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A Theory of the Trial
A Theory of the Trial
Date: 31 January 2011, 12:46

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This book grew out of a long attempt to understand an epiphany, one I have experienced and that seems often to occur in American trial courts. In the course of trial there emerges an understanding of the people and events being tried that has a kind of austere clarity and power. This experience surprises and “elevates” the participants, including the jury. The grasp of what has occurred and what should be done seems to have a kind of comprehensiveness, almost self-evidence, of which it is extremely difficult to give an account. It involves factual and normative determinations of very different kinds. The evidence and legal doctrine do not together determine the result in any logical sense, there is considerable freedom at play, yet the best course is apparent. The certainty that emerges is often less about the accurate representation of a past event—what I will call a “screenplay”—than it is a kind of knowledge of what to do. Judgment as it occurs at trial is a kind of skillful performance of a particularly complex kind. And those in a position to know seem almost universally to agree that the level of performance, day in and day out, is very skillful indeed.


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