I’m in today’s Wall Street Journal (sub – $) with a generally favorable review of Sadakat Kadri’s new book “The Trial: A History from Socrates to O.J. Simpson“. A few excerpts from the review:
By 1880 the criminal trial as an institution had become standardized around the West to the point that readers on many continents found little that was unfamiliar in Dostoevsky’s account of the murder proceedings against Dmitri Karamazov. The lawyers popping up with objections, the witness box and table of evidentiary exhibits, the sensation-seekers filling the gallery — all were as common to the courthouses of San Francisco or Paris as to those of late-czarist Russia. Go back a few centuries to premodern Europe, though, and the forms of justice can seem to our eyes indescribably strange: trial by ordeal, by combat or by compurgation (the collecting of oaths from supporters) and so forth.
And yet the march of progress is not always quite so apparent. We may smile at the premodern practice of putting a pig or haystack on trial for having caused harm to a human being, yet our contemporary law abounds in forfeiture and pure-food cases with headings like United States v. 900 Cases of Peaches (1975) and United States v. One 1967 Pontiac Bonneville Convertible (1973)….
The continuities between past and present are many. Battles over jury selection, so typical today in big trials, propel the plot of Burnt Njal, a medieval Icelandic saga involving arson-murder and bloody retribution. The tendentious interpretation of ambiguous marks on witnesses’ bodies — a hideous aspect of the witch hysteria of the 16th and 17th centuries — reappears in the child-abuse prosecutions of our own era. Denunciation boxes, into which citizens dropped accusing notes in Inquisition times, popped up in police stations across Russia in the 1930s. Hype-fraught celebrity trials? They date back pretty much forever and serve useful purposes, such as calling attention to social problems that would never stir public debate if left abstract….Regarding the emotionally manipulative style of some courtroom champions, Mr. Kadri finds plenty of precedent. He quotes the 1897 Tennessee Supreme Court, which said that “tears have always been considered legitimate arguments before a jury. Indeed, if counsel has them at his command, it may be seriously questioned whether it is not his professional duty to shed them whenever proper occasion arises.”
As for glittering but empty turns of courtroom rhetoric, Johnnie Cochran was just building on a tradition that goes back to Shakespeare’s time. “Elizabethan schoolboys,” Mr. Kadri writes, “were commonly taught adoxography, the art of eruditely praising worthless things….The first English treatise on the subject appeared in 1593 and contained essays celebrating deformity, ugliness, poverty, blindness, drunkenness, sterility, and stupidity. Its preface claimed that it would be particularly useful to lawyers.”
Read the whole thing here if you are a subscriber, or go out and buy a copy of the Journal. Incidentally, the Journal’s editors had to drop a couple of paragraphs of my original review draft for space reasons. Here they are:
* On the centuries-old practice of digging up the rotting remains of deceased persons to make them stand trial on criminal charges, a judge named Pierre Ayrault observed in 1591 that after all it is natural to regard the reputations of the dead as of continuing interest — wouldn’t we want to free a wrongly accused decedent from suspicion? That still didn’t explain why it would be needful to exhume a corpse, so Ayrault suggested a painting of the accused be hung in court instead.
* On the differences, some apparent and some real, between American and British justice: “Plea bargaining has never been given legal recognition in England. Barristers nevertheless haggle over pleas and judges give ‘indications’ of their likely sentences almost every day in almost every court of the land.” On the other hand, some differences are very real indeed, as with British judges’ power to summarize for jurors the weight of evidence in a case: “The summing-up invariably pays lip service to the principle of jury independence — typically, by ending a devastating criticism with the observation, ‘It is, of course, entirely a matter for you.'”
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