Blogging Pedagogy - forensic rhetoric

Teaching Argumentation Through Trial Transcripts

Coulson — Mon, 29 Oct 2012 04:46:28 +0000

Author:

Doug Coulson

Image Credit:

Nuremberg Trials Library, Harvard Law School Library

My teaching primarily focuses on forensic rhetoric and the role of narrative, memory, and proof in disputes about past events. This classically includes legal disputes, although it extends far beyond them. In the course I’m teaching now, entitled Rhetoric and the Law, I challenge students to consider the importance of rhetoric to interpretations of evidence in legal disputes, the use of analogical argument in appeals to precedent, and the significance of the adversary system of justice as a dispute resolution model. One of my goals is to encourage the collaborative study of argumentation around topics of public controversy in the spirit of the classical rhetorical exercise known as in utramque partem, in which students learn to discover arguments on opposing sides of controversial cases. I particularly strive to accomplish this by emphasizing the value of casuistry, or case-based reasoning, and the close reading of evidence in trials. This presents a problem of access, however, because while trial records are generally public they’re often not readily available outside of the courts.

The problem of accessing trial records is unfortunate because trial transcripts are excellent sources for the study of argumentation and rhetorical concepts in particular cases. Trials are formally structures argumentation in which legal disputes are narrowed through a process that derives from classical stasis theory, in which both sides are given time to be heard and introduce evidence and rebut the other side, and in which everything that is said is spontaneously recorded. As Robert Ferguson writes, because trial transcripts reflect complete records of court proceedings they reveal, “as nothing else quite can, the real preoccupations in the flow of legal argument,” supplying a better perspective for understanding “the formulation of story that lies at the center of all courtroom proceedings.” See Robert A. Ferguson, “Becoming American: High Treason and Low Incentive in the Republic of Laws,” in The Rhetoric of Law, edited by Austin Sarat and Thomas R. Kearns (Ann Arbor: Univ. of Michigan Press 1994), 103. The opening and closing arguments in trials provide excellent sources for rhetorical study.

To try to make these resources more accessible to my students, I’ve identified various electronic and print resources that make trial transcripts available either in whole or in relevant excerpts. Because many court transcripts are now being electronically generated and scanning technology is more readily available to upload electronic files of older trial transcripts, many trial transcripts are now available online. The following constitute a sampling of the transcripts from famous court cases, both old and new, available online:

Cameron Todd Willingham Trial Transcripts

Clarence Darrow Digital Collection

Clay Shaw Trial Transcripts

Eichmann Trial: The Complete Transcripts

The Leo Frank Case and Trial Research Library

Leonard Peltier Trial Transcripts

Lizzie Borden Trial Transcripts

The Trial of Joan of Arc

The O.J. Simpson Trial Transcripts

Proceedings of the Mary Surratt Conspiracy Trial

Transcripts of the Salem Witch Trials

West Memphis Three Trial Transcripts

In addition to these resources, there are some excellent print sources of transcripts. Among these are various volumes within a collectible book series under the imprint of the Notable Trials Library. Many of these volumes contain extensive excerpts from the world’s most famous trials. In addition, the following print sources contain opening and closing statements from famous and relevant summaries of the evidence introduced in the trials:

Michael S. Lief and H. Mitchell Caldwell, The Devil’s Advocates: Greatest Closing Arguments in Criminal Law (New York: Scribner, 2006)

Michael S. Lief, H. Mitchell Caldwell, and Ben Bycel, Ladies and Gentlemen of the Jury: Greatest Closing Arguments in Modern Law (New York: Scribner, 1998)

Joel J. Seidemann, In the Interest of Justice: Great Opening and Closing Arguments of the Last 100 Years (New York: Regan, 2004)

These resources reflect exceptional laboratories of sorts for the study of rhetorical concepts, and I’ve found that students enjoy analyzing trial rhetoric and it often serves to demystify courtroom proceedings.

Finding Trial Transcripts Online and Exploring 18th-19th Century Crime Broadsides

Coulson — Tue, 14 Aug 2012 03:04:28 +0000

Author:

Doug Coulson

Image Credit:

William Hogarth

I’m teaching an upper-division rhetorical theory course about legal rhetoric in which I focus students on the rhetoric involved in adjudicating particular cases in dispute. The initial unit in the course focuses students on the rhetoric of narrative, memory, and proof surrounding factual disputes in particular cases. Although there are many examples of such discourse, the most classic example is in a legal trial. My goal in the unit is to illuminate certain common topics, or topoi, of forensic discourse as well as to illuminate the contingencies in factual disputes that create opportunities for persuasion. At the conclusion of the unit, the students write a 1,000-1,500 word paper in which they rhetorically analyze opposing arguments regarding an evidentiary controversy in a forensic dispute, which in the context of the course nearly always means a trial. The assignment specifically requires that in addition to a primary source for the arguments the paper analyzes, the paper must include a primary source of the evidence in dispute. This latter source typically includes trial exhibits such as photographs or video and/or the testimony of trial witnesses reflected in a trial transcript. Trial transcripts, however, can be difficult to locate and access.

