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Trial Argumentation: The Creation of Meaning

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International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique Aims and scope Submit manuscript

Abstract

My purpose is to analyze lawyers creating meaning in three well-known cases in Anglo-American legal history: Commonwealth v. Woodward (1997) the famous Boston ‘nanny’ case, the O.J. Simpson Murder Trial (1995), and the John Peter Zenger Libel Case in Colonial New York (1734). In each case, creative lawyers were able to shift the question before the jury from the formal legal question—did Woodward and Simpson commit murder? Did Zenger publish libelous material?—to issues of vengeance and catharsis, and of the ability of the legal system to represent the community’s sense of justice.

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Notes

  1. Previously, jury deliberations have been available only for mock trials. Because no one’s life or fortune is actually at stake for such jurors, these deliberations cannot accurately reveal how jurors deliberate in actual trials.

  2. In the trial depicted in Inside the Jury Room, [11] the jury expressly considered all of these potential questions, and expressly considered the matter of the proper function of the jury as well.

  3. Though formally trained as a physician and not as a philosopher, Percy published a not insubstantial body of essays, several of which appeared in professional philosophical journals; these essays are included in two collections [16, 17].

  4. In semiotic terms, the cosmology provides the content of the Ground in Charles Sanders Peirce’s conception of the sign:

    A sign or representamen, is something which stands to somebody for something in some respect or capacity.… The sign stands for something, its object. It stands for that object, not in all respects, but in reference to a sort of idea… called the ground of the representamen [25].

    Peirce’s seminal insight is that the linguistic sign is triadic rather than dyadic in nature, as it is in the semiotic concepts of De Saussure [26]. In terms of theory, as distinguished from function, the Ground is a necessary element because, for the sign to be triadic, four elements are required. Topologically, it is helpful to think of the sign as the inner space bounded by a tetrahedron, with the four faces consisting of representamen, interpretant, object, and ground.

  5. John Dewey has described this abductive process in terms of the Logic of Consequences and the Logic of Antecedents [29]. The Logic of Consequences denotes the process of framing that determines the Result and entails the Rule. The Logic of Antecedents denotes the deductive application of the now-antecedent Rule to the Case, thereby justifying the Result.

  6. 384–322 BCE.

  7. The deductive syllogism is the enthymeme; the inductive syllogism is the paradigm (p. 40 in [30]).

  8. There is persuasion “through character whenever the speech is spoken in such a way as to make the speaker worthy of credence” (p. 38 in [30]).

  9. 106–143 BCE.

  10. 35–100 CE.

  11. Logic, Grammar, and Rhetoric.

  12. E.g., “language designed to have a persuasive or impressive effect on its audience, but is often regarded as lacking in sincerity or meaningful content: all we have from the opposition is empty rhetoric.” (p. 1461 in [36]); “(in writing or speech) the undue use of exaggeration or display; bombast” (p. 1650 in [37]).

  13. ca. 483–375 BCE.

  14. Fl. ca. 450 BCE.

  15. These are the Encomium of Helen (a defense of Helen of Lacedaemon, abducted by Paris of Troy) [39], A Defense of Palamedes (a defense of the mythical figure Palamedes against Odysseus’s charge of treason) [40], Epitaphios (a fragment of a funeral oration for Athenian warriors lost in battle) [41], On the Non-existent (a paraphrase of a philosophical disquisition on what became known as the Platonic forms) [42].

  16. These arise in the limbic system in the brain stem (pp. 131–134 in [20]).

  17. These arise in the prefrontal cortex, which is involved with the adoption of the cosmology (pp. 134–139 in [20]).

  18. In 1999, the CBS program 60 Minutes presented a segment that provided the results of a retrospective investigation into the circumstances of Matthew Eappen’s death, an investigation that revealed that, in addition to the partially healed skull fracture that was discovered during the surgery on February 4, the infant had, over the previous several weeks, suffered numerous other injuries, including broken ribs, a broken wrist, and a severe blow to the abdomen; and that the immediate cause of death was strangulation that occurred sometime in the 48 h previous to the onset of convulsions on February 4, a period during the major portion of which, being a weekend, the infant was not in Louise Woodward’s care [52]. It is a matter of curiosity that Matthew’s parents, both physicians, did not seem to have displayed an awareness of any of the series of injuries that he had suffered.

  19. A comprehensive set of materials on the O.J. Simpson trial, including background materials and relevant documents, is collected at the website of the University of Missouri-Kansas City School of Law [55].

  20. In the aftermath of the trial, one of Zenger’s principal backers, James Alexander, published what amounts almost to a stenographic account of the trial (pp. 41–105 in [68]).

  21. The Star Chamber practice of initiating a criminal action by an information, brought by an oppressive State official, rather than by indictment by a grand jury of the accused’s peers (pp. 88–89 in [68]).

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  1. Washington and Lee University, School of Law, Lexington, VA, 24450, USA

    Denis J. Brion

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Brion, D.J. Trial Argumentation: The Creation of Meaning. Int J Semiot Law 22, 23–44 (2009). https://doi.org/10.1007/s11196-008-9093-1

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