The Risk of Treating Criminal Trials as Theater

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Robin Barton

In high school, my first love was acting. But for various reasons, I decided not to pursue a career as an actress and opted to become a prosecutor instead.

That career change isn’t as odd or abrupt as it might seem.

After all, criminal trials are theater in many respects. The prosecutor and defense attorney are the actors. The jury is their audience. Opening and closing statements are essentially monologues.

The required skills also translate between the two occupations. In both, you need to be quick on your feet and able to ad lib when needed, such as when a co-star flubs a line or a witness says something unexpected on the stand.

Although all criminal trials have an element of theater to them, televising such trials can heighten the theater factor—leading attorneys to play to a wider audience and not just the jurors, which in turn can lead them to cross certain lines.

Consider the Oscar Pistorius trial in South Africa, which is being broadcast live.

Pistorius is accused of murdering his girlfriend, Reeva Steenkamp, by shooting her through the closed door of a bathroom. The double-amputee athlete has claimed that he thought he was shooting an intruder.

Gerrie Nel, the prosecutor, was very aggressive in his questioning of Pistorius over nearly five days.

For example, he displayed a graphic photograph of Steenkamp’s head wounds and tried to coerce Pistorius into looking at it.

Such tactics in this and prior trials have earned Nel the nickname the “pit bull.”

The tactics may be fairly typical for him and not simply because the trial is being televised. But there’s no jury in the Pistorius case—just a judge.

So who is he trying to impress with these antics? It’s unlikely the judge will be swayed by them.

And although Nel has handled high-profile trials before, none have garnered the kind of international media attention riveted on the Pistorius trial. So it’s possible that Nel is using these tactics to raise his profile on a global level.

If so, it’s working: here we are talking about him in the U.S.

The O.J. Simpson trial is another example of how televising a criminal trial may have impacted the behavior of the attorneys involved. Who can forget Johnnie Cochran’s summation line regarding the infamous glove: “If it doesn’t fit, you must acquit.”

This statement was not just a plea to the jury—it had all the hallmarks of a ready-made sound-bite created just for the press and recaps on the evening news. However, Cochran made the statement in his closing argument, where some dramatic license is to be expected.

Live broadcasts of criminal trials are a good way to educate the public on how the criminal justice system works in general and to keep them informed of the proceedings in specific cases.

But it’s crucial that such coverage doesn’t impact how evidence is presented and how the various parties conduct themselves. That is, preservation of the integrity of the process is important.

Prosecutors (and defense attorneys) should keep these principles in mind. If they don’t, they may cross ethical and legal lines.

For example, in the Pistorius case, the judge admonished Nel, warning him to stop calling Pistorius a liar while he was testifying.

Judges in other televised trials would be advised to follow this example and use their authority to rein in attorneys when they start to become “drama queens,” especially if they push the envelope too far.

In addition, the South African Human Rights Commission said that it had received a complaint that Nel’s “persistent depiction” of Pistorius as a liar infringed on his right to be presumed innocent and have a fair trial.

It’s one thing to recognize that trials have a theatrical element to them. It’s another to indulge in the drama to the extent that it undermines the integrity of the criminal justice system and the public’s perception of it.

Robin L. Barton, a legal journalist based in Brooklyn, NY, is a former assistant district attorney in the Manhattan District Attorney’s Office and a regular blogger for The Crime Report. She welcomes readers’ comments.

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