Courtroom Performances Research Articles

Shifting communication practices in Japanese courtrooms

Japanese criminal trials have shifted towards a more adversarial orientation following major law reform implemented over the past 20 years. Lawyers have had to adapt to the new context of professional communication with lay judges, who sit with professional judges in some trials rather than taking the role of citizen juries. For the defence and prosecution, a need to ‘win the battle’ with convincing courtroom performance and communication strategies have posed challenges, while judges still have the power to take an investigative stance to pursue the truth. This article explores how the shift towards an adversarial orientation manifests itself in the courtroom, and discusses the dilemma over the need for courtroom performance focused on spoken language and the trust in written communication that traditionally dominated the criminal justice process.

Hugo Bowles. Dickens and the Stenographic Mind

Charles Dickens’s struggles with shorthand constitute a familiar early waystation in the story of the author’s tragedies and triumphs. Making his way through ‘a sea of perplexity that brought me, in a few weeks, to the confines of distraction’—David Copperfield’s experiences here surely follow those of his creator—Dickens emerges first as a stenographic marvel among parliamentary reporters (at least according to his own later accounts), then as an ambitious young journalist, and finally as Boz. Readers of David Copperfield learn more about David’s study of shorthand than they do about David’s career as a successful author, but scholarship on Dickens has seldom considered the possible repercussions of his stenographic training and practice for his own career as a novelist, at least not at length. At most this phase of Dickens’s writing life might provide a biographical backdrop for those scenes in Copperfield, or perhaps inspire a quick note when Dickens ridicules committee reports, pretends to transcribe outrageous courtroom performances, or derides the pompous but formulaic speeches of politicians. Dickens and the Stenographic Mind amply and imaginatively redresses this oversight.

Performing Justice

Abstract Formal legal process is sometimes viewed as a rational intervention in bias, including the emotional biases stirred by ‘constitutional patriotism’. At the same time, critics have attacked the histrionic aspects of legal process as a trumped-up show that manipulates our emotions. I agree that adjudication is a performance, but I believe the very obvious artificiality of that performance may be its saving grace. The critique of what Jeremy Bentham called ‘theatre of justice’ ignores the way we see through the artifice of judicial process, even as we are morally and emotionally stirred by its effects. Courtroom performances do not produce objectively unbiased and uniquely correct legal outcomes. But they may provide some legitimacy for enforcing those outcomes by enacting a patently illusory ideal justice and confronting us with the gap between that ideal and our lived reality.

Rhetorical Engineering of Emotions in the Courtroom: the Case of Lawyers in Modern France

As a way of »performing the law«, courtroom speeches have been a fundamental component of the legal ritual and a basic component of lawyers’ identities in many countries with civil law traditions: lawyers have presented themselves and have been culturally perceived as legal experts who make use of emotional strategies in order to achieve their aims in court. Within the courtroom, emotions have been both rhetorical tools and goals, especially in criminal trials where forensic eloquence aimed to create an emotional environment that was favourable to the client. In France, a rich literature on the art of forensic rhetoric was both the result and the basis of a (re-)construction of a tradition that was extremely self-conscious, self-reflective and fundamentally emotional. The present work analyses the role of emotions in lawyers’ courtroom performances in the French legal culture from the beginning of the nineteenth century to the present. Its purpose is to identify the main themes related to the use of emotions in the pleading that legal professionals themselves have considered important – albeit with differing opinions – in the past three centuries. More broadly, this study explores reason / dispassion and emotion in legal practice beyond their longstanding dichotomy. Investigating the courtroom speech as a prototypical forensic performance through the perspective of the legal professionals themselves shows how reason and emotion have been continually intertwined and how legal professionals have consciously strategized approaches to the complex interplay between them in the judicial processes. Recommended citation: Vidor, Gian Marco, Rhetorical Engineering of Emotions in the Courtroom: the Case of Lawyers in Modern France, in: Rechtsgeschichte - Legal History Rg 25 (2017) 286-295, online: http://dx.doi.org/10.12946/rg25/286-295

Removing Linguistic Barriers to Justice: A Study of Official Reference Texts for Unrepresented Litigants in Hong Kong

One less obvious impact of legal bilingualism in a postcolonial jurisdiction like Hong Kong is an increasing trend of unrepresented litigants. Since their lack of legal knowledge often places them at a disadvantage and poses numerous problems in court, the government has established the resource centre for unrepresented litigants to offer them information about legal procedure. This paper evaluates the usefulness of the Chinese official reference materials at the centre in equipping laymen for civil litigation. As a first point of contact between unrepresented litigants and the law, these leaflets have a direct impact on the users’ understanding of litigation procedures and their courtroom performance. This paper argues that the leaflets suffer from two major problems: (1) incomprehensibility of language and (2) lack of structure. Problems involved in (1) include inconsistency in terminology, problematic translation, and language complexity arising from the use of odd collocation, unusual words, difficult legal terminology and confusing parts of speech; whereas in (2), information is found to be scattered and disorganised. To improve readability, the paper suggests using plain language, and providing checklists of documents, and a legal glossary. Cross-jurisdiction practices will be examined to show how unrepresented litigants’ access to justice may be facilitated.

