Talking Back in Court

69 Pages Posted: 20 Jul 2021

See all articles by Eve Hanan

Eve Hanan

University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: June 1, 2021

Abstract

People charged with crimes often speak directly to the judge presiding over their case. Yet, what can be seen in courtrooms across the U.S. is that defendants rarely “talk back” in court, meaning that they rarely challenge authority’s view of the law, the crime, the defendant, the court’s procedure, or the fairness of the proposed sentence.

With few exceptions, legal scholars have treated the occasions when defendants speak directly to the court as a problem to be solved by appointing more lawyers and better lawyers. While effective representation is crucial, this Article starts from the premise that defendants have important things to say that currently go unsaid in court. In individual cases, talking back could result in fairer outcomes. On a systemic level, talking back could bring much needed realism to the criminal legal system’s assumptions about crime and punishment that produce injustice.

This Article analyzes three types of power that prevent defendants from talking back in court: sovereign, disciplinary, and social-emotional power. While sovereign power silences defendants through fear, disciplinary power silences defendants by imposing a system of order within which talking back seems disorderly. Finally, social-emotional power silences defendants by imposing an emotional regime in which self-advocacy is both a breach of decorum and an affront to the court’s perception of itself as a source of orderliness and justice. The dynamics of social-emotional power are particularly critical to evaluating court reform efforts focused on improving courtroom culture. Paradoxically, the more solicitous the judge, the less the defendant may feel comfortable raising concerns that challenge the court’s narrative of justice.

Keywords: crime, misdemeanor, fines, procedural justice, specialty courts, criminal procedure, criminal law, pro se, emotions, disciplinary power

JEL Classification: K14, K10, K41, K42

Suggested Citation

Hanan, Eve, Talking Back in Court (June 1, 2021). Washington Law Review, Vol. 96, No. 2, 2021, Available at SSRN: https://ssrn.com/abstract=3886868

Eve Hanan (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

HOME PAGE: http://https://law.unlv.edu/faculty/eve-hanan

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