evolving genre

LAWRENCE M. FRIEDMAN*
INTRODUCTION
This is a brief exploration of the world of the sensational trial.1
Mostly, it
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.
  1. 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
    enormous list.
    SAINT LOUIS UNIVERSITY SCHOOL OF LAW
    1244 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 55:1243
    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
    line).
    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
    jurisdictions.2
    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.

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  1. 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).
  2. 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).
    SAINT LOUIS UNIVERSITY SCHOOL OF LAW
    2011] FRONT PAGE: NOTES ON HEADLINE TRIALS 1245
    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
    hurry.5
    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
    message?
    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
  3. Lawrence M. Friedman, The Day Before Trials Vanished, 1 J. EMPIRICAL LEGAL STUD.
    689, 692 (2004).
  4. Id.
  5. Id.
  6. Id.
  7. 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).
  8. FOX & VAN SICKEL, supra note 1.
    SAINT LOUIS UNIVERSITY SCHOOL OF LAW
    1246 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 55:1243
    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
    ear.”13
    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
  9. See FRIEDMAN, supra note 2, at 36–41.
  10. LAWS OF NEW HAMPSHIRE: PROVINCE PERIOD, 1679–1702, at 676 (Albert Stillman
    Batchellor ed., 1904).
  11. THE BOOK OF THE GENERAL LAWES AND LIBERTYES CONCERNING THE INHABITANTS
    OF THE MASSACHUSETS (1648), reprinted in THE LAWS AND LIBERTIES OF MASSACHUSETTS 4
    (1929).
  12. Id. at 4–5.
  13. 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).

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