The Truth of Verdicts? A Social Psychological Examination of A Theory of the Trial

Abstract

Robert Bums's A Theory of the Trial illustrates, quite masterfully, the many ways that the American trial is a much more dynamic and psychologically complex event in practice than its idealized legal version would suggest. Bums argues against what he calls the View of the trial, which can be characterized as the prevailing legal myth of how cases are structured, presented, and decided on in trial. This traditional legal model of the trial imagines the process following a very simple path to judgment: Reliable evidence is presented, the finders of fact assess credibility of witnesses and strength of evidence, that body then constructs a value-free narrative of the most likely scenario, and that narrative is then placed in one of the legal categories available, which determines the final verdict. While Bums suggests that there are some truths to the Received View, he illustrates the ways that trial practices diverge from this linear model, relying substantially on his own observations and experiences from his years as a trial lawyer. In particular, his discussion of how attomeys approach their task at trial-from argument and presentation of evidence to crossexamination and closing-to best reach their audience is richly nuanced and quite illuminating. Successful trial attomeys, in his view, have a knack for narrating their case, ordering and presenting their evidence, and zeroing in on the weaknesses of their opponent's case, so that their trial package will at least give jurors (or judges in bench trials) pause and make them consider more than the easy or obvious when deciding on facts, meanings, and judgments.