Reconstructing Reality in the Courtroom: Justice and Judgment in American Culture

Preface

This time in history has been called the information age. We talk about information overload, big data, technological innovation, Moore’s Law, aggregation engines and creative destruction. Despite the complexity of the information revolution and the pace of contemporary change, we are reminded that, now as before, one unchanging common human principle remains that we are homo narrans, the storytellers. Storytelling is so ubiquitous that its transcendent role in organizing and simplifying complex human activity is hard to overstate.

Beyond receiving attention in a number of academic fields and law, storytelling has generated considerable buzz of late in areas such as business, advertising, journalism and politics. Corporate storytelling has become the new way to reinvent companies and keep them nimble. It helps people on the inside communicate with each other, while finding ways to share dynamic ideas with various stakeholders on the outside, including investors, consumers, or victims of corporate negligence. Advertising has shifted from the mass media narratives of modern society to niche narratives that incorporate products and consumer experiences into personal lifestyle stories. These tales of good times, miracle cures, triumphs and bad buys are shared via social media with Facebook friends and with strangers over product rating sites. In journalism, the news business has fallen into crisis and disarray, and at the same time, there has been an explosion in new story forms, from citizens using mobile phones and social networks to report firsthand on events, to journalists being replaced by content creators (some human, and some machine) assembling stories from rich arrays of data. Politicians are often lauded or faulted for their ability to create an overarching narrative or being in control (or not) of the narrative.

Perhaps not surprisingly, the importance of narrative as the common method for understanding and sharing the subtle complexities of human life has become even more widely recognized in many academic fields since this book was first published in the early 1980s. A cursory search of Google Scholar for the topic narrative yielded more than two and a half million results at the time of this writing. Those books and articles spanned fields as different as anthropology, economics, cinema, literature, therapy, psychology, sociology, religion, epistemology, and popular explications of biology and physics, among others.

The importance of narrative in legal judgment has become even more recognized today than when we first wrote about it some three decades ago. A Google Scholar search for references to legal narrative and law and narrative resulted in over 500,000 entries, with most of those coming in the last fifteen years. In light of this explosion of interest, the time seems ripe for returning this book to a larger audience. Thanks to university libraries, the book never really went away, and has been cited steadily in the scholarly literature and by practitioners over this period. The early audiences for Reconstructing Reality in the Courtroom ranged widely over legal studies, the psychology of judgment, communication processes, linguistics, social constructionism, and qualitative methods. Despite being out of print for a number of years, the book still appears on syllabi for courses and seminars in law, legal anthropology and the history and sociology of law. In more recent years, citations have appeared in a number of books on legal practice and in law reviews, including Stanford, California, Virginia, Minnesota and Michigan, suggesting that our approach has found its way from the realm of theory into more practical venues. Just what do we offer to scholars and practitioners, alike?

A Theory of Legal Judgment

Part of this book offers a simple theory of what makes stories believable and what enables ordinary folks to connect them to the complex legal arguments and evidence presented in trials. The basic model of narrative judgment takes the core elements of narrative—the who, what, where, when, how, why—and shows how they are structured or linked together by a combination of facts and logic. These links may be well documented and clearly reasoned or undocumented and badly reasoned, or somewhere in between. Average people hear hundreds of stories every day, and learn over the course of a lifetime to focus on the ambiguities that undermine making sense of their truth, usefulness, or humor. We show how to diagram stories and establish their degree of ambiguity or doubt. In a series of simple experiments outside the courtroom, we find that there is little relationship between the actual truth of a story and the degree to which the story is believed to be true by an audience of random listeners not familiar with the teller. The relationship between the story and being accepted as true depends on the structural ambiguities linking the key elements of the narrative together. In daily life, we of course hope that people who tell us stories are inclined to tell us the truth, but in a society of strangers, truth is often held hostage by deception, trickery, demagogy and self-aggrandizement. Indeed, even in our close relations with romantic partners, children, business associates and friends, we may learn that important stories that we believed to be true were not.

The legal system of course is based on trying to fix these problems of trust and veracity by creating a system of rules and establishing criteria for holding those rules accountable to evidence. The goal is to enable judgment based on facts, and to restrict that judgment to a particular activity (e.g., a criminal act) that further enables precise empirical decisions to be made. Or at least these are among the ideals behind the legal systems found in many common law societies such as the United States. There are many layers of reality that can complicate these judgment processes. First, evidence is not always, or perhaps, even often, complete or compelling surrounding various key elements of a legal case. Second, the ideal of a trial by a jury of one’s peers entails people who have no special expertise in the law or firsthand knowledge of a particular case, and may hardly be peers in the sense of being equals or able to relate to a particular type of defendant. How do these jurors make a particular legal judgment? In our theory, stories become the layperson’s theory for mapping a set of particulars onto a set of legal rules and deciding how convincing the fit is.

