Washington & Lee Emeritus Professor of Law Denis J. Brion recently published a chapter in Anne Wagner and Richard Sherwin’s Law, Culture and Visual Studies. The chapter is entitled The Criminal Trial as Theater: The Semiotic Power of the Image. Here is the 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 court room, 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.