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Burns v. Received View

Published online by Cambridge University Press:  27 December 2018

Extract

Robert Burns's rich A Theory of the Trial (1999) brings philosophical theories of practical reasoning to bear on the trial in an erudite and comprehensive “thick description” of how the trial's structure enables jurors to reach sound practical judgments. Burns argues that the “Received View” of the trial is misleading and overly simplistic, because it sees the jury's mission only as one of evaluating the probability of events and then subsuming the most probable under a rule of law. By contrast, Burns understands that the “facts” the jury must find include the motives and virtues of the players and the competing values at stake in the litigation. The jury's Solomonic judgment, tacit and complex, weaves together judgments of morality, legality, credibility, probability, plausibility, and politics, and it expresses the jury's own sense of community identity. In Burns's description, the trial's emphasis on narrative arguments by the lawyers and its play of direct and cross-examination are uniquely designed to help the jury reach a good verdict, while in the Received View, the emphasis on lawyer arguments makes little sense for finding “facts.” Hence, Burns concludes that the Received View is a thin and incomplete understanding of the trial that, at worst, leads to mindless efforts to reform or even abolish it. A more mindful and “thick” understanding of the trial demonstrates a much better fit between trial process and jury decision making.

Type
Review Symposium on Robert Burns's A Theory of the Trial
Copyright
Copyright © American Bar Foundation, 2003 

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References

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