While average people can generally translate the elements of a legal case into story terms (the defendant becomes the actor, the alleged crime becomes the central action, the relationship to the victim may reveal the motive, etc.), the evaluation of the evidentiary and logical linkages among elements of the story is often hindered by numerous practical problems. First, evidence is often incomplete or damaged. The murder weapon was never found. The time line putting the defendant and the victim together cannot be well documented. Many people look something like the defendant, and the only eyewitness was peering through a window from across a dimly lit street. These are of course the standard plot thickeners of detective novels and crime shows, but in this sense life often imitates art and these complications are not uncommon in real courtrooms.

Beyond this layer of factual ambiguity is another kind of challenge to sound legal judgment: drawing inferences from such incomplete or unreliable evidence depends on the conventional wisdom of people with different life experiences. In the ideal version of a jury of one’s peers, one’s peers would come from the same community or at least share a common set of life experiences. They would somehow know how things work in the world of defendants and victims. Yet in fragmented large-scale societies, juries are often not like the people being judged, and indeed, they are often selected against type to create particular sympathies or biases in favor of one side of a case or the other. Thus, bias may be introduced systematically whether in explicit terms such as racism, or in more subtle ways such as people simply not being able to relate to the life circumstances surrounding others in society.

Add to this the cases in which evidence was manufactured, buried, or contaminated in other ways, and we know both as scholars, practitioners and as everyday citizens that legal judgment is not sure. A recent discussion in popular media, for instance, has centered on the issue of confessions and the roles that narratives play in obtaining confessions.¹ A police detective recounts how he coerced a confession from a woman who it later turned out could not have been the person who committed the crime. He was convinced by her confession because she recounted details that only a person at the crime scene would have known. By chance, it turned out that he had videotaped the entire interrogation of several hours and when he reviewed the tape, he realized that, with one exception that had to do with what kind of Chinese food a person at the scene had eaten, he had given every detail to the woman who later used these details in her confession. He relates that it was the narrative in his mind that was so compelling that he did not even realize until much later how much he had distorted reality in order to bring the woman’s story in line with his. He explains that he was horrified when he realized that he provided the narrative to the woman through his questioning of her and has spent much of his life since arguing for the use of videotaped interrogations.

Whether videotaping interrogations will suffice, however, is in question as a result of another way that narrative plays into the use of confessions. A narrative apparently almost universally believed by police is that no one would confess to a crime they did not do. To the extent that this narrative is also believed by prosecutors, judges, juries and others involved in deciding criminal cases, the success of videotaped interrogations will depend not only on their potential to provide evidence that the confession details did not originate with the apprehended person, but also on their likelihood of casting doubt on the no one would confess unless they did the crime narrative.

Good narratives are compelling because they are simple, clear and unambiguous. They are so compelling that they produce inflexibility and an inability to see facts that may be right in front of you. This simple fact is illustrated by the story about the coerced confession, but has also been used in places such as investment banks where some banks have become very successful by learning to eschew client identity narratives, which enables the reproduction of past analysis formulas rather than paying attention to the specifics of each client and the current economic situation.²

In the end, many of these accounts from different areas of everyday life point to the same pattern: stories that evade or distort some of the evidence may be more compelling than ones that seem ambiguous due to the complexities of everyday life—a slip of a witness, a character flaw of a defendant, or events common to an unfamiliar lifestyle from another subculture. When these lacunae enter the justice process, the basis of judgment rests more on the crafting of the narrative in a case than on the simple dictates of fact. The ability of the legal profession to understand the power of narrative and develop the ability to cast doubt on strongly held formula narratives is essential to achieving justice.

Our theory explains both how sound legal judgment occurs and how error and bad judgment enter the proceedings. We also offer practitioners a straightforward model for constructing cases. This is not intended to show how cases can be manufactured whole cloth without regard to evidence, but how the best cases can be fashioned given the limitations of the evidence and vagaries of law as well as what needs to be done to break the grip of a compelling narrative that does not fit the facts.

What surprised us when we conducted the initial research for the book was how little lawyers and judges understood about the role of narratives, both because there was not then much attention paid to this aspect of the law, and because the legal process was cloaked in layers of objectivity and science-like myth and rhetoric. Indeed, we did not initially walk into courtrooms or read transcripts with a theory of storytelling in mind. The role of narrative in trials was hiding in plain sight, and it took many observations and discussions between us, and with our many informants before it came into clear focus. In the ensuing years, growing numbers of scholars and practitioners have come to see the key role of storytelling as well. Indeed, an early stimulus for getting the book back into print was a flurry of emails from lawyers around the country who had heard about the book from trial consultants, and who wanted to read it and adapt the models for themselves. It seems that narrative is no longer hiding in plain sight. Stories are now being embraced as our common social denominator. We hope this book shows how to construct them effectively and wisely.

We thank Lee Scheingold for reading and commenting on the entire manuscript. Her generous contribution to this project stands as an act of friendship and as a testament to the memory of Stu Scheingold, who inspired so much of our thinking about law and society. We also thank Alan Childress for publishing this book with his innovative Quid Pro Books.

W. Lance Bennett

Seattle, Washington

and

Martha S. Feldman

Irvine, California

March 2014

Notes

¹ An extended version of this story is available in podcast #507 of This American Life. Other media covering this story include the Los Angeles Times, USA Today, and Police Chief Magazine.

