Deakin Law Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Deakin Law Review |
|
RICHARD EDNEY[*]
The plea in mitigation is one of the most common occurrences in the criminal justice system.[1] The fact that the plea is so common does not necessarily follow that the plea in mitigation should be a mechanical process, or the mere application of a preordained formula that is simply applied to the circumstances of the offence and the offender. The potential consequences for the offender following a plea of guilty are significant, given the extent to which his or her coveted interests may be interfered with by the operation of the criminal law, as are the professional consequences for the advocate whose legitimate aim in the plea in mitigation is to attempt to obtain the least punitive outcome in all the circumstances of the offender and the offence.[2] Part of the challenge of the plea making exercise is the development of an appropriate context within which the circumstances of the offence and the offender can be viewed. In short the development of a narrative in which the offence and the offender may be understood.
Methods of approaching the plea in mitigation typically emphasise the need for the advocate to address the circumstances of the offence and offender.[3] Typically, such matters are put forward as items on a ‘list’ which the advocate must ensure are addressed during the plea in mitigation.[4] Whilst it is important for those matters to be covered in providing the factual background, or context, of the offender and the offence, it is contended that in a plea in mitigation it is not sufficient nor adequate to simply present such matters to a judicial officer at sentencing and to allow those matters then to be assembled and interpreted by the sentencing judge.
To do so is to ignore the creative aspect of the plea making as a professional activity and a crucial facilitator of a narrative on behalf of the offender that would seek to obtain the least punitive outcome in all the circumstances of the case. In short, to proceed to construct a plea on the basis that certain facts of the offence and the offender are presented to the Court is not to appreciate that the development of a sophisticated story on behalf of the offender is crucial to the cultivation of an empathetic narrative on his or her behalf.[5]
It is within that context that it is proposed to investigate the utility of literary concepts and literature in general to assist in the construction of the plea in mitigation. The central argument that will be developed is that the plea in mitigation is a creative undertaking and bears a strong resemblance to the function of literature as a means of understanding the world of others; in this case, offenders who are processed by the criminal justice system and who present for plea and sentence with their unique life story. It is proposed to consider the relationship between law and literature, with a particular focus on how the criminal law involves the production of particular narratives concerning criminal behaviour and how it is important that an advocate is able to articulate a persuasive narrative on behalf of the offender.
It will then be suggested that the role of the advocate in the plea in mitigation is creative, in the sense that the advocate is an ‘author’ who aims to produce a empathetic narrative on behalf of the client in an attempt to obtain the least punitive outcome in all the circumstances of the case. Before considering the manner in which the plea in mitigation is analogous to a work of literature, it is appropriate to consider briefly the relationship between law and literature.[6] It is important to note at the outset that there will not be an attempt to consider particular literary texts on crime and punishment[7] and how they may be invoked in the plea in mitigation.[8] That would be a considerable undertaking beyond the scope of this article which is more concerned with articulating a basis for which to understand the plea making exercise as analogous to literature and an elaboration of the creative aspect of the advocate’s role under such a model of plea making.
Literature and law, particularly the criminal law, exist in a complicated relationship in possessing similarities but also instructive and major differences, especially in relation to the ends sought by both as discrete fields of human activity and the means used to achieve such ends. A notable author such as United State Federal Court Appeals Judge Richard Posner has queried the validity of drawing any useful conclusions, or making any systematic interdisciplinary relationships and connections, between both.[9] Other authors have not been deterred, and the ‘law and literature’ school of jurisprudence continues to grow in significance.[10] It is not proposed to enter that debate, save to note that controversy, as the concern will be with drawing constructive parallels between law and literature to emphasise how literature and literary concepts may be of benefit to approaching the plea making exercise. A significant difference is that the plea in mitigation involves, by means of oral argumentation, the development of a position most favorable to the client. In this manner, the plea in mitigation and the use of language to persuade a forum has a historical continuity with the teachers of rhetoric in ancient Greece, the Sophists[11] and notable orators from Rome such as Cicero.[12]
Notwithstanding the difference in the manner in which information is presented, law and literature may be viewed as attempts to represent and understand some fundamental aspects of the human condition. Both are a ‘conversation’ that attempt to reconcile some of the enduring themes of human existence and association. For law, the ‘fundamental contradiction’[13] lies between the need to ensure that due weight is given to the interests of the individual but, at the same time, to accord a degree of weight to the interests of the majority so as to enable the continuation of a basic social order. Concepts of ‘Individual’ and ‘Community’ are thus not mutually exclusive but concepts that are balanced to produce what is considered a socially optimal result.[14] Criminal law represents the most obvious manifestation of that contradiction as it attempts to ensure that a balance is wrought between the interests of the offender and the law abiding majority whose peace and security is threatened by criminal behaviour. This is represented most patently in the sentencing process where an attempt is often made to balance the community’s interest in just punishment with matters personal to the offender, which may assist his or her rehabilitation, in determining the type and nature of penalty imposed.[15]
At a broader, cultural level literature attempts to render and represent the dilemmas and themes in human association and the struggle between our need for individuality and the claims of community. The law too attempts to deal with the contradiction between freedom and constraint and how to order the relations between agents in a fair and just manner. In short, both law and literature are important cultural agents for the production of social meaning and the resolution of such conflicts in a desirable manner.[16] Importantly, due to the important cultural function both perform in assisting communities and individuals understand and contend with the dilemmas that are associated with highly interdependent living, both are means by which acts and conduct and other moral questions can be assembled, argued and determined for a time.
