ISSN 1062-7421
Vol. 12 No. 2 (February 2002) pp. 102-105.

A THEORY OF THE TRIAL by Robert P. Burns. Princeton: Princeton University Press, 1999. 247 pp. Cloth $45.00. ISBN: 0-691-00727-6. Paper $17.95. ISBN: 0-691-08980-9.

Reviewed by Lief Carter, Department of Political Science, The Colorado College.

A churlish (or perhaps merely lazy) urge tempts me to write a one-line review of this book: "Read Burns or be forever impoverished." This book is unquestionably the best translation of the trial experience into academic language I've ever read, but Burns gives us much more than "a theory of the trial." In arguing for his conclusion that the democratized jury trial is "one of the greatest achievements of our public culture" (p. 9), Burns' phenomenological analysis rescues nouns like "truth" and adjectives like "real" from the unfair accusation that post-modernism has killed them off. The trial, in short, applies THE set of universal conditions in which "truth happens."

In an early Robertson Davies novel, a sophisticated character in charge of the education of a naive country girl tells her that (I paraphrase): "Experience is the wine; art is the brandy we distill from it." Robert Burns, a professor at Northwestern University's law school and an experienced trial attorney, distills his trial court experiences most artfully. However, his brandy bears no resemblance to the memoirs of great trial lawyers. This is a philosophical book, and a book about philosophy, through and through. A clear majority of all Burns' index entries refers to those who have pondered the ageless problem of achieving collective knowledge and wisdom. The index ranges from Thucydides, Plato and Aristotle through Edmund Burke and Mikhail Bakhtin to Kenneth Burke, Iris Murdoch, Marianne Constable, and Charles Taylor. By its end, this book makes the case-a case that I can best describe as "thrilling"-that the narrative, performative, contextualized, contingent, contested, and inescapably ethical dynamics of a well-conducted jury trial describe at last the conditions of "truthfulness" that 2500 years worth of philosophizing have sought. Moreover, Burns pulls this off with minimal resort to jargon. Any bright and motivated college or graduate student can
follow the argument.

In the first of his eight chapters, Burns lays out "The Received View of the Trial." The received view holds that the trial operates within a set of known rules and provides an institutional process for determining accurately the "true" facts of a case within those rules. "[T]he jury constructs its version of what occurred without recourse to value judgments not legitimized by the Rule of Law" (p. 18). The rules of evidence determine logical relevance and materiality. By the end of his third chapter, Burns has completed his thorough debunking of all aspects of the received view. However, he begins the debunking in chapter one by describing how the
received view fails on its own terms. For example, jury verdicts are general; they report a singular conclusion, not what in fact happened. Officials and the public have no power to scrutinize the rationality of the juror's mental processes. Particularly in

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civil cases, judges are not authorized to overturn jury verdicts except in cases of blatant disregard of evidence. The trial contains no process for determining if the jurors followed judicial instructions (pp. 26-31).

In his second chapter, "The Trial's Linguistic Practices," Burns describes what trial lawyers do and, more important, know that they do. They know they must tell a dramatic story. They know that to tell the story they must perform it. And while "[t]hey derive some satisfaction from the purely Promethean joy that attaches to effective performance., their deeper satisfaction comes from participating in an important practice . that . serves to realize the 'ethical substance' of a community" (p. 35). The lawyer must create an ethical framework within which her version of the facts seems plausible. Since opposing counsel will do the same, the trial can
impose severe restrictions on the kinds of narratives that a lawyer dares to tell. The contest demands coherent, commensurable, and "commonsensical" stories, but it also demands that these stories mediate among the needs of the client, official norms, and "our sense of public identity and purpose" (p. 47).

Readers who lack legal training will follow Burns easily because he weaves into chapters two and three lucid descriptions of the standard rhetorical moments in a trial, e.g., the opening statement, direct and cross examination, and closing argument in chapter two, and "the trial's constitutive rules," primarily the rules of ethics and rules of evidence in chapter three. Fortuitously for beginning readers, Burns must cover these basics in order to show, step by step, how each stage, far from narrowing down the search for truth, adds new uncertainties and new indeterminacies. Each new element creates new performative possibilities. Thus, "[A]s trial
lawyers say, 'Every fact has two faces'" (p. 91). The "fact" that a defendant charged with a shooting had been drinking heavily before the shooting might go to show lack of self control, but it could also suggest "insufficient coordination to aim and fire the lethal shot" (p. 91, n.58). Chapter four provides a performative and strategic analysis of the opening statements in a murder trial in which Burns had, some years ago, participated.

By this halfway point in the book, Burns seems to have made a convincing case that phenomenological and linguistic forms of inquiry easily trump conventional social science methods of empirical inquiry. Just as a mastery of baseball statistics and a detailed analysis of the sequence of harmonic progressions in the "chorale" movement of Beethoven's 9th Symphony do not resemble the experience of playing or watching baseball or playing or hearing Beethoven, so our conventional social science understanding of a phenomenon like the trial do not and cannot replicate its political and social meaning.

