In The Death of the American Trial, distinguished legal scholar Robert P. Burns makes an impassioned case for reversing the rapid decline of the trial before we lose one of our public culture’s greatest achievements. As a practice that is adapted for modern times yet rooted in ancient wisdom, the trial is uniquely suited to balance the tensions—between idealism and realism, experts and citizens, contextual judgment and reliance on rules—that define American culture. Arguing that many observers make a grave mistake by taking a complacent or even positive view of the trial’s demise, Burns concludes by laying out the catastrophic consequences of losing an institution that so perfectly embodies democratic governance.
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About the Author
Robert P. Burns is professor at the Northwestern University School of Law. He is the author of A Theory of the Trial.
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The Death of the American Trial
By ROBERT P. BURNS
THE UNIVERSITY OF CHICAGO PRESSCopyright © 2009 The University of Chicago
All right reserved.
Chapter OneInside the Contemporary Trial
[The jury trial] imbues all classes with a respect for the thing judged and with the notion of right. —Alexis de Tocqueville
If the American trial is in its death throes, why should we care? Many institutions and practices flourish for a while and then decline, even die. Americans who have barely heard of John Dewey naturally think that all institutions must remain in a living balance with their environments and likely to atrophy when they "lose touch" or fall "out of step" with those environments. Perhaps the trial is no longer in touch with our broader social and political environment. We should expect it to atrophy and die.
Perhaps. But perhaps so much the worse for much of our social and political environment. As Judge Dwyer put it, "for us the jury is the canary in the mine shaft; if it goes, if our people lose their inherited right to do justice in court, other democratic institutions will lose breath too." Of course, because both the trial and the other elements of the political environment are human creations, each is subject to revision in light of a deeper understanding of the other. There are no hard determinisms here. There are no Archimedean points from which to understand the demands of justice and democracy for our situation other than those implicit in each of the modes of social ordering, especially the trial. The world looks different when viewed from a jury box than from an elected politician's strategy session or a corporate boardroom. We will see below that the trial's critics speak from each of those perspectives. Of course, it may prove that a deeper understanding of what the trial is and has meant for us will lead us to allow it to bring larger reaches of that environment under its influence, to shape broader segments of American society in its image and likeness, the likeness of "disciplined democracy." This is, of course, what those powerful forces that are waging a war against the trial fear. They would, however, have no reason to deploy such resources against the trial unless the perspective from the jury box continued to have real power.
In this chapter, I will describe what the trial is and has been for us. First, I will provide a description of what goes on at trial. Unfortunately, there exist layers of misapprehension cooked up in a brew of television melodrama and often mocking and distorting propaganda that have to be cleared away. These portray the trial as an undisciplined reaction by hoodwinked or runaway jurors in response to purely emotional appeals. I cannot overemphasize the importance of keeping before our eyes some simple descriptive truths about the trial. Ludwig Wittgenstein told us that what is closest to us is what is hardest to see. Doctor Johnson remarked that it is more important to be reminded than to be instructed. I then try to go a bit deeper and offer an account of why so many of those who know the most about American trials hold them in such high regard. In the next chapter I step outside the trial itself to provide a condensed account of aspects of the place of the trial in the American experience, something also preliminary to determining what its loss would mean.
Autonomy and Discipline: Direct Examination
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. Unless prevented by the application of rules of evidence announced beforehand and equally applicable to both sides, each party may present any evidence that supports his or her position. He or she is not dependent, as are parties in more authoritarian regimes, on the judge's choice of questions to ask and exhibits to present. The state official does not have full operational control over what is at issue, "what this case is about," as trial lawyers like to say. This independence of the parties is, of course, supported by the adversary ethos of the legal profession, whose allegiance is primarily to the client and constrained only by rules that prohibit misrepresentations. The ethical rules attempt a tense balance between energy on the client's behalf and respect for the facts, "what we cannot change; metaphorically, ... the ground on which we stand and the sky that stretches above us."
