Letter from America: Media on Trial

Signet Magazine

Both lawyers and the public at large tend to think of legal proceedings as walled off from everyday discourse because of things like their formal trappings and rules of evidence and procedure. And the fact that many items in a trial record are intended for and perhaps intelligible only to lawyers (pleadings, objections, motions, and the like) heightens the sense of distance between the legal and the lay. As a consequence, although these materials can be assembled in a narrative fashion (in, for instance, the written opinion of an appellate court), the result will constitute a purely legal narrative.

But what happens in the courtroom is not always frozen within that space because legal narratives can escape their containers and assume a non-legal shape. One way of thinking about this phenomenon is by recalling Robert Ferguson’s concept of a “continuum of publication” - i.e., that although a criminal case may begin with an indictment, it may end with any manner of publication, things like newspaper reports, historical accounts or even fictionalizations. These extra-judicial publications show how different groups interpret legal narratives (whether to make sense of them or to create scandalous headlines). In contrast to the past, though, subsequent publication is increasingly given over to simultaneous publication in “media” trials - trials that are particularly salacious, involve attractive or famous figures, and - most important - are relatively long.

The Casey Anthony and Amanda Knox trials provide casebook studies: young, attractive defendants accused of murder in highly suspicious (yet nonetheless ambiguous) circumstances, circumstances infused with all the sex, drugs and wild parties that any voyeur could hope for. Interestingly, each was convicted by the media, yet ultimately released by the courts. None of this is to suggest that media trials are without precedent (think of the Dreyfus affair), but there is something about the immediacy of reporting and commentary that is new to our age.

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