NCJ Number
190012
Journal
American Criminal Law Review Volume: 38 Issue: 2 Dated: Spring 2001 Pages: 205-239
Editor(s)
Lesley B. Whitcomb
Date Published
2001
Length
35 pages
Annotation
This article provided argument in defense of criticism made of the American trial on its perceived “lawlessness” that the American trial embodies an authentic, yet complex, form of lawfulness appropriate for the time and public culture.
Abstract
This article confronted criticisms and misconceptions of the American trial that grew from a distinctive normative understanding of the trial’s nature. One such criticism was that juries were accused of making decisions based on emotion and prejudice. Reformers proposed strategies to force, or at least encourage, juries to “follow the law.” Understanding the distinctive lawfulness of the trial requires a continuous dialectical tracking between the most local of local detail and the most global of global structures, so as to bring both into view simultaneously. Then, achievement of a rational reconstruction of the trial and the kind of lawfulness of which it is capable will occur. The article consisted of three sections. The first section provided a focused and compressed account of the author’s conception of the American trial. It described the complexity of trial languages offering a sense of the density and power of the trial’s linguistic practices and performances. The second section discussed that within the complexity of trial languages there was an important role for legal rules, the rule of law. In the final section, the trial was seen as the central institution of law. Its lawfulness is a densely complex matter, respecting both the law of rules and moral and political sources that are more fundamental than any written enactments.