The principal method of presenting evidence at trial is the direct examination of witnesses. Some have complained that the conventions of direct examination do not allow the witness to speak spontaneously, in his or her own way and in his or her own words. Its conventions are an example of the combination of party participation and formalism that characterizes the American trial. But direct examination is simply a conversation between lawyer and witness. It is true that the rules of evidence and the conventions of trial practice make direct examination a very specific form of public conversation. This is for very specific reasons. Direct examination offers the jury a series of vignettes of past events whose order of presentation is dictated by considerations of relative importance and clarity. The rules and conventions conspire to require that each vignette be described in a rhythm between physical description, setting the scene, and chronological narrative of what the witness saw and did. Set the scene, then run the action.
Witnesses in direct examination are generally limited to testifying in response to nonleading questions and in the language of perception. They may describe what they saw and what they did. This means that the witness's account must be relatively devoid of interpretations, conclusions, opinions, and most of the other things we do with words. (Witnesses may not make promises, for example not to do it again, or give advice as to how the case ought to be decided.) The trial takes facts seriously. Aristotle taught that what distinguishes a legal forum from a political one is the importance of the narrative of specific events in legal forums. We will see that there are political dimensions to American trials, but those dimensions are more or less suppressed. The conventions of direct examination suggest that judgment can come too easily: it is too tempting to seize upon a few abstract dimensions of a situation—the race or gender or nationality of the parties for example, or a very general notion of the kind of case it is—and remain blind to the important factual details. The trial says, in effect, "Both God and the devil are in the details, and, for every man's sake, attention is to be paid." Central to its democratic character is the fact that a group of laymen, for whom jury service is an unusual event, is more likely than a professional judge (who can too easily become a bored or overbearing bureaucrat) to pay attention. As Chesterton put it in his wonderful tribute to the jury:
The trend of our epoch up to this time has been consistently towards specialism and professionalism.... Many legalists have declared that the untrained jury should be altogether supplanted by the trained judge.... [However,] the more a man looks at a thing, the less he can see it, and the more a man learns a thing the less he knows it.... [T]hat the man who is trained should be the man who is trusted would be absolutely unanswerable if it were really true that a man who studied a thing and practiced it every day went on seeing more and more of its significance. But he does not. He goes on seeing less and less of its significance. ... Now it is a terrible business to mark a man out for the judgment of men. But it is a thing to which a man can grow accustomed, as he can to other terrible things.... And the horrible thing about all legal officials, even the best, about all judges, magistrates, barristers, detectives, and policemen, is not that they are wicked (some of them are good), not that they are stupid (several of them are quite intelligent), it is simply that they have got used to it.... Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of judgment; they only see their own workshop. Therefore the instinct of Christian civilization has most wisely declared that into their judgments there shall upon every occasion be infused fresh blood and fresh thoughts from the streets.
Justice Fortas put the same thought in more conventional terms:
[J]udges do become case-hardened. Judges do sometimes tend, after many years, to take a somewhat jaundiced view of defendants. Many trial judges tend to become a bit prosecution minded. That's the basic justification for a jury.
In ordinary life, we do not talk the way we talk during direct examination, because most conversations are aimed not at a rigorous attempt to determine and evaluate what occurred in the past, but rather to establish or develop the relationship between the conversation partners while accommodating most of their prejudices, a task to which the sharing of opinions and feelings is well suited. The trial implicitly says something like, "Before we start arguing about what our situation means, how we should understand it, and certainly before we argue about what is to be done about it, let's take the time to figure out exactly what occurred, as best we can. And if we can't do even that, that means we don't have any real basis for opining or acting." One path to that is to ask witnesses in some detail what they saw and did. Because accuracy is important, we ask witnesses to speak in the language of perception, in part because perceptions are less likely than opinions and interpretations to be products of the "anxious, usually self-preoccupied, often falsifying veil" that we usually spread over those aspects of what we see which offend our prejudices.
