The Narrative of Innocence, or, Lost Stories

Abstract

The criminal courtroom is a place of competing narratives. Which narrative eventually becomes the basis of a conviction or an acquittal depends largely on how stories are told and how they are reconstructed by the fact finder. The construction and reconstruction of stories does not happen mechanically; lawyers and juries have a desire to create typical, exemplary narratives that resonate with their understanding of the world. This understanding can interfere with narratives that are not typical—the (potential) stories of innocence. Through the work of innocence projects, it has become clear that often the narrative that prevailed in court did not reflect what actually happened. Defendants were convicted for crimes they did not commit, and the stories of their innocence were lost. DNA evidence was used to exonerate many of the defendants, but this paper argues that even in the age of DNA evidence, the story model is still key to understanding the creation of legal reality because it allows the jury to develop narratives that have a much greater influence on the decision than facts or norms alone and that are basically unreviewable. Beyond individual cases, it is also the procedural, technical set-up—the blueprint—of a criminal justice system that choreographs storytelling. To exemplify this, I will contrast the adversarial system, which stresses the contest of narratives, with the inquisitorial model, where narratives are developed through an investigation by a judge.