However, Burns' last four chapters in fact transcend any bright distinctions between the methods of linguistic analysis and empirical causal modeling. He is with Wittgenstein when Wittgenstein holds that our "craving for generality" is unhelpful (p. 125). Burns quotes Wittgenstein approvingly: "I want to say here that it can never be our job to reduce anything to anything or to EXPLAIN anything. Philosophy is purely descriptive" (p. 125, n. 3), but Burns digs deeper. The conditions of truth finding in a trial may describe truth-finding elsewhere. Chapter five reminds us of the basic features of a trial, features "almost too basic to be noticed" (p. 124).

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Trial rules only permit the lawyers to address, and the jurors to reflect upon, things specific and concrete. Unlike a in a legislature, attention focuses exclusively upon the existence of concrete past events. Within its rules, trials are deeply transparent; they can invade virtually every privacy, and every embarrassing question can be asked. Finally, the jury must decide without the help of any factual precedents. The case must be decided only on its unique facts. Like the evolving plot developments in a play or film, these limiting conditions intensify meaning and significance for jurors at the same time they create suspensions of judgment. "[T]he
theatrical nature of the trial proceeding serves to communicate nonverbal information, redirect aggression, encourage impartiality and induce creativity in judgment" (p. 137, n. 45). Burns completes the chapter (pp. 141-54) by canvassing the literature of empirical jury studies, particularly Kalven and Zeisel's THE AMERICAN JURY (1966). The best empirical descriptions of juries are "striking and consistent with" Burns' phenomenological study, presumably because these investigators bring the same "elevated intelligence to their work" as do jurors (p. 154). The good juror and the good investigator both follow Wittgenstein's admonition, "[D]on't
think, but look!" (p. 155).

The remaining three chapters are so rich that a relatively short review should attempt no more than to whet appetites. The sixth chapter bears the title "Thinking What We Do" (from Hannah Arendt), but it might better have taken its title from its epigraphic quote from Heraclitus, "justice is strife" (p. 155). The trial is a competitive contest, a contest of narratives. Like an organized game, the trial maintains the formal equality of contestants. However, the contest matters most deeply because it requires its judges each to confront and explore his or her own public identity and allegiance. Burns quotes Ronald Beiner, "What we are interpreting is ourselves, and the past and present social worlds that make us what we are" (p. 174).

Chapter seven, "The Two Sides of the Trial Event" begins with an epigraph from Wynton Marsalis, "Everything is always going on, all of the time" (p. 183). It proceeds as an extended essay on Iris Murdoch's statement that "Realism, whether that of the artist or of the agent, is a moral achievement" (p. 184). Because we humans possess the kind of intelligence that enables us to comprehend language at all, we possess a "nonformal" intelligence that, under the right influences and constraints, can judge reflectively and can achieve common sense wisdom and interpretive understanding (pp. 211-219). In the final chapter, "The Truth of Verdicts," Burns sums up why "the contemporary trial," because it is severely constrained, because it is normative, because it is dominated by a hybrid of
contested languages, and because it is theatrical, "comprises the practices best designed to achieve truth-for-practical-judgment" (p. 235).

I trust this review has shown, at least indirectly, that Burns has mined an exceptionally rich trove of philosophical resources. However, none of Burns' conclusions "follow from" any philosophical source or point of view. (That would violate Wittgenstein's command that we stick to description!) Rather, and this is perhaps the book's greatest gift, Burns shows how the sweep of Western philosophy confirms what his experiences have taught him. Burns raises our hope that common threads of wisdom unite the western philosophical tradition. Those threads are practical, contingent, and, above all, free of generalities and essences. We attain both

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practical and normative truthfulness WHEN we live in communities that are dramatic and normative, contested and conflicted, emotionally engaging, and above all are judged impartially.

The book does leave us with the obligation to fill one obvious gap. Standing alone, the texts of rules have no practical significance. Even within the socially constructed constraints of a trial, rules only provide performative possibilities. "It is not just, as Kant reminds us, that there are no rules for the correct application of rules.; it's that there are no rules at all" (p. 170). Burns leaves to us the job of reinforcing his argument by describing the "lawlessness" of decision-making in situations
that the conditions of a trial do NOT constrain. Of course we have readily at hand many examples: BUSH v. GORE, the "Enron/Andersen" culture, and the Bush administration's willful disregard of many constitutional protections in the wake of 9-11. This book originally appeared in hardback in 1999, before these horribles befell us. We can sympathize with Burns' desire not to darken his optimistic argument, but the argument does obligate us to confront its dark side, a dark side chillingly confirmed by current events.

Finally, readers who are not inclined to buy any of this line of argument should at least peruse A THEORY OF THE TRIAL to enjoy its many delicious quotations from its wealth of sources: Clifford Geertz, Martha Nussbaum, Karl Llewellyn, Keats, Hannah Pitkin, Norman Maclean, Thomas Kuhn, and Dr. Johnson, to name only a few. I'll close with one quotation, chosen almost at random, from Giambattista Vico (p. 34):

"The actions of men cannot be measured with the straight ruler of understanding, which is rigid.. The imprudent scholars, who go directly from the universally true to the singular, rupture the inter-connectedness of life. The wise men, however, who attain the eternal truth by the uneven and insecure paths of practice, make a detour, as it is not possible to attain this by a direct road."

Please read this book.


Kalven, Harry, Jr., and Hans Zeisel. 1966. THE AMERICAN JURY. Boston: Little, Brown.


Copyright 2002 by the author, Lief Carter.