Wilson @richardawilson7 on Propaganda and History in International Criminal Trials

Richard Ashby Wilson, University of Connecticut School of Law, is publishing Propaganda and History in International Criminal Trials in the Journal of International Criminal Justice (2016). Here is the abstract.

In the course of prosecuting crimes against humanity, international criminal tribunals from the International Military Tribunal (IMT) at Nuremberg to the International Criminal Court (ICC) have provided accounts of the origins and causes of mass atrocities. Their historical narratives exhibit a common feature that has not been remarked upon, and that is the central role they assign to political propaganda in explaining popular participation in mass crimes. Judges have invoked propaganda to answer one of the most vexing questions at international criminal tribunals: why neighbor turned against neighbor and committed extreme acts of collective violence in contexts characterized by long periods of co-existence. This article evaluates the evidence for claims regarding the role of propaganda and concludes that eyewitness evidence for the causal role of propaganda is often slender and unconvincing. Insiders and material perpetrators more often than not repudiate their original testimony amid allegations of intimidation and bribery. At times, judges have balked at expert evidence on propaganda and refused to recognize it as germane to a criminal trial. Given the relative paucity of evidence for a directly causal role, why has propaganda become one of the overarching narratives that international courts employ to explain atrocities during armed conflicts? How does the model of causation customarily used in criminal law shape the kind of histories that international courts write? In answering these questions, the article refers to the unique model of causation used in criminal law, the apolitical nature of propaganda as an historical explanation, and the moral expressivist function of criminal courts.

Download the article from SSRN at the link.

Wendie Ellen Schneider on Veracity in the Victorian Courtroom

ICYMI: Wendie Ellen Schneider has published Engines of Truth: Producing Veracity in the Victorian Courtroom (Yale University Press, 2016). Here is a description of the contents from the publisher's website.

During the Victorian era, new laws allowed more witnesses to testify in court cases. At the same time, an emerging cultural emphasis on truth-telling drove the development of new ways of inhibiting perjury. Strikingly original and drawing on a broad array of archival research, Wendie Schneider’s examination of the Victorian courtroom charts this period of experimentation and how its innovations shaped contemporary trial procedure. Blending legal, social, and colonial history, she shines new light on cross-examination, the most enduring product of this time and the “greatest legal engine ever invented for the discovery of truth.”

Using Popular Culture to Demonstrate the Rules of Evidence

 

Martin A. Schwartz, Touro College Jacob D. Fuchsberg Law Center, has published Trial Evidence Brought to Life: Illustrations from Famous Trials, Film and Fiction (2015 Edition)(Practising Law Institute, 2015). Here is the abstract.

This book is a guide to the law of evidence that utilizes evidentiary examples from popular culture to provide a strong understanding of the Federal Rules of Evidence, and its interpretive case law. It also provides an understanding of how popular culture sources inform jurors’ preconceptions about the trial process. Illustrations from famous cases, movies, novels, cartoons, and other media highlight the presumptions jurors bring to the courtroom. Issues covered include: relevance; unfair prejudice; the rule against hearsay and its exceptions; recent developments in the Confrontation Clause; expert testimony; differences between expert witness and lay witness testimony; impeachment methods; procedures for juror questioning of witnesses; admissibility of videotape evidence; and requirements for introducing electronic evidence.

Social Scientific Evidence and Its Place In the Contemporary U. S. Trial

Robert P. Burns, Northwestern University, School of Law, has published Social Scientific Evidence as Northwestern Public Law Research Paper No. 15-43. Here is the abstract.

This paper considers two distinct and internally complex language regions, those of the contemporary American trial and of the social sciences. Its concern is how the trial treats the social sciences, not how the social sciences treat the trial. It first surveys the controversies that surround each region and argues that those controversies counsel against any "craving for generality" in defining their relationship with one another. It then describes the canonical account of the trial implicit in the rationalist tradition of evidence scholarship and explains how that account understands the place of social scientific evidence within it. The paper contrasts that received view of the trial with a more concrete and, to my mind, adequate interpretation of the trial. It then provides an account of the various functions of the social sciences within that more adequate understanding of the trial.

Download the article from SSRN at the link.

Creating Art Out of Crime

Katherine Biber, University of Technology, Sydney, Faculty of Law, is publishing In Crime's Archive: The Cultural Afterlife of Criminal Evidence in the British Journal of Criminology. Here is the abstract.

This article explores the cultural afterlife of criminal evidence. During the criminal trial, strict rules govern the collection, admission and interpretation of evidence at trial. However, after the conclusion of the trial, this material returns to a notional ‘archive’ and is sometimes used by artists, scholars, curators and others, but subject to no rules nor standards. This article examines a range of instances in which criminal evidence has been used post-trial, and proposes a jurisprudence of sensitivity for responding to the harm that is sometimes done when criminal evidence leads a cultural afterlife.

Download the article from SSRN at the link. 

Film as Memory

Jessica M. Silbey, Suffolk University Law School, is publishing Persuasive Visions: Film and Memory in Law, Culture, and the Humanities. Here is the abstract.

