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Revelation and Rhetoric: A Critical Model of Forensic Discourse

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Abstract

Over the past thirty years or so, theoretical work in such fields as legal semiotics and law and literature has argued that the legal process is profoundly rhetorical. At the same time, a number of communication-based disciplines such as semiotics, sociolinguistics and linguistic anthropology have provided, particularly in interdisciplinary combination with law, a wealth of empirical evidence on, and insight into, the micro-contexts of language and communication in the legal process. However, while these invaluable nitty-gritty analyses provide empirical support for a rhetorical thesis, work in these areas has tended to ignore rhetoric as an explanatory principle. This article introduces an overarching rhetorical framework for the discursive construction and management of cases in contemporary Anglo-American legal processes. Taking ‘forensic’ as relating to the conduct of cases and ‘discourse’ as semiosis-in-practice, I argue that the practices within which forensic discourse is embedded are not, as the received legal view would have it, aimed at revealing an impartial truth but are deeply rhetorical practices aimed at persuading decision-makers to provide a remedy for a claimed wrong. By looking across forensic texts and contexts, I identify common elements of forensic discourse that can be found both in classical forensic orations and throughout the modern legal process and consider how these intersect with critical forces of agency and structure and the particularities of semiosis in situated context. An awareness of commonalities across forensic discourse can help sharpen our focus on the critical causes and consequences of individual and structural difference and point to consequential suggestions for reform.

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Notes

  1. In Athens, murder was a civil rather than criminal offense since it was an offence against the family rather than the State.

  2. This is precisely Gorgias’ definition of rhetoric in Plato’s dialogue discussed below.

  3. Aristotle’s term for the genre, δικανικόν, is either translated as ‘forensic’ or ‘judicial’. The other two genres of rhetoric are ‘deliberative’ (exhortation or dissuasion) and ‘epideictic’ (praise or blame).

  4. In reality, little has changed in terms of civil small claims cases, in which the claimant is still expected to summon the defendant, draw up their own charges and present their own case before a judge.

  5. ‘Justifiable homicide’ cases were tried at a designated court at the temple of Delphinion by an ‘expert’ panel of 51 ephetai, elderly Citizens with some status in the city-state [72: 71].

  6. Or, in the case of many civil cases such as neighbour disputes, actions or states which began in the past and continue up to the present.

  7. Competition is by no means unique to forensic narrative. Bruner [21: 86], for example, notes that by the age of 3–4, children have already become quite proficient at using stories to present their actions in a legitimizing light that will exonerate them from blame.

  8. This is an exceptionally simple account of some extremely complex and much debated concepts. My intention is to speak to a broad interdisciplinary audience and, unless one subscribes to an ideology of universal and certain truths in human affairs, in which case, as Plato claims, audience uptake is irrelevant, concepts that depend for their understanding on complex theoretical superstructures will tend to fall to deaf ears beyond the acolytes of the Theory. For a clear introduction to the critical relations between power and discourse, see Blommaert [15].

  9. Conflict is phylogenetically and ontogenetically physical: before they are able to speak, cavemen fight over food and children fight over toys.

  10. It was a common belief in classical Athens that a defendant’s slaves would, under torture, abandon allegiance to their master and reveal the truth. So a refusal to allow one’s slaves to be tortured was considered an indicator of guilt.

  11. For this reason, many jurisdictions across the world have prohibited suspect-focussed video evidence, preferring camera angles showing both interviewer and interviewee. Yet, while a large proportion of police forces in the US still do not record interviews with suspects, many videotape the suspect’s confession and suspect-focussed video evidence is still acceptable in many courts.

  12. The example is from New South Wales, where the ERISP recording system focuses mostly on a close-up of the suspect (after jurors complained that they couldn’t see the suspect’s face in a ‘full-table’ view) but then pans out to the whole interviewing table for about 20 s every 3 min.

  13. ‘Platonic’ rhetorical abuse can be picked up by the same instruments of constant surveillance (e.g. CCTV cameras installed in police stations) that institutions of law enforcement use to maintain control over suspects and convicts [38]. One must assume that the police officers were unaware of the cameras and were going about everyday practice.

  14. What the DI reports of his conversation with the suspect is clearly unlawful inducement to confession under the Police and Criminal Evidence Act (PACE) since he has promised bail and the dropping of one charge (rape) in exchange for a confession on the other charges (robbery and assault).

  15. ‘Bottle’ is British slang for nerve or courage.

  16. The recording is available at http://law2.umkc.edu/faculty/projects/ftrials/lapd/kingvideo.html or http://www.dailymotion.com/video/xhc7q7_rodney-king-beating-enhanced_news. Such a recording of unplanned violence was very rare at a time when there were no mobile camera phones and few CCTV cameras. The police showed no interest in the tape until it was broadcast by news media across the world.

  17. In case any reader is convinced by the defence expert analysis, it might help to know that the two officers convicted in the 2nd trial sent messages to colleagues immediately after the incident saying ‘I haven’t beaten anyone this bad in a long time’ and ‘Tased and beat the suspect of CHP pursuit big time’. Officer Powell claimed that this was simply ‘professional jargon’ [91].

  18. One must ask, though, whether the original perceptual reversal of figure and ground could even have been attempted outside the ideological and power context of the police (the guardians of law and order) being on trial. The standard of proof required to convict officers or even to commit them to trial [33] appears to be far greater than for other types of defendant.

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Acknowledgments

I am deeply grateful to all those who have provided invaluable feedback on aspects of this work that were presented at a number of conferences and guest talks.

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  1. Centre for Language and Communication Research, Cardiff University, 12 The Grange, Baroness Place, Penarth, CF64 3UW, Wales, UK

    Chris Heffer

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Heffer, C. Revelation and Rhetoric: A Critical Model of Forensic Discourse. Int J Semiot Law 26, 459–485 (2013). https://doi.org/10.1007/s11196-013-9315-z

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