It is perhaps useful when understanding the relationship between law, literature and the plea in mitigation to conceive of the plea as a ‘text’. Postmodern literary theorists note the immutability and instability of texts such as novels and films and the fact that there is not one single, authoritative reading of a text that is stable over time.[17] Moreover, this general claim to instability derives particularly from the relationship between the author and the reader.[18] In such a relationship the text does not have a singular meaning determined by the author but is capable of multiple understandings and interpretations. The relationship, in such an account of literary interpretation, between the author and reader is thus pivotal and what gives meaning to the text. The reading of a text in such an account is thus dynamic and fluid and the possibility of multiple readings of the one text are the necessary result. Thus the reader is not a passive participant who simply receives information but is creative and gives meaning to the text. Consequently such ‘readings’ of a text occur in an interpretive field that does not necessarily privilege the author’s intention.[19]
In this manner it is also possible to conceive of a criminal act and its consequences as a text. There are however a number of texts, or narratives, that simultaneously permeate the plea in mitigation and, importantly, which configure an understanding and representation of the criminal behaviour under consideration. Whether it is the perspective of the prosecutor, victim.[20] offender or the wider community, there are multiple understandings that arise out of the one same set of facts and circumstances. In such a setting perspective is critical, as is the task of interpretation.[21] When presenting the plea in mitigation on behalf of the offender the advocate must deal with the number of perspectives that are apparent in the particular circumstances of the offender and the offending.
The first necessary concession of the advocate at the plea is that the client has transgressed, in varying degrees, not only legal but also social and moral norms. Thus the advocate is presented with ‘multiple’ texts, or understandings, of the same act. Such texts must be dealt with, and countered, in the plea in mitigation in the attempt to persuade the sentencing judge as to the legitimacy of allocating priority of the text most beneficial to the offender. This requires that the advocate is required through the construction of a particular text or story to produce a text on behalf of the client that is most conducive to such a beneficial interpretation. In particular, the advocate is required to frame his or her plea in mitigation with a clear understanding of the wider social context within which the offending has occurred.
Part of the circumstances of the transgression by the offender of the social and legal order may be conduct that is inexplicable, reprehensible and disturbing. In short, there may be significant matters of aggravation.[22] Conversely, however, it may also be possible to render conduct of the offender in a more sympathetic light in an attempt to establish positive matters of moral significance that reduce the seriousness of the criminal conduct. In short, the use of perspective is essential to the ‘craft’ of the advocate during the plea. In addition, there may be numerous matters in mitigation that render the conduct of the offender less blameworthy and, conversely, more worthy of mitigation.
