The Trial



Prof. Martha Umphrey Office hours:

207 Clark Wednesday 2-4

mmumphrey@amherst.edu and by appt.

The Trial

LJST 07

Fall 2011

If media coverage is any evidence, it is clear that legal trials capture, and have always captured, the American imagination. Trials engage us aesthetically and politically by dramatizing difficult moral and social predicaments, and by offering a public forum for debate and judgment. They also “perform” law in highly stylized ways that affect our sense of what law is and does. This course will explore the trial from a number of different angles: as an idea, as a legal practice, and as a modern cultural phenomenon. What does it mean to undergo a “trial”? How do various historical trial arrangements compare with our contemporary adversarial model in form, purpose, and effect? What are the contours of modern 6th Amendment jurisprudence, and how do they relate to the idea that the trial is an arena of public performance and storytelling? What narrative and structuring roles do trials play in literature and film? How do popular renderings of trials in imaginative texts and the media compare with actual trial practice, and perhaps encourage us to sit in judgment on law itself?

Course requirements:

- two essays

- final exam

- occasional in-class writings

Required texts:

Aeschylus, The Oresteia (trans. Fagles)

Edward Larson, Summer of the Gods

Hannah Arendt, Eichmann in Jerusalem

Franz Kafka, The Trial (trans. Muir)

Books can be purchased at Amherst Books, 8 Main Street (on the far side of the town common); multiliths are available at the LJST office, 208 Clark House (ext. 2380).

Films are available for streaming on the course website.

syllabus

** = books and films

I. Introduction: Trials as Performance

**Witness for the Prosecution

II. Origins and Paradigms

A. Ancient Trials: Violence, Politics, and Rhetoric

**Aeschylus, The Oresteia

Plato, “Apology of Socrates”

Loraux, “Of Justice as Division”

B. Trials as Tests

Hyams, “Trial by Ordeal”

Langbein, “Torture and the Law of Proof”

C. English Genealogy of the Modern American Trial

Green, “The Criminal Trial Jury: Origins and Early Development”

Berman, “Rats, Pigs, and Statutes on Trial”

Levy, “Inquisitorial versus Accusatorial Procedures”

** A Man for All Seasons

Langbein, from The Origins of the Adversary Criminal Trial

III. Topographies of the Modern Trial

** A Few Good Men

A. 6th Amendment Choreography

Right to Counsel

Gideon v Wainwright

Faretta v California

Right to Confront Witnesses/Prohibitions against Hearsay

White v Illinois

Giles v California

Right to a Fair and Public Trial

Gannett v de Pasquale

Craven v State

Waller v Georgia

Farmer, “Secret Trials and Public Justice”

B. Trials as Performance

**Larson, Summer of the Gods

**Inherit the Wind

Burns, from A Theory of the Trial

Hariman, “Performing the Laws”

Bennett and Feldman, “Storytelling in the Courtroom”

Tocqueville, from Democracy in America

Abramson, from We the Jury

**Twelve Angry Men

C. Anxieties, Critiques, and Alternatives

Finnegan, “Doubt”

Gewirtz, “Victims and Voyeurs: Two Narrative Problems in a Criminal Trial”

Pizzi, from Trials without Truth

Feeley, from The Process is the Punishment

Wiegand, “Why Have a Trial When You Can Have a Bargain?”

Braithwaite, “Repentence Rituals and Restorative Justice”

IV. Beyond the Courtroom

A. Trying the State

Walzer, from Regicide and Revolution

**Arendt, Eichmann in Jerusalem

**Judgment at Nuremberg

Minow, “Truth Commissions”

Hayner, “Truth Versus Justice: Is It a Trade-Off?”

B. Trials as Medium and Metaphor

**Kafka, The Trial

Clover, “Law and the Order of Popular Culture”

**Capturing the Friedmans

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