The Trial as Hermeneutic: A Critical Review

Abstract

The idea that the criminal trial is not constituted around normative approaches that prescribe its form and scope remains controversial. Normative approaches not only indicate what the trial ought to ‘look’ like, but will prescribe those individuals who are protected by the criminal trial, and the nominal rights afforded to them. These rights might be protected in an agreed or common process summarised in terms that prescribe the limits of the normative process. The right to a ‘fair trial’, due process or procedural fairness each ascribe a framework of rules and principles that operate within and constitute the given normative context, specifically the adversarial criminal trial. The problem is that such perspectives omit several agents relevant to justice, including victims and the community, and does not account for the genealogy of the trial as transformative or discursive. Today, there is increasing concern over the varying scope of the criminal trial, seen in the emergence of problem-solving courts, courts of therapeutic justice, summary process, pre-trial process and agreements, out of court processes, applications for control orders,¹ and the modification of conventional adversarial processes, including the role of the jury, the law of evidence, and the introduction of victims into trial and sentencing proceedings.