Abstract
Under the adversarial nature of the judicial process in the United States, Prague School theory provides a lens for understanding the criminal trial as a complex form of theater, with the opposing attorneys, by their trial performances, creating competing performance texts from the dramatic text of what the various witnesses potentially can offer by their evidence and testimony. The jurors, as the audience of these competing performances, have the responsibility for participating in the creation of the meaning of the dramatic text, a meaning embodied in the verdict of guilt or acquittal. The competing trial performances of the opposing counsel are, in essence, extended arguments for the meaning of the dramatic text, and the jurors will understand these performances to be extended arguments. The jurors, as well, can understand, however, much subconsciously that the trial is theatrical in nature. As such, the individual juror can understand that any element of, or action occurring anywhere within, the courtroom as being situated in the theatrical frame. And, if these elements and actions are situated within the theatrical frame, then they can be understood as part of the extended argument that constitutes the trial performance. In the course of criminal trials, particular elements and actions occurring within the theatrical frame have come under challenge as being prejudicial to the accused – such as the clothing that the accused is required to wear, the presence of uniformed officials in the courtroom, and the clothing, bearing texts or images, worn by trial spectators. Because the juror can, primarily at a subconscious level, understand that these elements and actions constitute arguments either for guilt or for the exercise of vengeance, then they are procedurally improper, coming into the trial in violation of the rules of evidence and process; they violate the due process rights of the accused. Although an argument for guilt, of itself, is substantively proper, an argument for vengeance is not; thus, an element of the theatrical frame that can be understood as an argument for vengeance is both procedurally and substantively improper. It is altogether prejudicial to the accused and altogether in violation of the due process rights of the accused. Unfortunately, the judiciary has only fitfully recognized the semiotic power of these elements and actions for creating prejudice to the accused.
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Notes
- 1.
The facts in this case are set out in Musladin v. Lamarque (2005, 654–655).
- 2.
It is a fact that Musladin killed Studer. The fundamental question at trial is what is the legal meaning of that fact: Was it murder? Was it a justified homicide? Thus, the locution: Before the trial is concluded, it is not correct to say that Studer was a murder victim. Unlike the term “kill,” “murder” and “victim” are legal conclusions. And those conclusions have not yet been reached. Thus, before the trial is concluded, the proper locution is that Musladin killed Studer, and Studer is a deceased. Only if the jury returns a verdict of guilt is it correct to announce these legal conclusions: Musladin murdered Studer, and Studer is a murder victim.
- 3.
- 4.
The trial judge will also deliver preliminary and interlocutory instructions, which for the most part relate to the role and conduct of the jury during the trial.
- 5.
For example, Turner v. Louisiana, 379 US 466 (1965).
- 6.
For example, Marshall v. United States, 360 US 310 (1959).
- 7.
As a general matter, courts tend to agree that requiring the defendant to appear at trial in jail inmate or prison inmate of clothing is, of itself, potentially prejudicial. For example, Gaito v. Brierly, 485 F.2d 86 (3d Cir. 1973); Hernandez v. Beto, 443 F.2d 634 (5th Cir. 1971); Bently v. Crist, 469 F.2d 854 (9th Cir. 1972)
- 8.
- 9.
- 10.
- 11.
- 12.
The Supreme Court did, however, make clear that it was not reconsidering its decisions in Estelle v. Williams and Illinois v. Allen that jail inmate clothing and restraints can be prejudicial (Holbrook v. Flynn 1986, 568).
- 13.
Other courts as well, in cases involving similar circumstances, have dismissed defense challenges for prejudice. For example, Kenyon v. State (1997) (buttons bearing image of deceased; no evidence of prejudice shown); Buckner v. State (1998) (8 × 10 photos of deceased; jurors assert that they were not prejudiced); State v. Braxton (1996) (buttons); Nguyen v. State (1998) (buttons bearing image of deceased; defendant did not show that there was prejudice); State v. Lord (2007) (buttons bearing image of deceased; there is no message that would imply guilt). In Musladin v. Lamarque (2005), the US Court of Appeals did hold that buttons bearing the image of the deceased in a trial for murder were prejudicial, requiring the invalidation of a verdict of guilt. This decision was overturned, however, by the US Supreme Court in Carey v. Musladin (2006).
- 14.