As a result, toward the end of this unit I conduct an online research tutorial with my students in class designed to assist them in accessing trial transcripts and excerpts from such transcripts. In an electronic classroom in which each student has access to a computer with internet access, I first show students the location and search features of various online resources for trial discourse. One of the greatest sources for such discourse is the Clarence Darrow Digital Collection, which provides free online access to complete word-searchable trial transcripts from the most famous cases of one of America’s greatest trial lawyers. Two other great free online trial archives are the Proceedings of the Old Bailey, 1674-1913, containing details regarding 197,745 criminal trials held at London's central criminal court, and Douglas Linder’s Famous Trials Site, which includes excerpted arguments, trial testimony, and exhibits from numerous famous trials. In addition, certain paid databases available through the University of Texas at Austin contain trial records, such as Hein Online’s World Trials Library and Gale’s Making of Modern Law: Trials, 1600-1926. I also point students toward the print volumes in the extensive Notable Trials Library series, many volumes of which contain extensive excerpts from the trial transcripts in a large number of famous trials, as well as other print sources for opening and closing arguments from famous trials.

As a conclusion to this online research workshop, I have students explore the rhetoric of 18th-19th century crime broadsides from the Harvard Law School Library's online collection of crime broadsides. Beyond teaching additional online research skills regarding legal rhetoric, the goals of this assignment are to further a discussion of the symbolic aspects of legal rhetoric, or how legal rhetoric operates not only to decide the outcomes of legal cases but to shape communal values and norms. To accomplish this, I have students conduct an in-class rhetorical analysis of the texts and images in the database. These materials describe crimes and the apprehension of criminals during the 18th-19th century when such information was widely disseminated in broadsides and public discourse regarding the investigation of crimes common. The assignment both reinforces the availability of many interesting forms of legal discourse online and generates engaging class discussion.

To begin the assignment, I introduce students to the Harvard Law School Library's online collection of crime broadsides. With students at their computers, I demonstrate the site's search features and discuss a couple of sample broadsides as a tutorial of the site. I inform students that their task is to isolate and analyze the ways in which norms and identity are rhetorically constructed in one of the broadsides from the site. The remainder of the class is then devoted to students conducting their own research and posting their broadsides along with a brief rhetorical analysis to a course blog to which they regularly post other assignments. The blog posts may then be discussed collectively as a class with or without requesting individual students to present on their broadsides and analysis. This assignment can be completed in a single class period or span two class periods, depending on the details of the assignment.

I don’t grade the assignment but use it as an encouragement to collectively explore and comment on some fascinating documents regarding the public rhetoric surrounding particular cases of crime. It's primarily designed to engage students in questions considered during the course and to facilitate class discussion. I've used this lesson plan with two classes and both groups of students found the broadsides and their rhetoric fascinating and enjoyed the assignment. Their contributions have been consistently engaged and insightful. The assignment not only provides a thought-provoking ending to what can sometimes be a tedious research tutorial, but has helped me to simultaneously teach online research skills, generate interest in the materials contained in online archives, and illuminate the cultural significance of forensic rhetoric beyond instrumental problem-solving motives.

Analogical Reasoning, Otherwise Known as Legal, Casuistic, Exemplary, or "Rhetorical" Reasoning

Coulson — Tue, 14 Aug 2012 02:51:58 +0000

Author:

Doug Coulson

Image Credit:

Henry Burrows

I’m teaching an upper-division rhetorical theory course about legal rhetoric in which I specifically focus students on the forensic rhetoric of adjudicating particular cases in dispute. Accordingly, among other subjects of the course, one of the units focuses students on the casuistic or “case method” of reasoning from precedents in judicial rhetoric, a mode of reasoning often simply called “rhetorical reasoning” in recognition of its inherently rhetorical quality. My goal in the unit is not only to illuminate certain defining features of legal rhetoric but also to illuminate the nature of rhetorical reasoning. Critiquing as it does principle- or rule-based reasoning, such casuistic or case-based reasoning claims analogical reasoning as one of its central methodological tenets, and analogical reasoning is often simply called “legal reasoning” given its importance to the appeals lawyers and judges make to precedent.

