Download A Theory of the Trial. by Robert P. Burns PDF

By Robert P. Burns

Anyone who has sat on a jury or a high-profile trial on tv often involves the conclusion trial, quite a legal trial, can be a functionality. Verdicts look made up our minds as a lot wherein attorney can top connect to the hearts and minds of the jurors as via what the proof may recommend. during this get together of the yankee trial as an outstanding cultural success, Robert Burns, a tribulation attorney and a educated thinker, explores how those felony lawsuits result in justice. The trial, he reminds us, isn't really restricted to the neutral software of felony principles to actual findings. Burns depicts the trial as an establishment making use of its personal language and forms of functionality that bring up the certainty of decision-makers, bringing them involved with ethical resources past the boundaries of law.

Burns explores the wealthy narrative constitution of the trial, starting with the attorneys' starting statements, which determine opposing ethical frameworks within which to interpret the facts. within the succession of witnesses, tales compete and are held in stress. at some point soon in the course of the functionality, a feeling of the best factor to do arises one of the jurors. How this occurs is on the center of Burns's research, which attracts on cautious descriptions of what trial legal professionals do, the foundations governing their activities, interpretations of tangible trial fabric, social technology findings, and a extensive philosophical and political appreciation of the trial as a distinct automobile of yankee self-government.

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These perceptions are a kind of “prime matter,” as Aristotle put it,37 utterly plastic to both the jury’s empirical generalizations and, more important, to the legal norms embedded in the instructions. Testimony in the language of perception reduces the likelihood that the jury will simply adopt the moral or political judgments smuggled into the “descriptions” by an authoritative or sympathetic witness. NOT THE WHOLE TRUTH, NOTHING BUT LEGAL TRUTH: MATERIALITY The Rule of Law reaches into the conduct of the trial in another way.

By contrast, the argumentative rhetoric appeals primarily to the trial judge and the appellate court insofar as they perform the light policing of the Rule of Law I described in the first chapter. These arguments and the evidence on which they rely are usually calculated not to move these secondary triers of fact to judgment but simply to supply them with a kind of formal assurance of the “reasonableness” of the decision of the primary trier of fact. Given the deferential standards with which the trial judge and the appellate courts review jury determinations, the need to convince them that a reasonable jury could have employed those norms to decide the case is not overly demanding.

VALID LAW AND RELIABLE FACTS Most obviously, it is the judge’s task to instruct the jury as to the content of the law it must apply in deciding the case. 30 The law of evidence seeks to ensure that the material from which the jury builds up its value-free narrative of what occurred is reliable. Constructing a version of what happened from unreliable evidence would threaten the Rule of Law by reducing the accuracy of fact-finding. Thus exhibits must be “authenticated”;31 only the originals of documents may be presented;32 and witnesses may not report the hearsay assertions of 27 John Rawls, “Two Concepts of Rules,” Philosophical Review 64 (1955): 3–32.

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