The West Virginia Supreme Court did find similar spectator conduct to be prejudicial to the accused in a trial for felony driving under the influence of alcohol resulting in death. State v. Franklin (1985).
- 15.
- 16.
For example, United States v. Acosta-Garcia, 448 F.2d 395 (9th Cir. 1971); McCoy v. Wainwright, 396 F.2d 818 (5th Cir. 1968); Williams v. Commonwealth, 474 S.W.2d 381 (Ky. 1971); State v. Sanders, 903 S.W.2d 234 (Mo. 1995). The problem with this reasoning is that there can be potential prejudice no matter how briefly the jurors might see the defendant in restraints. It does not matter whether the defendant is in restraints throughout the trial or just when, for example, he is brought into, or led out of, the courtroom.
- 17.
For example, United States v. Samuel, 431 F.2d 610 (4th Cir. 1970); Estep v. Commonwealth, 663 S.W.2d 213 (Ky. 1983); Commonwealth v. Agiasottelis, 142 N.E.2d 386 (Mass. 1957); State v. Dusenberry, 20 S.W. 461 (Mo. 1892). The problem with this reasoning is the matter of the negative suggestion. If you tell someone not to think about pink and green elephants for the next 2 h, it is highly likely that they will think quite abundantly about pink and green elephants for the next 2 h. To give curative instructions runs a substantial risk of calling attention to the action or circumstance in issue, exacerbating its prejudicial effect.
- 18.
For example, State v. McKay, 167 P.2d 476 (Nev. 1946). The problem with this reasoning is that, according to the hoary aphorism, beauty is in the eyes of the beholder. The standard for a verdict of guilt is not that the trial judge believes beyond a reasonable doubt that the accused is guilty; rather, it is that the jury finds beyond a reasonable doubt that the accused is guilty. The Prosecution case might convince the judge beyond a reasonable doubt, yet fall short of so convincing the jury. In that circumstance, the prejudicial matter that occurs during the trial might then tip the scales in favor of a verdict of guilt. Long ago, in his decision in Bushell’s Case (1670) in 1690, Lord Chief Justice Vaughan emphatically made the point that the judge on the one hand and the jurors on the other can interpret the evidence and testimony quite differently. This same point, in the context of a video recording of a traffic stop, was made in a recent article, “Whose Eyes Are You Going to Believe?” (Kahan et al. 2009, 122:837–906).
- 19.
For example, Allen v. Montgomery, 728 F.2d 1409 (11th Cir. 1984); State v. Wilson, 406 N.W.2d 442 (Iowa 1987); State v. McNaught, 713 P.2d 457 (Kan. 1986); Murray v. Commonwealth, 474 S.W.2d 359 (Ky. 1971); Cline v. State, 463 S.W. 2d 441 (Tex. 1971). The problem with this reasoning is twofold. First, in any inquiry into prejudicial effect, the matter under inquiry is whether the trial judge allowed impermissible matters to be placed before the jurors for their consideration in reaching their verdict. Such an inquiry, however, from the point of view of the jurors can carry the implicit suggestion that they may have done something blameworthy by considering these matters. Thus, in such an inquiry, they have a strong incentive to deny that the potentially prejudicial matter did consciously affect them. Second, much of the effect of a prejudicial matter takes place in the subconscious minds of jurors; thus, jurors, even if being scrupulously honest, are not in a position to say whether the matter affected them. If the standard for judicial intervention is that the accused must show that prejudice actually occurred, the accused is in an extremely disadvantageous position in being able to make that showing.
- 20.
“All that is on the stage is a sign” (Veltrusky 1964, 83–840).
- 21.
“Everything that makes up reality on the stage - the playwright’s text, the actor’s acting, the stage lighting – all these things in every case stand for other things. In other words, dramatic performance is a set of signs” (Honzl 1976, 74).
- 22.
The self-selected title of Stoppard’s lecture, The Text and the Event, reveals that he well understood that the script – the dramatic text – is distinct from the performance, the performance text.
- 23.
The author remembers this statement from an interview of a playwright on National Public Radio several years ago. Efforts to track down the particulars have been, unfortunately, unsuccessful.
- 24.