I wanted to design an in-class exercise for students to engage in this form of reasoning at its most basic level and developed an exercise the details of which may be found here . In a nutshell, after breaking students into several small groups, I asked them to formulate four analogies that favored or praised Bob in the hypothetical scenario below and four analogies that tended to disfavor or blame Bob, dividing their analogies equally between those using real and those using fictional sources:

Jack, Jill, and Bob were members of a gang. They went broke and decided to commit a robbery. They decided that the easiest way to go about this would be to wait on a certain street corner in a rich neighborhood until it was mostly deserted and rob the wealthiest-looking person left once the crowd thinned out. They agreed Jack would get a fake gun to use to intimidate their victim so they wouldn’t have to use violence, and Bob would pull the gun while Jack and Jill collected the money and valuables from the victim. The next night the three set out to execute their plan. They hung around the street corner until there were only a few people left, then approached a wealthy-looking man and woman walking down the street and demanded the couple’s money and jewelry while Bob pulled the gun and waved it at them threateningly. The couple initially reacted with shock and did not respond to the demands for their money and jewelry, so Bob waved the gun at them some more and again demanded money. The man made an aggressive motion toward Bob, and Bob pulled the trigger in surprise, which to Bob’s surprise discharged a real bullet. The shot killed the man, who fell into the woman’s arms as Jack, Jill, and Bob fled the scene. When they had gotten far enough away to stop running, Bob demanded to know why the gun was real. Jack told him he could not find a good enough fake and decided a real gun would be much more believable. Jack claimed he thought Bob knew the gun was real.

Although this hypothetical scenario invites analogies that specifically address legal topics, similar exercises could use hypothetical moral or ethical scenarios in the tradition of a casuistic case method.

Students in each of the groups began slowly, one group even complaining after a few minutes of considering the assignment that they found it difficult. By 10 minutes into their discussion, however, all of the students were rapidly developing analogies to satisfy the assignment. Once they began to invent analogies, they quickly discovered there was no end to the possibilities and they enjoyed selecting particularly creative and entertaining analogies from those that came to mind. All of the groups completed the assignment within 20-30 minutes. After they were finished, we reconvened as a class and compared and contrasted each group’s analogies on a multimedia screen, considering what the various analogies suggested about the issues each group identified as relevant to the hypothetical scenario and the experiential quality of analogical reasoning as they experienced it. They immediately realized, among other things, that the sources they used for their analogies might not be appropriate to all audiences, depending as the sources did on cultural experiences that only some audiences would share.

I pointed out to the students as we compared and contrasted their analogies that the analogies developed by all of the groups focused on a consistent set of common topics, including the element of mistake involved in Bob’s claim that he believed the gun was fake, whether Bob was lying about his belief that the gun was fake or whether such a belief was reasonable, whether Bob was more or less to blame than Jack and Jill given that they were all engaged in a joint enterprise and that Jack gave Bob the gun under apparently false pretenses, whether Bob should be held accountable for any harm that occurred given that waving a fake gun while claiming it to be real could foreseeably result in violence, and class issues regarding whether the group were preying on innocents or righting an economic inequity along the lines of Robin Hood. I found the class issues raised by several of the analogies particularly interesting. Simply put, the students raised a host of common topics basic to allocating responsibility to people for past events, and I used this to discuss the topical tradition of rhetoric with the students. We also discussed what audiences the various sources they drew upon in their analogies might appeal to given the experiences those sources assumed to be held by the audience, and we discussed more broadly the differences between analogical reasoning and inductive or deductive reasoning. The exercise proved helpful for all of these purposes.

The assignment not only helped me illuminate the basic premise behind legal reasoning by analogy in the development of judicial precedent and the rhetorical quality of such discourse, but was surprisingly well-received by the students. After the assignment, numerous students referenced it both in later classes and on a course blog as particularly impactul in their thinking about analogical reasoning and its rhetorical qualities. Several students remarked that the experience called to their attention how ubiquitous analogical reasoning is and how readily they develop analogies for persuasive purposes. In sum, asking students to develop analogies regarding a particular moral or legal scenario based on their own experiences in this way appears to have helped students understand the experiential and rhetorical quality of this sort of reasoning in ways assigned readings and lecture alone could not. I also suggested to students that the exercise should prompt them to reflect on how they use other forms of exemplary reasoning, and I think similar exercises could possibly require students to engage in other forms of argument from example with similarly beneficial results.