The ‘text’ produced on this aspect of the client’s conduct by the prosecution include a summary, victim impact statements,[23] if any, and, if relevant, prior convictions. The prosecutor in such a setting does not merely present the facts. Rather, by the judicious use of language the prosecutor is able to create a framework in which the offender is presented in the court as a person who ought to be justly punished. The prosecution opening and submissions on sentence provide the prosecutor with the opportunity to craft and present a particular text. This is not a neutral exercise anymore than the plea in mitigation that is made on behalf of the offender.[24] Moral judgments and declaratory statements as to the seriousness of the offence and the need for condign punishment may be at the forefront of the submission. At the conclusion of the prosecution case, the ‘outsider’ status of the client is augmented and rendered absolute. Importantly, the plea in mitigation allows the advocate to modify the perspective of the offending and offender that is provided by the prosecutor and to present a contradictory text for the sentencing judge.[25] Put simply, the plea in mitigation represents for the advocate the opportunity to challenge that status of the client and his or her conduct and to provide a countervailing text, or story, for the judicial officer to consider and balance prior to the imposition of punishment.
Different perspectives, alternative interpretations and contrasting narratives are all matters that allow the advocate on the plea to potentially alter the understanding of the criminal act by the offender. It is at this point that literature and literary concepts may offer particularly useful insights for the advocate. Put simply, the plea in mitigation presents the advocate with an opportunity to challenge the assessment of the offender of the prosecutor and to offer a more complex and sympathetic version of history than that provided by the prosecutor. Language is pivotal in this sense, as it was for the prosecutor, in that it permits the reconstruction of the past events in a manner that is most favourable to the offender and to thereby modify and transform the perspective of the judicial officer. It is that aspect of the plea in mitigation that I will now consider.
A crucial aspect of literature is that it allows, especially in works with psychological depth and a discerning realism, the reader to enter the interior of the characters that are central to the story. Concepts of time, place and character are central to the development of a rich and sophisticated story. Literary devices of pace, setting and place are crucial in the development of an engaging story. In addition, the use of literary devices that convey the emotional world of the offender to the court are critical. This is crucial in that the plea in mitigation ought not be mundane nor superficial but ought to have as its legitimate end the creation of a drama that uses the oral manner of presentation and the facts of the case to convey a sense of theatre to the court and, where necessary, create a sense of pathos.[26]
To claim that a work of literature is good, reference may be made to the depth of characterisation, intricacies of the narrative, construction of the plot and the successful development of underlying themes and frames of meaning. Conversely, to criticise a work of literature may be to contend that there is superficial character development, a mundane plot and a predictable and an implausible climax. In short, that it does not shift our perspective nor engage us in the drama of the story. For our purposes, a plea in mitigation that is developed in a similar manner may also be open to critique on that basis. That is, that it fails to transform the perspective of the reader, in the case of the lawyer the judicial officer, and to evoke a different, more favorable assessment of the client’s position. As such, drama and attention to style, so as to evoke a favorable response, are part of the means available to the advocate during the plea in mitigation.[27]
In a similar manner in which a novel may shift or move the perspective of the reader, so to may the plea in mitigation. As a reader of a novel it is not sufficient that we are merely presented with information. To be engaged with a novel we generally require more than information but matters pertaining to context and character development. As literary critic Wayne Booth notes, in the context of discussing the success of the hero of a text
If we share in the pleasure of seeing the comic but worthy hero worthily rewarded, the reason is thus not to be found in any inherent quality of the materials but rather in the skilful construction of a living plot out of materials that might have been used in many different ways.[28]
In particular, we may appreciate the permanence or otherwise of a character as he or she develops over time and the life course. Descriptions of character traits and the multitude of matters that make up an individual personality will be prominent. Generally, in the course of the novel, we are exposed to different experiences of the character and his or her reactions to those events. Through the use of alternating frames of reference and the consideration of such matters we as readers are able to achieve a more sophisticated appreciation of the characters and the situations that they encounter through the course of the novel.
Importantly, such a development of the novel permits an assessment of the authenticity of the work. Thus a novel may be unauthentic to the extent that it distorts or falsely represents how we would expect persons to act in that particular situation. The extent that the novel is unauthentic and fails to convince us to the claims that it seeks to make will determine how we may be moved by the novel. Thus there may be considered a proportionate relationship between the development of the story and the extent to which the novel achieves in its interaction between the reader and the text and thus whether it achieves a shift in the perspective of the reader.[29]
This aspect of literature is important. It focuses on the idea of transformation and the potential of literature to alter preconceived and so called ‘natural’ ways of thinking about other people. That is, the ability of literature, through interaction with the reader of the text, to permit the entry into the interior of another person’s hidden and private world. This will enable the exposure of the reader of the position of another who may stand in a different position in the world. Depending on the reader, the text, whether a work of literature or a plea in mitigation, may produce a response where something that may have seemed foreign, different and unknowable is rendered more comprehendible. Thus literature may provide a means of contextualising and rendering knowable other people’s minds and worlds. This is central in the context of the criminal justice system where the offender is necessarily an outsider by virtue of his or her conduct.