Erika Fischer-Lichte captures the concept of the play as evanescent event in this way:
A further important feature of theater arises from this, the specific ontological state of theatrical performance: namely, its complete contemporaneity. Whereas I can observe pictures that were painted many hundreds of years ago, read novels that were written in times long past, I can only watch theater performances that occur today, in the present. I can, as Steinbeck fittingly puts it, only involve myself theoretically, and not aesthetically, with past theater performances. For the web of signs of the performance is indissolubly bound up with the actor who creates them, present only in the moment of their production. Nothing is changed by bearing in mind that some of the signs here – such as costumes, props, stage decor – outlast the performance. For what can endure are individual signs torn out of their context. but never the web of signs from which they originate. This cannot be handed down as tradition. (Fischer-Lichte 1992, 7)
Interestingly, then Judge of the New York Court of Appeals Benjamin N. Cardozo, in his Storrs Lectures at Yale University in 1920, described the trial in similar terms:
[P]ast decisions are not law. The courts may overrule them. For the same reason present decisions are not law, except for the parties litigant. Men go about their business from day to day, and govern their affairs by an ignis fatuus. The rules to which they yield obedience are in truth not law at all. Law never is, but is always about to be. It is realized only when embodied in a judgment, and in being realized, expires. There are no such things as rules and principles: there are only isolated dooms. (Cardozo 1921)
- 25.
It is not a peculiarity of the criminal trial as theater that the dramatic text is not always fully performed. For example, a comparative analysis of two productions of Thomas Beckett’s Krapp’s Last Tape, which observes that the performances of each of the productions intentionally omitted different portions of the dramatic text, is set out at pp. 162–168 in Theatre As a Sign-System (Aston and Savona 1991).
- 26.
In the formal theater of the criminal trial, the announcement of the verdict is a salient part of the performance. In the real theater of the criminal trial, the announcement of the verdict comes in the aftermath of the performance; it is, in an important sense, a commentary on the quality of the competing performances.
- 27.
- 28.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial… (US Constitution 1791, Amend VI.).
- 29.
See Pierce (1931, 163).
- 30.
See Pierce (1935, 73).
- 31.
Res ipsa loquitur:
The doctrine providing that, in some circumstances, the mere fact of an accident’s occurrence raises an inference of negligence so as to establish a prima facie case. (Garner 1999)
- 32.
Courts have long understood the potential for prejudice by demonstrative acts by spectators at trial, for example, Moore v. Dempsey (1923) (murder trial; angry, shouting spectators inside and outside the courtroom); White v. State (1933) (manslaughter trial; widow shouting form spectator area); State v. Gevrez (1944) (murder trial; mother of deceased loudly weeping); Cartwright v. State [86] (manslaughter trial; applause for prosecutor). A number of courts, however, as many courts do in instances of potentially prejudicial visual matters, do not hold that a mistrial must be declared when demonstrative acts occur. For example, State v. Killian (1915) (murder trial; applause for prosecutor; defendant did not show that jurors were prejudiced); State v. Dusenberry (1892) (rape trial; applause for prosecutor; trial judge gave curative instructions); Doyle v. Commonwealth (1902) (assault & battery trial; applause for prosecutor; spectators reprimanded). An especially relevant case in point is State v. Franklin (1985), a trial for homicide during which, while the accused was on the witness stand, the mother of the deceased screamed four times in rapid succession, “He killed my son.” Although the Kansas Supreme Court held that there was no prejudice to the accused in the particular circumstances of that trial, the Court observed that, in a proper case, exclusion of even a highly interested spectator engaging in demonstrative acts can validly be done.
- 33.
It also is a violation of the rules of professional ethics: “A lawyer shall not … [i]n trial … state a personal opinion as to … the guilt or innocence of an accused …” (American Bar Assoc. 1998, Rule 2.4(e)).
- 34.
Just as the Bible passages brought into the jury room in People v. Harlan (2005), carry considerable weight because of the authoritative status of the Bible in the culture of the United States.
- 35.
The argument for vengeance is grounded in the cosmology of Communality. In the noteworthy murder trial of the English au pair Louise Woodward in Massachusetts in 1997, the prosecutor offered an implicit argument for vengeance, expressly grounded in the cosmology of Communality. As discussed in Transferring Blame (Douglas 1995), it seems to be clear that, in reaching a verdict of guilt, the jury engaged in what was in effect the scapegoat ritual.
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Cases Cited
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Brion, D.J. (2014). The Criminal Trial as Theater: The Semiotic Power of the Image. In: Wagner, A., Sherwin, R. (eds) Law, Culture and Visual Studies. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-9322-6_16
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