² See Alexandra Michel (Forthcoming). The Mutual Constitution of Persons and Organizations: An Ontological Perspective on Organizational Change. Organization Science (2014). Published online ahead of print in Organizational Science Articles in Advance, Feb. 4, 2014, http://dx.doi.org/10.1287/orsc.2013.0887 (last visited Mar. 2, 2014).

Foreword

William S. Bailey

The best kind of scholarship helps the reader to make sense of the world by identifying evolving patterns of behavior with fresh eyes and penetrating, well-informed insights. Reconstructing Reality in the Courtroom set an early standard for identifying the critical importance of story development and structure to the success of lawyer communication strategies. This book shows how ordinary people make sense of legal cases.

Historically, there has been relatively little understanding among lawyers as a group on how best to present information to an audience, be it judge or jury. Conventional legal training places inordinate emphasis on accumulating a volume of facts and details, the search for which is shaped by the law applicable to the case. But the critical communication piece of how best to convey that information has been largely ignored.

Reconstructing Reality in the Courtroom skillfully compares and contrasts how human beings make sense of the world with the objective rule and procedure-driven self-image that the criminal justice system cultivates. There is a fundamental underlying symbiotic relationship between legal and social judgment. The authors strip away all the surface complexity of legal pageantry to reveal the fundamental truth that criminal cases are presented in court in the form of stories that affect the credibility of the legal claims. While jurors are given instructions as to what the law is before retiring to reach a verdict, the outcome of a case depends almost entirely on human judgment, which is based on how well legal definitions fit into the stories told by the prosecution and the defense.

Using the story form is not unique to law. It may be fundamental to nearly all forms of communication and persuasion. From early childhood on, we learn best by stories. W. Lance Bennett and Martha S. Feldman adapt a broad structural framework of storytelling to the criminal trial context, making it come alive in the dynamic real world courtroom environment. New information that is in a story and tied to what we already know is much more likely to be remembered and believed. Visuals can further deepen audience understanding of the story by providing a more intuitive approach that cannot be achieved by words alone.

Persuasion is a common goal of stories in many contexts. As Aristotle first set forth in The Poetics, the measure of a successful tragedy is to evoke pity and fear in the minds of the audience. In a very real sense, all criminal trial stories are tragedies. By definition, something bad has happened to another human being, or to society as a whole. That is why prosecutors file charges.

The main purpose of stories in the courtroom is to persuade jurors. Jurors are like readers who identify with characters depending on how the thoughts and behaviors of the character relate to their own values, and that of the society in which they live. Just as writers shape how the reader responds to the characters in a story, lawyers shape jurors’ responses through the way they present the stories of the alleged defendants and victims. Bennett and Feldman explore how the competing stories of the prosecution and defense seek to align with the social judgment of jurors.

Using a mix of actual trial observation, transcripts from dozens of other trials, and classic cases, this book presents a model of how stories work. This model shows how a well-crafted story may repair missing or questionable evidence, and how a poorly constructed story may damage an otherwise well documented case. This model of how basic story elements aid or disrupt judgment is tested in a series of experiments of the sort that practitioners can conduct to test the story logic of their own cases.

In addition to explaining how the key plot elements of the stories used in criminal trials affect judgments about credibility, the authors also look at the rhetorical tactics used by lawyers to establish the elements of the trial story. The strategies of questioning witnesses from numerous criminal trials are presented and analyzed, showing how lawyers seek to connect up their version of the story with the testimony from the witness stand.

Often times, the basic facts are not in dispute. The trial is about the interpretation to be given to these facts. The story structure model outlined by Bennett and Feldman is the key to understanding how jurors sort through this interpretation. The narrative framework presented in this book explains how juries reconcile the competing accounts of how a defendant may have committed the alleged criminal act, and whether there existed the right combination of means and motive at the scene of the action to make the legal charge sensible or not.

Success in the courtroom absolutely depends on a thorough depth and mastery of the storytelling form. For this reason, my courses at the University of Washington School of Law now go far beyond standard law textbooks, drawing heavily upon a broad range of material on the structure of stories, the role of cultural myths and the manipulation of popular opinion by image makers, ranging from Joseph Campbell to David Ogilvy to Edward Bernays. Reconstructing Reality in the Courtroom fits right in with what effective lawyers need to know in the modern world. The authors presaged contemporary appreciation of the critical role of stories in courtroom communication and provide timeless insights into how stories are assessed by people who have to judge their credibility. This book is for lawyers who want to go beyond a quick superficial treatment of the subject, looking at the realpolitik of stories and social judgment in the courtroom. It will pay real dividends to those who apply its simple model.

William S. Bailey

Professor from Practice,

University of Washington School of Law,

Seattle, Washington

January 2014

Foreword

Anna-Maria Marshall

In legal scholarship (and in popular imagination), courtrooms are the exclusive domain of lawyers and judges. Lawyers keep the gates to the legal system, choosing cases to take to court and planning trial strategy, while judges preside over the conduct of trials. It is not surprising then that research about what goes on in courtrooms largely serves lawyers, focusing on trial practice and civil procedure. Often breaking trials down into different component parts, much of this research tries to measure discrete aspects of the proceedings to develop