In the context of sentencing, it is critical that the judicial officer is able to appreciate, through the use of language, the rich and multi-layered context of an offender’s life story.[30] It is trite to claim that every person is an individual; but it is a proposition that is crucial to the development of the plea in mitigation. This is especially due to the structure and operation of the criminal justice system where there is a risk that the offender’s criminal behaviour will overwhelm other considerations. In addition, the processes of the criminal justice system tend to objectify and dehumanise the offender. Thus a person becomes a ‘prisoner’ or ‘defendant’ with negative connotations and stigma associated with such terms. The plea in mitigation represents an attempt to move beyond such categories and to emphasise the nature of the person beyond his or her offending.
Lawyers are continually engaged in the process of storytelling.[31] Language and the tools of rhetoric are central to that task.[32] The plea in mitigation, particularly given the primacy placed on oral persuasion,[33] is one of the few remaining areas of public life where the production of a narrative is central to that task. It is a craft that bears more than a passing resemblance to the acts of creation of the author of literature. As Kornstein notes,[34] when discussing the nature of the advocate’s task:
A lawyer’s mode of thought also has distinctive similarities to those of a playwright. A lawyer, like a playwright, depends on narrative, the ability to tell a story. Both use the power of illusion and persuasion. The playwright takes reality and, by imagination, makes it into fantasy, while the lawyer takes real-life disputes and, also by no less a form of imagination, transmits them into illusory concepts of law and legal castles out of thin air.[35]
The use of rhetoric and other linguistic devices such as metaphor, analogy, and other carefully chosen uses of language to ornament submissions are critical devices for use in the plea in mitigation.[36] Simple, perfunctory exposition of relevant facts and circumstances of the offence and the offender may not be sufficient as they may not adequately convey to the court determining penalty an engaging account of the plot and themes of the client’s life story. To conceive of the lawyer as a storyteller in the plea in mitigation is to conceive that in the practice of law, as with literature, language is dominant. Without language, and the possibility of assembling words and their meanings in an infinite number of ways, both would cease to exist. Language permits both the lawyer and the writer to engage in a process of a creative construction. A writer has a greater degree of freedom in that the text produced is only circumscribed by the writer and his or her imagination, whereas the lawyer is constrained by his or her instructions and the text produced by the prosecution in the summary or Crown opening, as well as rules relating to evidence and professional conduct. What is similar between both activities, however, is that there exists no formula or script for the activity. Proponents of both are in their respective activities at large to create a particular reality that is fit for their purpose. It is at this point perhaps that the relationship between the plea in mitigation and literature is most evident.
It is at the level of the construction of the plea in mitigation that the convergence with literature is most apparent. What narrative themes are to literature so too such themes form the central plot of the client’s life story in the plea in mitigation. In this context, the use of language that is most appropriate to convey such themes to the forum is crucial. Themes and plot are critical because they provide a degree of order to the set of facts relating to the circumstances of the offence and the offender. Importantly, such literary devices permit the plea in mitigation to be structured in the most persuasive manner. By providing structure to the plea, it allows the judicial officer at the conclusion of the plea to be impressed by certain matters when considering the appropriate sentence. It may also allow the judicial officer to have that theme or plot of the offender’s life story resonating when the alternative texts of the offence and the offender are considered during the course of the plea. Moreover, it allows the judicial officer to imagine the position of the offender and his or her relationship with the community.
Consequently, in the plea in mitigation facts and events of the offender’s life story must be chosen carefully and critically and with an appreciation that the plea is a story with a particular aim or end in mind. Discrimination and discernment are key features of this rhetorical turn, and the use of argument to arrange and select appropriate matters for inclusion in the plea represents an attempt to sustain the most sympathetic version of events that is available for the offender. And it is exactly because of the temporal and institutional constraints placed on judicial decision-makers ‘knowing’ the client, that the role of the advocate is critical in the construction of a story on behalf of a client. This is pivotal as the judicial decision maker is unable, due to the premium of time and institutional constraints, to be provided with the minutia of facts which are relevant to the person for whom the plea is presented.