Law as Performance: Presence and Simulation in the Theater/Courtroom

Contemporary theatrical performances and courtroom performances are increasingly grappling with the same challenge, namely: how to respond to world loss, the steadily advancing process of dematerialization. A growing number of cultural productions, including law, oscillate between virtual reality effects (the screen-based sensorium of heightened baroque sensation) and bodily presence. We are torn between reflexive meaning construction, on the one hand, and the material recuperation of reference and perception, on the other. In this essay, I ask what lessons multi-media theater may hold for the contemporary performance of law? I conclude that the current neo-baroque condition of world loss, and the familiar baroque strategy of proliferating form to distract us from metaphysical anxiety, poses serious political and legal challenges. Absent an appropriate response, unchecked growth in ongoing processes of de-realization, dis-ownership, and de-responsification may ultimately threaten the continued legitimation of law’s claim to power in the digital age.

At Swim-Two-Birds di Flann O’Brien: l’autore messo alla sbarra dai personaggi

In At Swim-Two-Birds an author is summoned to stand trial for his despotism. Dermot Trellis rapes one of his characters and is therefore overthrown in a “narrative coup” by his very characters. The leader of the rebels is his illegitimate son, along with a cohort of characters from either this or other novels.The protest reveals an examination of literary devices that not only does expose to ridicule narrative conventions – e.g. the surprising testimony of a cow strikingly voices the clash between story time and discourse time – but most importantly brings forward the need for an ethical stance in even the most apparently escapist literary works. Relying on recent narratological studies on metafiction (Linda Hutcheon’s and Patricia Waugh’s) and on literary characters, I will show that the characters’ revolt as well as their courtroom performance can be seen as an accusation levelled against fictional and social hierarchies. Moreover, I will argue that the abrupt and ambivalent ending of the story accounts for the writer’s need to mediate between the author’s and the characters’ stances in order to keep the novel together.

Bruised Witness: Bernard Spilsbury and the Performance of Early Twentieth-Century English Forensic Pathology

This article explores the status, apparatus and character of forensic pathology in the inter-war period, with a special emphasis on the 'people's pathologist', Bernard Spilsbury. The broad expert and public profile of forensic pathology, of which Spilsbury was the most prominent contemporary representative, will be outlined and discussed. In so doing, close attention will be paid to the courtroom strategies by which he and other experts translated their isolated post-mortem encounters with the dead body into effective testimony. Pathologists built a high-profile practice that transfixed the popular, legal and scientific imagination, and this article also explores, through the celebrated 1925 murder trial of Norman Thorne, how Spilsbury's courtroom performance focused critical attention on the practices of pathology itself, which threatened to destabilise the status of forensic pathology. In particular, the Thorne case raised questions about the interrelation between bruising and putrefaction as sources of interpretative anxiety. Here, the question of practice is vital, especially in understanding how Spilsbury's findings clashed with those of rival pathologists whose autopsies centred on a corpse that had undergone further putrefactive changes and that had thereby mutated as an evidentiary object. Examining how pathologists dealt with interpretative problems raised by the instability of their core investigative object enables an analysis of the ways in which pathological investigation of homicide was inflected with a series of conceptual, professional and cultural difficulties stemming in significant ways from the materiality of the corpse itself. This article presents early findings of a larger study of twentieth-century English homicide investigation which focuses on the interaction between two dominant forensic regimes: the first, outlined in part here, is a body-centred forensics, associated with the lone, 'celebrity' pathologist, his scalpel and the mortuary slab; the second is a 'forensics of things' centred on the laboratory and its associated technologies of trace analysis (hair, blood, fibres), deployed in closed technician-dominated spaces and in the regimentally managed crime scene. Future work will seek to illuminate the shifting landscape of English forensics by following the historical interplay between these two powerful investigative models.

Law and Mass Politics in the Making of the Civil Rights Lawyer, 1931-1941

What was the role of law and lawyers in the civil rights movement? Recent work has emphasized a tension between the legal strategies of the National Association for the Advancement of Colored People (NAACP) and a commitment to mass movement politics and economic populism. This article takes up that question by examining the everyday lives and litigation performances of depression-era black lawyers affiliated with the NAACP, arguing that the scholarly debate should be reframed through attention to the role of courtroom performances as crucial sites where race and professional identity was made and remade for civil rights lawyers such as Charles Houston, Raymond Pace Alexander, William Hastie, and Thurgood Marshall. Responding to the critics on their left, the lawyers fashioned a new professional identity that melded the NAACP's traditional approaches and concerns with a commitment to mass democratic politics.

