Some Realism (and Idealism) About the Trial
Robert P. Burns
Northwestern University - School of Law
Georgia Law Review, Vol. 31, No. 3, 1997
The article begins with a description of the ways in which some of the most striking internal features of the trial are consistent with a normative model which the author calls "The Received View". The Received View understands the trial, with is supporting constitutive evidentiary rules and principles, to be the institutional device to make the Rule of Law operational. In particular, the most basic of those rules and principles are designed to provide to the jury reliable facts plastic solely to the authoritative norms that embedded in the jury instructions.
The article then describes a series of anomalies in the legal structure of the trial that the Received View, however powerful, fails to explain. Together, they suggest that something else is afoot in the trial, that it is not simply a device for placing the stamp of legal norms on value-free accounts of "what is the case". These anomalies describe aspects of the trial that, arguably, reflect our "considered judgments of justice," those convictions in which we often "make intuitively and in which we have the greatest confidence." [Rawls] This suspicion is confirmed by a review of the social science literature on the trial. The most reliable findings portray the jury as competent, deeply engaged with the evidence, focused on doing substantive justice, dependent on the trial's different narratives, and consciously exercising "political" judgement. That portrayal is inconsistent with the Received View.
The article then argues that the Received View cannot adequately describe the cognitive processes at work at trial, that it literally cannot be followed. An alternative, much richer and more complex model of decision-making, more consistent with the legal structure and social science literature, is proposed and explained. For us, the trial provides a forum within which to resolve the issues of relative importance among the competing principles that structure the sharply competing spheres of modern life.
Accepted Paper Series
Date posted: November 15, 1998
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