The Discipline of Direct Examination in Support of Formal Justice
There is much more to this. Testimony in the language of perception fosters accuracy, but it also furthers "the rule of law as a law of rules," as Justice Scalia is fond of putting it. It supports the aspiration that state power be deployed only on the basis of preexistent rules of general application. Testimony in the language of perception is more open to a jury's independent judgment on the basic legality of the human actions being evaluated than would be a flood of opinions and conclusions by a series of witnesses. Anyone who has done any interviewing knows how difficult, how artificial it is, to coax a witness or a client simply to recount what happened in a coherent and complete way. That's why there are books on the subject of legal interviewing. Without a set of conventions that allow the jury to hear the witnesses provide a coherent account of what the witnesses have perceived and now remember, the trial would resemble at worst the Jerry Springer show and at best the McLaughlin Report. It would not allow the jury to make reliable determinations of what occurred and make the further judgment about whether what happened fell inside or outside the legal categories. Indeed the jury's judgment wouldn't be about a particular case at all, but merely an expression of generalized prejudices triggered by a few hot-button aspects of the case.
How and why should the trial support the rule of law as the law of rules? One important, though partial, view understands the trial exclusively as the institutional device for the maintenance of the rule of law in situations where there are disputes of fact. The law of rules that make up the rule of law is understood as a set of preexistent commands that assign determinate consequences to determinate classes of events. The primary political good of law so conceived is the enhancement of citizen autonomy—the citizen always knows where the lines are and can always control how he may avoid the intrusion of the coercive power of the state into his pursuit of happiness. This is an important political value. Furthermore it explains and can be brought into reflective equilibrium with a range of actual trial practices.
Speaking broadly, this received view understands the jury to be engaged in two practices, distinct from one another and in sequence. First, it must create from inevitably circumstantial evidence, through the mediation of purely empirical commonsense generalizations, an accurate and value-free narrative of what occurred. It must be accurate, because the rule of law will not prevail if citizens are punished or otherwise suffer the effects of the coercive power of the state when they have not in fact done what they are accused of. This would be true whether the officials deliberately misrepresent the underlying facts, were negligent in determining them, or were simply and innocently incapable of determining what actually occurred. The account must be not only accurate, but also value-free. If the account of what occurred was infected by norms that came from the jury's normative common sense or sensibility, then there would be no assurance that the case was actually being decided based exclusively on the legitimate norms found in the jury instructions.
According to the received view, after constructing a value-free account of what occurred, the jury must perform what we can call an act of fair categorization. It must decide whether or not the factual account that the jury has constructed, with the help of counsel, from the circumstantial evidence falls within or outside the categories defined by the rules to be found in the jury instructions, which in turn reflect the elements of the claims, crimes, or defenses as defined by the substantive law. The closer this operation comes to a deduction the better. This notion is "often thought to imply, further, that there are rules and procedures of inference according to which the features of the various concepts and the characteristics of various particular things ... can be said to correspond to certain characteristics and not to others." Thus, the verdict occurs as the result of what we might call an act of impartial conceptual "inspection," by which the jury determines whether or not its value-free account of what has occurred falls into one of the classes defined by the instructions. Thus, in the received view of the trial, the only rules or concepts linking the facts of the individual case and the verdict are the value-free empirical generalizations that allow the construction of the value-free account, on the one hand, and the legitimate legal categories, on the other.
The power of the received view stems not only from its connection with the basic values of the liberal state, but also from its coherence with a number of the most distinctive features of the American trial. It is consistent with the availability of a range of summary procedures in civil cases (though not with the absence of most of those procedures in criminal cases), the doctrine of materiality in evidence law, several other evidentiary doctrines that seek to ensure reliability, the availability of judgments as a matter of law after trial (though, again, not against the defendant in criminal cases), the use of jury instructions, and the strong preference for testimony in the language of perception. The law of rules has an important place in the structure of American trial practices. On the other hand, to understand the American trial solely in these terms is to commit the fallacy of misplaced concreteness, to assume that important rules or aspects of the trial exhaust its concrete reality. To understand the trial solely in the language of the received view is to impoverish our interpretation of the trial. To act as if the trial were equivalent to the rules and practices that stem from this understanding would be to return at the trial level to a species of mechanical jurisprudence. The trial is much more than that, as we will soon see.
Excerpted from The Death of the American Trial by ROBERT P. BURNS Copyright © 2009 by The University of Chicago. Excerpted by permission of THE UNIVERSITY OF CHICAGO PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents
1. Inside the Contemporary Trial
2. Historical Notes on the Trial’s Importance
3. The Fundamental Tensions the Trial Defines
4. Decline and Criticism
5. The Meanings of the Trial’s Death