Performative law and the maintenance of interracial social boundaries: Assuaging antebellum fears of "white slavery" and the case of Sally Miller/Salome Mu¨ller

This essay provides a performative analysis of the legal constructions of antebellum white slaves and mulattas/os. By looking at the polysemic readings of the "body" of Sally Miller, the author provides an illustration of the contradictions and complications that attended racial classification systems in the South. The author argues that the rhetoric surrounding the Sally Miller case helped to alter the legal presumptions that were used in evaluating the status of slaves and free persons of color and that critics would later use these courtroom performances in their critiques of the dangers that attended the misidentification of whites or mulattas/os. This antebellum case study also provides an example of some of the tactics that were used by some of the communities who have seeking the power of whiteness in the 19th century.

The Tragedy of Mark Twain, by Pudd'nhead Wilson

Why did Mark Twain title his last published novel about America The Tragedy of Pudd’nhead Wilson (1894)? Wilson's share of the story seems anything but tragic: he rises to popularity and fame while restoring a disrupted social order. By looking closely at Wilson's climactic courtroom performance, however, in this essay I argue that Wilson achieves his celebrity status by surrendering to his audience's social and racial prejudices. I further suggest that in ironically measuring the cost of Wilson's public triumph, Mark Twain is rehearsing his own uneasiness with his career as a literary performer– especially his decision to end Adventures of Huckleberry Finn (1885) with the "Evasion" that turns that novel's treatment of racism and enslavement into a farce. Like Wilson's courtroom theatrics, the ending of Huckleberry Finn is a socially reassuring act of erasure that haunted Twain enough to lead his imagination back to the slaveowning village once more, this time to narrate the quest for popular approval that Tom Sawyer had sought and Huck Finn had tried to run away from as a tragedy. By looking closely at the larger story of Pudd'nhead Wilson–including Twain's commentary on it, the contemporary reviews of it, and Frank Mayo's successful dramatization of it–I suggest that even in this novel the operations of racism are mainly being perpetuated rather than exposed. Whatever Samuel Clemens may have believed about race, a Mark Twain performance finally had to placate rather than confront the prejudices of its American audience.

Attorney communication and impression making in the courtroom: Views from off the bench.

This study investigated the effectiveness of attorney communication and impression making in the courtroom. Trained in-court observers rated attorney presentations for factual and legal informativeness, organization, articulateness, and rapport during the opening statement phase of 50 trials. After the trials, jurors were asked to evaluate the attorneys' overall articulateness. enthusiasm, and likableness during the trial. The attorneys were then questioned about their own performance on these indices. The results revealed that the opening statements of prosecuting attorneys were judged by observers as better organized and more factually and legally informative than defense attorneys. However, these variables were not related to trial outcome. Juror evaluations of prosecuting attorneys more closely agreed with these attorneys' self-perceptions of courtroom performance while defense attorneys rated themselves significantly more favorably than did jurors. More courtroom experience did not generally lead to better courtroom performance during opening statements for either prosecuting or defense attorneys, and often resulted in significant overestimations of general performance relative to juror evaluations, particularly among defense attorneys. System constraints operating in favor of prosecutors and performance feedback mechanisms available to prosecutors but not to defense attorneys are discussed. These mechanisms may account for the discrepancies between juror perceptions of attorneys and attorney self-perception.

Judges' Views of Lawyers in their Courts

In a prior issue of this Journal,' I reported tabulations and statistical analyses of the results of a survey of judges concerning the competence of trial advocates appearing in their courts. The survey was designed to focus on the courtroom performance of attorneys as observed by trial judges. The survey questionnaire, which was sent to all judges of general jurisdiction (both state and federal), was intended to elicit judicial evaluations of advocacy competence from both long-term and more immediate perspectives, from the trend in advocacy competence since the judge had come to the bench to ratings of attorneys who had appeared in the judge's five most recent contested trials. The factors that judges consider in evaluating the competence of trial advocates, as well as judges' opinions about various measures that might be used to ensure or enhance the quality of trial advocacy, also were explored. The previously reported survey results were based on responses to specific questions about these issues. I included a general open-ended question as the final item on the survey questionnaire to permit respondents to emphasize or expand on their prior responses to specific questions, as well as to raise any additional issues. I did not analyze the responses to this question in the previous article but will examine them in this article. The general question read as follows: Your comments on the general state of the trial bar, your views on the causes of and cures for trial advocacy incompetence, and any other general observations are solicited.

Trial Advocacy Competence: The Judicial Perspective

The competence of attorneys, and more particularly the competence of trial lawyers, is currently an issue of considerable controversy both within the judiciary and within the legal profession itself. This article addresses the issue of attorneys' courtroom performance as observed by judges. Drawing on data from a survey administered to state and federal judges sitting in trial courts of general jurisdiction, this article explores the relationship of demographic and judicial characteristics to various judicial evaluations of advocacy competence. While it provides important insights into the present state of trial advocacy competence, it also constitutes a systematic examination of the judiciary's perceptions of the trial bar.