LAWRENCE M. FRIEDMAN*
This is a brief exploration of the world of the sensational trial.1
is an exploration of the sensational common law trial, and mostly as it was and
is in the United States, with a few examples from England and other societies
thrown in as well.
The common law trial can be quite a dramatic event. It can be dramatic in
a quite literal sense: trials are, or can be, a kind of stage-play, with a definite
story or plot—usually, in fact, two stories or plots, which are in sharp contrast
to each other—and a suspenseful and exciting ending, when the jury files into
the room and announces its verdict. The principle of orality is one of the keys
to the drama of the common law trial. Unlike the classic civil law trial, in
which judges and other officials shuffle documents and papers, the common
law trial has traditionally been an open and public event; moreover, its
procedures put enormous stress on the spoken word. We all have a vivid
mental picture of these trials: the witnesses, sitting to the side of the judge; the
two lawyers, cross-examining witnesses sharply, then arguing in front of judge
and jury; the oral instructions to the jury; and the final, climactic scene, when
the jury announces to the world a judgment of guilty or innocent.
This basic shape of a big criminal trial is familiar to everybody in our
society. It is familiar because the trial is ubiquitous in popular culture.
Criminal justice, in the broadest sense, is the staple of thousands of books,
- I want to thank Andrew Shupanitz and David Oyer for their helpful research.
- There is surprisingly little general literature on these trials, exceptions include ROBERT
A. FERGUSON, THE TRIAL IN AMERICAN LIFE (2007) and RICHARD L. FOX & ROBERT W. VAN
SICKEL, TABLOID JUSTICE: CRIMINAL JUSTICE IN AN AGE OF MEDIA FRENZY (2001). I should
mention, too, MARY S. HARTMAN, VICTORIAN MURDERESSES (1976). The subtitle of this book
is worth citing: “A True History of Thirteen Respectable French and English Women Accused of
Unspeakable Crimes.” Id. Treatments of media coverage of trials are also valuable, examples
include the Fox and Van Sickel book mentioned above and RAY SURETTE, MEDIA, CRIME, AND
CRIMINAL JUSTICE: IMAGES, REALITIES, AND POLICIES (3d ed. 2007).
Of course, if you added together all the books and articles about particular headline
trials, such as Lizzie Borden, Sacco and Vanzetti, and the rest, you would end up with a truly
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magazine articles, plays, movies, and television shows. It would be impossible
to count how often, on television, for example, the focus of a show is a
criminal trial (or how often shows have a criminal trial as part of the story
Of course, trials in real life come in many shapes and forms. There are
civil trials and criminal trials. Some civil trials are extremely significant, for
all sorts of reasons; massive tort cases, for example, arising out of huge class
actions and asking for damages in the billions of dollars; or, once in a while, a
sensational divorce case, or a will contest that piques the public interest. On
the whole, however, civil trials do not usually catch the eye and ear of the
public. I will confine myself, in this paper, to criminal trials.
Criminal law—criminal justice—performs a number of functions. The
criminal justice system is a complex social system. It includes the criminal
law itself—the codex of rules that label certain actions and behaviors as wrong
and harmful—anything from overtime parking to serial murder. The rest of the
system, from the police to the gas chamber, is more or less geared to catch and
deal with those who violate the criminal code. Most of the work of the
criminal justice system is quite unobtrusive. Actual trials are only a small part
of the system, and big trials an even smaller part. Probably more than ninety
percent of all criminal trials are cut and dried, and nobody outside of the
defendant, the victim, and their families much care. Most trials are, in a way,
nasty and short; they last only a day or two from start to finish. Only a handful
take days or weeks or months, and play themselves out in the blare and glare of
publicity, in courtrooms crowded with visitors. Only a handful get noticed in
the newspapers and perhaps on TV news; a tiny fraction of these are actually
televised. But it is these big trials, these headline trials, which form the subject
of this paper.
As we said, most criminal cases never get to the stage of a trial. This is
even true of felonies—of serious crimes. Plea-bargaining disposes of them.
Prosecution and defense strike a deal. The defendant pleads guilty in exchange
for a lighter sentence, or no sentence, or some other benefit. No trial takes
place. This accounts for more than ninety percent of the felonies in some
Generally speaking, we live in the age of the “vanishing trial.”3
In fact, trials have been doing their vanishing act for more than a century. Not
that big, full-scale trials have ever been common—trials with complex voir
dire, impassioned arguments before the jury, vigorous cross-examination.
- There is a large literature on plea bargaining. On its origins, see LAWRENCE M.
FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 390–93 (1993); GEORGE FISHER,
PLEA BARGAINING’S TRIUMPH: A HISTORY OF PLEA BARGAINING IN AMERICA 223 (2003).
- See Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters
in Federal and State Courts, 1 J. EMPIRICAL LEGAL STUD. 459 (2004). See also ROBERT P.
BURNS, THE DEATH OF THE AMERICAN TRIAL (2009).