This commentary takes a new look at law and film studies through the lens of film as memory. Instead of describing film as evidence and foreordaining its role in truth-seeking processes, it thinks instead of film as individual, institutional and cultural memory, placing it squarely within the realm of contestability. Paralleling film genres, the commentary imagines four forms of memory that film could embody: memorabilia (cinema verite), memoirs (autobiographical and biographical film), ceremonial memorials (narrative film monuments of a life, person or institution), and mythic memory (dramatic fictional film). Imagining film as memory resituates film’s role in law (procedural, substantive and cultural) as authoritative rhetoric that must be disputed and reappropriated to serve the specific goals of justice.

Download the paper from SSRN at the link. 

Evidentiary Rules and "The Crucible"

Martin H. Pritikin, Whittier Law School, is publishing Can Law and Literature Be Practical? The Crucible and the Federal Rules of Evidence in the West Virginia Law Review. Here is the abstract.

Counter-intuitively, one of the best ways to learn the practice-oriented topic of evidence may be by studying a work of fiction — specifically, Arthur Miller’s The Crucible, which dramatizes the 17th century Salem witch trials. The play puts the reader in the position of legal advocate, and invites strategic analysis of evidentiary issues. A close analysis of the dialogue presents an opportunity to explore both the doctrinal nuances of and policy considerations underlying the most important topics covered by the Federal Rules of Evidence, including relevance, character evidence and impeachment, opinion testimony, hearsay, and the mode and order of interrogation.

Download the article from SSRN at the link. 

A "Reverse CSI Effect"?

Mark Godsey, University of Cincinnati College of Law, and Marie Alou have published She Blinded Me with Science: Wrongful Convictions and the 'Reverse CSI-Effect' in volume 17 of Texas Wesleyan Law Review (2011). Here is the abstract.

Prosecutors in the United States are often heard to complain these days of the "CSI-effect.'' Jurors today, the theory goes, have become spoiled as a result of the proliferation of these "high-tech" forensic shows, and now unrealistically expect conclusive scientific proof of guilt before they will convict. What I have come to notice, however, is a different kind a reverberation from the CSI-type shows that I believe often hurts defendants and benefits the prosecution. While not reported or discussed in the popular media as is the "CSI Effect," the other side of the coin, which I will call the "Reverse CSI Effect:' may be more damaging to the criminal justice system and the interests of justice than the opposite impact of which prosecutors complain. The "Reverse CSI Effect," as I call it, can be stated as follows: while jurors may have come to expect, as a result of CSI-type shows, high-tech forensic testimony in criminal cases, and may inappropriately acquit when such evidence is lacking, these same jurors, as a result of these same CSI-type shows, often place too much weight on forensic evidence in cases where forensic evidence IS in fact produced by the prosecution, resulting in convictions in cases where the defendant probably should have been acquitted.

Download the article from SSRN at the link.

Gender, Evidence, and Language Usage

Janet Ainsworth, Seattle University School of Law, has published The Performance of Gender as Reflected in American Evidence Rules: Language, Power, and the Legal Construction of Liability as part of the proceedings of the International Gender and Language Association (Victoria University Press, 2009). Here is the abstract.

The rules of evidence both govern the admissibility of evidence in trials and determine the scope of meaning to be accorded to that evidence. This article examines two American evidence rules and suggests that both rules incorporate ‘masculine’ norms of language usage. The evidence rule defining adoptive admissions provides that, when a person is confronted with an accusation of wrong-doing and fails to assertively deny it, the allegation is deemed to be admitted through silence. This rule presumes that one’s natural reaction upon an accusation would invariably be an explicit denial, such that silence can fairly be taken as a confession. Thus, this rule privileges assertive and confrontational modes of speech - all coded as ‘masculine’ - and additionally ignores the ways in which power assymmetries impact responses to accusation. Likewise, the evidence rule construing apology as an admission of fault denigrates expression of emotional solidarity - coded as ‘feminine’ - in favor of a presumption that penalizes those who say ‘sorry’ by presuming it means ‘I’m sorry I did something wrong’ rather than ‘I’m sorry that something bad has happened to you.’ Evidence rules such as these both channel and constrain the legal interpretation of language in ways that sustain linguistic ideologies of gender and gendered hierarchies of legal power.

Download the paper from SSRN at the link.

The Use of Images and Law

Jessica M. Silbey, Suffolk University Law School, has published Evidence Verité and the Law of Film, at 31 Cardozo Law Review 1257 (2010). Here is the abstract.

This paper explores a puzzle concerning the authority of certain images that increasingly find themselves at the center of legal disputes: surveillance or “real time” film images that purport to capture an event about which there is a dispute. Increasingly, this kind of “evidence verité” is used in United States courts of law as the best evidence of what happened. Film footage of arrests, criminal confessions, photographs of crime scenes (during and after) is routinely admitted into court as evidence. It tends to overwhelm all other evidence (e.g., testimonial or documentary) and be immune to critical analysis. Why would this be so?

