Download A Theory of the Trial. by Robert P. Burns PDF

By Robert P. Burns

Anyone who has sat on a jury or a high-profile trial on tv frequently involves the belief trial, rather a legal trial, is known as a functionality. Verdicts look made up our minds as a lot through which legal professional can top hook up with the hearts and minds of the jurors as via what the facts may possibly recommend. during this occasion of the yank trial as an outstanding cultural success, Robert Burns, an ordeal legal professional and a knowledgeable thinker, explores how those felony complaints result in justice. The trial, he reminds us, isn't limited to the neutral software of criminal ideas to authentic findings. Burns depicts the trial as an establishment making use of its personal language and forms of functionality that raise the certainty of decision-makers, bringing them involved with ethical assets past the boundaries of law.

Burns explores the wealthy narrative constitution of the trial, starting with the attorneys' beginning statements, which identify opposing ethical frameworks within which to interpret the facts. within the succession of witnesses, tales compete and are held in stress. at some point soon in the course of the functionality, a feeling of the best factor to do arises one of the jurors. How this occurs is on the middle of Burns's research, which pulls on cautious descriptions of what trial legal professionals do, the principles governing their activities, interpretations of tangible trial fabric, social technology findings, and a vast philosophical and political appreciation of the trial as a special car of yankee self-government.

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These rich narratives will ideally be “vivid and continuous dreams”57 that describe human motives, intentions, and actions of which there could in principle be no testimony in the language of perception. 59 If the jury’s task were solely to find the facts to which the instructions were to be applied, it would seem that these two powerful rhetorical devices would never have evolved to their present shape. Their presence in the trial suggests that the Received View has captured only a portion of the normative resources available at trial.

The very story of “what happened” is determined in part by a judgment about what is likely to be done in response to one or another version. ”21 Facts are, to this limited extent, purposes. After the initial interview with a client, a lawyer will set about the process of factual investigation. This is guided most generally by both strands of the double helix. 22 He will also seek to gather evidence—testimonial, documentary, or physical—that directly supports the theory and theme of the case, concretely presented in opening statement, of which he or she actually hopes to convince the jury, the primary finder of fact.

Most cases begin with a client interview, typically in three stages. The first is explicitly practical: the lawyer asks the client a set of open-ended questions to determine how he defines the problematic situation in which he finds himself and what resolution he seeks. 16 Finally, the attorney begins to ask specific questions that serve to test the viability of possible factual theories that may form aspects of a unified theory of the case. 17 There are limits on the stories the lawyer may tell. The possible narratives are constrained, with increasing concreteness, by (1) the criminal laws against client perjury and attorney subornation of perjury and disci14 I will not say “pressure” the minority.

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