Lost in the glamour and intrigue are deeper issues. To be sure, criminal trials are serious proceedings to determine whether the life or liberty of a suspect accused of violating society's laws should be taken away. However, they are also good theater, an adversarial contest (akin to a sporting event) where the stakes for winning are at their highest. These are the subjects that interest Sadakat Kadri, a British barrister, in "The Trial."
As Kadri notes, trials are compelling drama because they simultaneously encompass justice, vengeance, secrecy, spectacle and reason. He punctuates each chapter with pertinent anecdotes relating to actual trials, but he never strays from his mission of uncovering what these trials say about the societies in which they take place and determining whether Western institutions have honored or betrayed the ideals for which they claim to stand. The book is divided into eight thematic chapters in roughly chronological order, and it starts with a discussion of early religious rituals and ends with a mention of the circus trials of the modern era.
Although modern Western societies have tried to make criminal trials secular proceedings, they have been shaped by religion. For millennia, it was assumed that law and punishment were divine. As Kadri notes, the first judges were priests. Then, and now, trials were held to right wrongs, usually violations of moral values drawn from religion. Perhaps this is inevitable since Western Civilization's moral code is largely derived from the Bible. Indeed, despite our sophisticated courtroom technology, remnants of ancient religious rituals remain present in modern trials, including incantations -- "Do you swear to tell the truth?" -- robes, and an attempt to invoke a churchlike solemnity in the proceedings.Of course, some things have changed. Until relatively recent times, women could participate in judicial proceedings only through their guardians. Slaves were allowed to give testimony only through physical torture. Murderers were believed to exude noxious vapors that could contaminate others. Common punishments included burning defendants alive and feeding them to wild beasts.
In the Dark Ages, an accused was often consumed by fire or water to see if God intervened; absent such divine intervention, the suspect was deemed guilty. Another form of trial, "trial by combat," involved having legal combatants fight to the death to see -- once again -- on whose side God intervened. Sworn oaths, instead of serving as a guarantee of truthful testimony, served as the evidence itself. Jurors had to take an oath as to the truth of their verdict and were criminally liable if the verdict turned out to be incorrect. While the logic of these and other ancient societal practices is not apparent to us, those practices clearly made sense to the societies that employed them. One wonders if our own modern notions of criminal justice will seem equally archaic to societies hundreds of years from now.
Slowly, trials became more civilized but the process was slow, and cruelty often carried the day. Ultimately, court proceedings became less secret, and trials opened up to the public, including the media. As public punishments began to wane over time, public interest in the jury trial itself -- as opposed to the infliction of the punishment for the crime -- intensified.
Kadri writes that exposing a criminal to community denunciation through a trial plays a vital role in our society, reaffirming the beliefs of citizens that they are morally sound in contrast to the immoral defendants who are being prosecuted. By this logic, trials define people as "bad" in order to establish what is "good." Kadri's conclusion is that -- at least on the surface -- modern trials are more organized and rational than their predecessors based on the presence of lawyers for both sides, neutral judges, and a respect for the rights of defendants.
Moreover, he posits that in every trial in which a criminal defendant comes to court and proclaims his innocence, a process begins anew that reaffirms basic tenets of a democracy -- that the most vilified and powerless members of society are to be treated with respect, to be presumed innocent, and to be given trained legal counsel to champion their cause. Thus, trials are more than simply good theater and more than mere voyeurism. Rather, they serve as testimonial to the notion that reasoned deliberation should not be subordinated to the instinctive desire to punish.
Kadri forces us to look beyond the basic axiom that trials are designed to promote justice. Justice for whom? For society as a whole? For the victim? Or for the defendant? An argument can be made that the answer is all three. How measures to address these often competing interests are allocated will inevitably reflect society's assessment of the relative value of those interests. In this manner, trials hold a mirror up to the society in which they take place, reflecting values, beliefs and mores.
Over the last four decades, our society has taken numerous steps to safeguard the rights of criminal defendants. These steps include stricter enforcement of the right against self-incrimination, the exclusion of evidence against an accused that was obtained through unconstitutional means, and a renewed emphasis on the right to legal counsel. Predictably, these measures have resulted in criticism that defendants have too many rights. However, as Kadri's book makes clear, until very recently defendants had hardly any rights at all. One could argue that the presumption of innocence until proven guilty exists in name only and that our criminal justice system is built to convict -- unless the accused has the vast resources of an O.J. Simpson or a Michael Jackson.
Kadri reminds us that the questions we ask and the problems we face today are in many respects the same as those that have existed since the time of Socrates. The answers to those questions have differed over the centuries based on the perennially shifting attitudes upon which societies have been based. As different values become more important to a society, recognition of those values will be increasingly reflected in the rules that govern criminal trials. At times dense and always scholarly, "The Trial" is no quick or easy read. However, readers who persevere to the end will be rewarded with a comprehensive and thought-provoking historical assessment of the foundation of our nation's system of criminal justice.