This paper situates this phenomenon in the current legal United States context, with a brief history of “evidence verité” and its treatment at law. It then compares side-by-side two cultural institutions, photography and law, as examples of institutions with power and influence over public and popular consciousness. How do these two institutions intersect? What patterns of influence and persuasion emerge from the partnership of photographic or filmic images and the role of law? The paper explores these questions by tracing the life of certain iconic public images in hopes that doing so will tell us something about how they came to be iconic: how their circulation and reception in the United States rendered the images meaningful beyond their textual existence. Studying the circulation and recirculation of these photograph images helps make sense of how “real time” images in culture and at law might shape our understanding of important, historic events beyond the facts these images depict.

This paper is not a paper about how we understand images as a psychological or neurological matter. It is a paper about how law and legal processes frame images and how images – especially “real time” images – frame or shape the law. The photographs the paper examines include the “Migrant Mother” from the Great Depression, the bombing of Hiroshima, the flag raising at Iwo Jima during WWII, the Times Square Kiss on VJ day, the US landing on the moon, the first in utero photographs of a human fetus, and images of torture at Abu Ghraib prison.

Download the article from SSRN at the link.

Book Review: Harold Schechter's The Devil's Gentleman

Harold Schechter, The Devil's Gentleman: Privilege, Poison, and the Trial that Ushered in the Twentieth Century
Ballantine Books (October 2007)

Harold Schechter, an American literature professor at CUNY, has written a gripping account of the criminal trial and appeal of Roland Molineux, a case that grabbed headlines throughout the late 1890s. His book, The Devil's Gentleman: Privilege, Poison, and the Trial that Ushered in the Twentieth Century (2007) is a page-turner, and it reads almost like a novel.

Roland Molineux, the son of a revered Civil War general, was accused of an elaborate scheme of sending medicines and potions containing cyanide in order to kill two men. One was his friend whom Molineux wanted out of the picture because he was having an affair with the woman Molineux had his sights on marrying. The other was the director of an athletic club to which Molineux belonged and whom Molineux hated. The result was two murders, one of which involved an unintended victim. Oddly, anonymously sending potions or food laced with poison in the mail was an effective way to kill at that time. People apparently thought nothing of ingesting things that were sent to them anonymously. Poison was a popular murder instrument at the time, and people viewed poisoning as an especially sinister and "unmanly" way to kill. And one could readily be poisoned not through any nefarious scheme, but by the medicines at the time, some of which contained cyanide and arsenic. The cure was often more deadly than the disease.

The book focuses considerably on the role that the media played in the justice system. The media in the latter half of the Nineteenth Century was rabidly sensationalistic. The rise of "Yellow Journalism" was one of the factors that prompted Samuel Warren and Louis Brandeis to write their famous article, The Right to Privacy in 1890. Yellow Journalism emerged as Joseph Pulitzer and William Randolph Hearst transformed the newspaper business, from small circulations and weak profits (sometimes even losses), to a booming success. In two years, for example, Pulitzer increased the circulation of the New York World from under 12,000 a day to 150,000 a day:

The very look of the paper underwent a radical alternation. Headlines now stretched over several columns or were splashed across the entire top of the page. And there were cartoons, caricatures, lurid illustrations, and other voyeuristic visual aids. Not only were grisly murders reported in graphic detail; they were diagrammed so that readers could picture the horrors more clearly. (p. 98)

The newspapers conducted their own investigations into criminal cases, interviewing witnesses, tracing leads, shadowing the police. In one instance, a newspaper even funded an investigation. The police needed to go through 50,000 sales slips at a pharmacy, and "they would have had an impossible time of it, since orders were full of Latin medical terms and abbreviations. Only people with pharmaceutical training could accomplish the task." The pharmaceutical supply company "couldn't afford to loan [its clerks with the requisite training] out for an indefinite period of time." Enter the media:

At that point, however, the yellow papers, with their genius for self-promotion, insinuated themselves into the proceedings. The World--which never wearied of trumpeting its own invaluable contributions to the case--offered to reimburse Smith for his clerks' time. (p. 164)

When it came to the trial, the newspapers presented it more as a play than as a real event. One newspaper "presented a summary of the case in the form of a stage play, complete with a 'Cast of Characters'; a synopsis of the 'Great Double Poisoning Drama' divided into acts and scenes." (p. 173). A different paper had its theater critic covering the trial, which drew an attack from another newspaper as stepping over the line. "The trial is dramatic but it is not a dramatic spectacle," the editorial decried. "A murder trial should not be made to wear the aspect of a public diversion." (p. 289)

The Devil's Gentleman is riveting and engaging, and it and captures a vivid slice of life at the turn of the Twentieth Century. It contains an extensive and very interesting account of police investigations, trials, and appeals at the time. The book chronicles step-by-step how the police and press pieced together the case, as well as demonstrates the impact of various courtroom strategies and evidence (there were two trials, each involving considerably different strategies and admitted evidence).

And along the way, the book contains some interesting tidbits of information. For example, Theodore Dreiser mulled over writing a novel based on the case, but abandoned the project. He found another crime which formed the basis of An American Tragedy. And the book notes that in the 1890s, "dealers in mail-order patent medicine brought in extra income by saving the correspondence they received from customers, then selling these letters to other mail-order firms." (p. 269). Selling people's personal information, it seems, was a popular pastime then, as it is now.

Cross-posted at Concurring Opinions.