Indeed, in accounts of the plea in mitigation these institutional and temporal aspects of the plea have tended not to concentrate on the unusual relationship between the offender and the judicial officer and how they interact. This is somewhat surprising given the coveted interests of the offender which may be interfered with at sentencing but also the extraordinary power provided to the judicial officer at the sentencing stage of the criminal justice system. Typically the relationship is formal, hierarchical and when the matter proceeds by way of plea without trial the amount of interaction between the offender and the judicial officer is relatively short.[37] In short, the accused and judicial officer do not become acquainted over time as happens in other relationships that we may become engaged in during the life course. In addition, the institutional processes of the court system tend to discourage any relaxed and convivial relationship. As a result the extreme roles played by the offender and the judicial officer predominate. In those circumstances, it is possible to conceive of the advocate as a translator who attempts through language to bridge the relationship between the offender and the judicial officer.
The importance of being able to adequately convey the life story of the client is perhaps the most difficult aspect of the plea. Selection, discernment, acts of omission and ultimately interpretation of particular facts on behalf of the client are the source of the creative nature of the plea making exercise. Importantly, in contradistinction to the manner in which a reader approaches a work of literature, are the temporal constraints placed on the advocate. A reader of literature can read the work in one sitting or, more likely, over time. Consequently, the work and its effects slowly emerge and potentially transform the perspective of the reader. The characters of the novel and their foibles and redeeming features are often in plain relief by the conclusion of the novel and the assessment of those characters may be subject to numerous interpretations by the events in the novel. A character may initially be worthy of antipathy and loathing but may be developed in such a manner that if empathy by the reader is not achieved then a greater understanding of the character exists at the end of the novel than was possible at the commencement. Advocates do not have that luxury and must attempt to construct an interpretation that is selective and discriminating in an attempt to create a narrative that is persuasive by treating the judicial officer as a reader whose perspective of the offender may also be able to be transformed. The greatest advantage of the advocate, in contrast to the author, is that the response and critique of the performance on behalf of the client is provided almost instantaneously, although the potential consequences for the client are more dramatic than a poor book review and involve an interpretation of reality that may be enforced by the violent power of the State.[38]
Literature can make lawyers and judges more empathetic, more
aware of cultural variety and nuances of individual motivation. The
fully experienced literary masterpiece tends to liberate. Great literature
is seldom repressive. Literature can help lawyers understand and
empathize with people and human conflicts in ways that more
scientific sources of knowledge cannot. Narratives of human
action in problematic situations induce the reader to identify with
varied characters and to assess ambiguous actions, and thereby to
extend sympathies and refine moral sensibilities in a way that improves
legal judgement.[39]
Both law and literature deal with universal themes. Notions of personhood, apportioning blame, construction of responsibility, wickedness, redemption, forgiveness and others figure at the heart of such understandings. Such themes are most evident in the administration of the criminal law. Those themes are the critical backdrop to how the plea in mitigation is approached and the reckoning of the circumstances of the offence and the offender. As such they need to be countered and dealt with in the plea in mitigation. Mere recitation of the facts of the offender are insufficient for that purpose because they ignore those universal themes and the moral dimension that necessarily informs the legal system when the court is dealing with a breach of the criminal law.
The utility of literary concepts such as plot, narrative and character is that they humanise the offender and place him or her and the offending in a context where his or her individuality is affirmed. Thus, as a work of literature may permit us to enter, if only for a brief moment, the interiority of another so too may the plea in mitigation by highlighting the central themes and plot of an offender’s life story, enabling the judicial decision maker to frame a response to the offending that is not only proportionate to the circumstances of the offending, but also recognises the individuality of the offender.
[*] Barrister and Solicitor of the Supreme Court of Victoria; Senior Lecturer, School of Law, Deakin University. Address for correspondence: Deakin Law School, Deakin University, Burwood Highway, Burwood, 3125 or richared@deakin.edu.au.
[1] Kathy Mack and Sharyn Roach Anleu, ‘Reform in Pre-Trial Criminal Procedure: Guilty Pleas’ (1998) 22 Criminal Law Journal 263. In the recent High Court decision in Cameron (2002) 76 ALJR 382, the Court was careful not to state that those who plead not guilty would receive a more severe punishment than those who plead guilty would. The Court did note, however, that accused that pleaded guilty and thus ‘facilitated the course of justice’ were entitled to a discount.