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Before the age of the plea bargain, most criminal cases did indeed go to trial;
but the “trials” were short, routine, even slapdash.4
Juries were selected in a
The same panel sat in on a whole series of cases.6
The typical “trial”
perhaps lasted an hour or two. And in most of these trials, no lawyer appeared
for the defendant.7
In the aggregate, these routine trials may be of the highest social
importance. They are the heart and guts of the criminal justice system. The
big trials are few in number, but this does not mean that they are not
significant. They are the only ones which break into the daily press. They
make the front page, or the evening news on television. They attract the
attention of the mass media, and through the media, the attention of the general
public. There have been trials of this sort for a long time, in our country and in
other common law countries. It is impossible to get an accurate count of “big”
trials, or indeed to mount any count at all, or even to define them. Their
notoriety varies. Some trials make headlines in Wichita, Kansas, but are
unknown outside of this community. Others, like the trial of O. J. Simpson, set
the whole country ablaze; and resonate even beyond the borders.8
For want of
a better term, and a better definition, I will simply refer to these trials as
headline trials and define them crudely as trials that attract major public
attention. “Major public attention” means, basically, newspaper and other
media coverage—including books, movies, TV shows, and the like.
Today, many of these high-profile trials fall into a category which Fox and
Van Sickel call “tabloid justice.”9
They have a certain sensational character:
they fascinate the public, they launch a thousand conversations, they produce
acres of film, print, and comment. Other aspects of the law, no matter how
important, can hardly compete. It is fair to ask, why do these trials cast such a
spell? And, furthermore, what is their significance in society? Or, to put it
another way—or to ask a somewhat different question—exactly what is their
They do, of course, have a message. Or rather messages. But those
messages are complex, various, and change greatly over time. Originally, big,
showy trials tended to serve political or didactic purposes—the message
justified the medium. Now, more and more, trials rise to the surface for no
other reason than that they captivate the public. Their value, basically, is as
- Lawrence M. Friedman, The Day Before Trials Vanished, 1 J. EMPIRICAL LEGAL STUD.
689, 692 (2004).
- A great deal has been written about the Simpson case. See, e.g., THE O.J. SIMPSON
TRIALS: RHETORIC, MEDIA, AND THE LAW (Janice Schuetz & Lin S. Lilley eds., 1999).
- FOX & VAN SICKEL, supra note 1.
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public entertainment. And, more and more, the study of these trials is a study
not so much of the law, as of the mass media and their role in society. The
media propagate these trials. In some sense, today, they create them.
The modern headline trial is, in a way, one of the few survivors of a
phenomenon that was once much more widespread. Criminal justice and the
punishment of criminals were at one time public in the most literal sense. In
colonial America, punishment of crime—law enforcement—was always open
to the eyes of the community.10 Whipping was one of the most common ways
to punish the guilty, and men and women were always whipped in public.
Colonial law also possessed a rich stock of punishments that made use of
public shame and scorn—sitting in the stocks, for example. Often, too,
punishment was public in another sense: offenders carried with them, for the
rest of their lives, visible signs of their crimes and punishments. Everyone has
heard of the scarlet letter. This was not something Nathaniel Hawthorne
dreamed up: for example, under a New Hampshire law of 1701, adulterers
were to wear “for ever after . . . a Capitall Letter: A: . . . Sewed upon their
Upper Garments.”11 Punishment for a burglar, under the Laws and Liberties of
Massachusetts in 1648, was branding “on the forehead with the letter (B).”12 If
the burglar committed the crime on a Sunday, “he shal for the first offence
have one of his ears cut off;” for a second offense, “he shal loose his other
Actual trials were significant as ritual and drama; punishment even more
so. Hanging a condemned man was a mighty public event. Thousands could
and would gather to see the criminal launched into eternity. Clergymen
delivered relevant sermons on the Sunday before an execution. Some of these
were printed and distributed. The last speech of the condemned man was
another popular form of literature in the eighteenth century. More than thirtyfive of these survive.14 Supposedly, these speeches were delivered at the
gallows itself, in the very shadow of death, though in all probability they were
mostly written beforehand, by ministers, jail officials, or the doomed man
himself.15 The texts were meant to be enlightening, moralistic. So, for
example, “poor Julian,” executed for murder in 1733, confessed to
drunkenness and Sabbath-breaking, the start of a slippery slope which led
- See FRIEDMAN, supra note 2, at 36–41.
- LAWS OF NEW HAMPSHIRE: PROVINCE PERIOD, 1679–1702, at 676 (Albert Stillman
Batchellor ed., 1904).
- THE BOOK OF THE GENERAL LAWES AND LIBERTYES CONCERNING THE INHABITANTS
OF THE MASSACHUSETS (1648), reprinted in THE LAWS AND LIBERTIES OF MASSACHUSETTS 4
- Id. at 4–5.
- DANIEL A. COHEN, PILLARS OF SALT, MONUMENTS OF GRACE: NEW ENGLAND CRIME
LITERATURE AND THE ORIGINS OF AMERICAN POPULAR CULTURE, 1674–1860, at 20 (1993).