligent, this is all too complicated for me. I think we had better get this business straightened out now. I want to know if I should or can let Carr testify. I am willing to make an advance ruling on the other question or questions defense counsel has raised -- the question of how defense counsel can use Carr's diary if Carr does testify. You've got to help me out here as well.

    Diligent, you have to put the issues into some sort of sensible order for me and then you've got to resolve those issues for me. I'm going to adjourn the trial for a day. Diligent, I want you to write a memorandum for me. I want your memo in my hands in 24 hours or less.

    Where is that diary anyway? Has it been marked as an exhibit? Does he want to offer the whole thing? I guess not. I hope not. In any event, do that memo. Thanks, Diligent. Oh yes, Diligent: don't forget to do your homework. I'm sure you?'ll have to do some legal research.

    Write the memorandum and submit it within 24 hours.

    End of Examination Problem

    Was it Dworkin who said that in law there is -- in principle -- always a right answer? Now what on earth could he have possibly meant by that?