[2] Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999) 91-92; Kate Warner, Sentencing in Tasmania (1991) 24; Chief Justice John Phillips, Advocacy with Honour (1985) 88. More generally see Janet Martin, ‘A Balanced Performance on Sentence: Some Comments on the Role of Defence in the Sentencing Process’ (1991) 15 Criminal Law Journal 261.
[3] Max Perry, Hampel on Advocacy (1996) 87-88. Also see F.C. James, ‘The Plea in Mitigation: An Exercise in Persuasion’ (1983) 54 Law Institute Journal 353.
[4] In sentencing judgments there will often be a concern by trial judges to state that certain matters were taken into account in arriving at the sentence imposed. This is important for appeal purposes and permits the appellate court to consider whether all relevant matters were taken into account.
[5] On how the legal system may be made more amenable to empathy, see Richard Delgado, ‘Storytelling for Oppositionists and Others: A Plea for Narrative’ (1989) 87 Michigan Law Review 2411.
[6] See generally Thomas Morawetz, ‘Law and Literature’ in Dennis Patterson (ed), A Companion to Philosophy of Law and Legal Theory (1996) 450-461.
[7] For such an account, see Vincenzo Ruggiero, Crime in Literature: Sociology of Deviance and Fiction (2003).
[8] For an example of an approach which uses specific literary texts and how they inform the judicial process and, in particular, the writing of judgments, see Justice Michael Kirby, ‘Literature in Australian Judicial Reasoning’ (2001) 75 Australian Law Journal 602.
[9] Richard Posner, ‘Law and Literature: A Relation Reargued’ (1986) 72 Virginia Law Review 1351, 1360-1375. Also see Richard Posner, The Problems of Jurisprudence (1990) 393-403.
[10] See, for instance, the Cardozo Studies in Law and Literature and Yale Journal of the Law and Humanities.
[11] As W.K.C. Guthrie notes in The Sophists (1971) 35:
In the lifetime of Socrates the word came to be used, though not solely, of a particular
class, namely professional educators who gave instructions to young men on public
displays of eloquence, for fees.
[12] Marcus Tullius Cicero (106BC – 43 BC) is perhaps the most well known of orators from this period of history. For an excellent introduction to his life and work see Anthony Everitt, Cicero: The Life and Times of Rome’s Greatest Politician (2001). For an excellent selection of Cicero’s forensic oratory see Henry Hubbell (ed) The Selected Works of Cicero (1948).
[13] An eloquent statement of that dilemma is provided by Duncan Kennedy, ‘The Structure of Blackstone’s Commentaries’ (1979) 28 Buffalo Law Review 209, 213
The fundamental contradiction – that relations with others are both
necessary to and compatible with our freedom – is not only intense. It also
pervasive.
And further:
...all issues within a doctrinal field reduce to a single dilemma of the
degree of collective as opposed to individual freedom that is appropriate.
[14] In the criminal law, particularly at sentencing, the issue for the court is to determine what is the public interest and what is the sentencing outcome that produces the most just result between the interests of the community and the individual who falls for sentence. It has been noted by courts that determining what is in the public interest is extremely difficult. See R v Hogon [1987] NTCCA 6; (1987) 30 A Crim R 399, 403 (Nader J). Also see R v Halewyn (1984) 12 A Crim R 202.
[15] This is often reflected in the statutory objectives to be achieved by the sentencing process. In Victoria, a sentencing judge or magistrate is required by the provisions of the Sentencing Act 1991 (Vic) ss 5 (1) (a)-(f) to consider a number of objectives when imposing a sentencing order. These are detailed in the Act as the only legitimate aims or ends of the sentencing process. What the Act does is to specify those objectives or ends as just punishment, deterrence, rehabilitation, denunciation and protection of the community. In addition, the Act also contemplates that some of those objectives may be in harmony. The difficulty, of course, is that the Act does not specify the method by which a judicial decision-maker is to make a decision when such ends are evenly balanced. In short, when there are incommensurable objectives and equally compelling claims for a number of contradictory sentencing objectives, the Act does not provide an answer.
[16] On this aspect of the law, see generally James Boyd White, Heracles’ Bow: Essays on the Rhetoric and Poetics of the Law (1985).
[17] See Stanley Fish, Doing What Comes Naturally: Change, Rhetoric and the Practice of Theory in Literary and Legal Studies (1989).
[18] W olfgang Iser, The Act of Reading: A Theory of Aesthetic Response (1980).
[19] Michel Foucault, ‘What is an Author’ in Donald Bouchard (ed), Language, Counter – Memory, Practice: Selected Essays and Interviews by Michel Foucault (1977) 113-138.
[20] See generally Linda Bander, ‘Empathy, Narrative and the Victim Impact Statement’ (1997) 63 University of Chicago Law Review 361.
[21] As Steven Lubet notes in Modern Trial Advocacy: Analysis and Practice (2nd ed, 1997) 2, in the context of an advocate determining a theory of the case for a trial
This is a creative process, since seldom will the facts be undisputed or capable of but a
single interpretation.
[22] In short, there may be a number of aggravating features present in either the circumstances of the offending or the circumstances of the offender. For instance, high level of violence, breach of trust, serious consequences for the victim and so on. In relation to the offender, matters such as relevant prior convictions, commission of further offences while on bail or parole, lack of remorse and others matters that may aggravate a sentence.
[23] In Victoria, the Sentencing Act provides for victim impact statements to be tendered as evidence during the guilt phase of the criminal trial. Such statements may contain the particulars of any loss, injury or damage suffered by the victim. See Sentencing Act 1991 (Vic) s 95B.
[24] Although the advocate’s role is not to import his or her personal opinion into the submission. See David Pannick, Advocates (1992) 116-118.
[25] The accused has not always had the opportunity to have legal representation at trial. An excellent historical account of the emergence of lawyers to appear for accused persons in the United Kingdom is provided by John Langbein, ‘The Criminal Trial Before the Lawyers’ (1978) 45 University of Chicago Law Review 263.
[26] Gerard Hauser, Introduction to Rhetorical Theory (1986) 110-116.
[27] See generally Sam Schrager, The Trial Lawyer’s Art (1999).
[28] Wayne Booth, The Rhetoric of Fiction (1961) 13 (emphasis added).
[29] Iser, above n 18.
[30] Criminologists have investigated the key points in the lives of offenders in an attempt to determine what may be the significant causal factors that explain both escalation and desistance in offending behaviour. See Joseph Laub and Robert Sampson, ‘Turning Points in the Life Course: Why Change Matters to the Study of Crime’ (1993) 31 Criminology 301.
[31] On the nature of law as storytelling see Peter Brooks & Paul Gewirtz (eds) Law’s Stories: Narrative and Rhetoric in the Law (1996). Also see Justice Peter Heerey, ‘Storytelling, Postmodernism and the Law’ (2000) 74 Australia law Journal 681. ; Richard Edney, ‘Pleamaking as Storytelling’ (2000) 74 Law Institute Journal 66. Texts on trial advocacy generally exhort the importance of the advocate developing a coherent story. See for instance, Thomas Mauet, Trial Techniques (6th ed, 2002) 26-27, 510-511. For an account of the role of storytelling in the criminal trials, see Lance Bennett, ‘Storytelling in Criminal Trials: A Model of Social Judgement’ in Lewis Hinchman & Sandra Hinchman (eds) Memory, Identity and Community: The Idea of Narrative in the Human Sciences (1997) 72-103.
[32] Julius Stone, Legal System and Lawyers’ Reasoning (1964) 327 – 330. On the central role of language to legal systems, see John Gibbons, Forensic Linguistics: An Introduction to Language in the Justice System (2003); Brian Danet, ‘Language in the Legal Process’ (1980) 14 Law and Society Review 447.
[33] Robert Burns, A Theory of the Trial (1999) 134-138.
[34] Daniel Kornstein, Kill All the Lawyers: Shakespeare’s Legal Appeal (1994).
[35] Ibid 102.
[36] Richard Du Cann, The Art of the Advocate (1964) 179.
[37] It is also somewhat surprising given the judgment expected of sentencing judges regarding the offender. Such assessments including the risk of re-offending, ability to comply with a supervisory order and prospects of rehabilitation- without the aid of a long association with the offender.
[38] See generally Robert Cover, ‘Violence and the Word’ (1986) 95 Yale Law Journal 1601.
[39] Kornstein, above n 34, 7.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/DeakinLawRw/2004/7.html