Book Review: Simon Statham,Redefining Trial by Media: Towards a Critical-forensic Linguistic Interface

In his first monograph, Simon Statham pursues an ambitious aim by attempting to evaluate how media discourse on crime not only operates in the courtroom but, in fact, becomes a ‘courtroom participant’ (p.46). By developing a ‘Spectrum of Trial by Media’, he demonstrates the media’s effect upon court trial participants and argues that said participants are in fact ‘tried’ in the pages of the press (p.2). With a particular focus on the common law system operating in the UK and the USA, he states that members of a jury are not ‘blank slates’ (p.40), but that their common sense is based on their interaction with social discourses in the media. The title Statham chose for his book – Redefining Trial by Media – connects his work with research in cultural criminology and media studies wherein it is already an established term, defining a ‘market-driven form of multi-dimensional, interactive, populist justice in which individuals are exposed, tried, judged and sentenced in the “court of public opinion”’ (Greer and McLaughlin, 2012: 397). The term became known in 2014 on occasion of the public broadcasting of the Oscar Pistorius trial in South Africa (Johnson, 2016). Unfortunately, Statham neither mentions nor pursues this interdisciplinary connection and thus misses an opportunity to position his timely and intensive research at the intersection of linguistics, law, criminology and media studies where it provides a valuable asset.

Statham opens his book by placing the jury system into historic and systematic perspective. In an attempt to draw lines between common and continental law, he relies on only one linguistic (instead of legal) source. He thus erroneously criticises, for example, a lack of the legal principle of presumption of innocence in continental law (p.7) when, in fact, said principle has a long-standing (European) history. Based on a Latin maxim, it was mentioned in the French Declaration of Rights of Man and Citizen from 1789 and is an internationally acknowledged human right. Statham’s introduction to the notions of power, hegemony and (institutional) discourse reveals his firm grounding in relativist and Marxist ideologies, which he presents as a given. Statham has a tendency to mention ideas from sources other than key thinkers without providing a reference, as on page 14, where he quotes part of the famous line, ‘Not only must Justice be done; it must also be seen to be done’, from the English court case R v Sussex Justices (Ex parte McCarthy, [1924] 1 KB 256).

Statham’s brief discussion of news values is based on the first published, systematic list by Galtung and Ruge (1965) and could have benefitted from including up-to-date research. Most importantly, however, his first chapter introduces the notion that a highly specialised language used by professionals in legal contexts is often incomprehensible and thus has an isolating effect on lay participants, including members of a jury. Chapter 1 covers a lot of ground and the reader catches first glimpses of how Statham intends to build his ‘Spectrum’ that governs the structure of this book: ‘Direct’, ‘Enhanced’ and ‘Reinforced Trial by Media’.

Chapter 2 builds on the notion of ‘linguistic isolation’ from the previous chapter and leads Statham to build a Framework of Jury Isolation with a list of multiple isolating factors, such as the aforementioned technical language or the jury’s conversational role as silent overhearers. To illustrate the isolating effect of the hearsay rule (whether evidence presented as hearsay is admissible), Statham presents an extract from the OJ Simpson trial. It shows how side bar interaction between professionals about legal issues, either while approaching the bench or in chambers, isolates jury members by making them non-hearers. In a section on the concept of the ‘narrative structure isolator’, Statham innovatively utilises the preferred temporal order of core elements of a narrative as identified by Labov. He distinguishes between the temporal order the crime was committed in and how it is (re)narrated in court, now embedded in a trial narrative where bits and pieces of that crime are presented at different times during the trial and in various witness statements. The jury’s task of piecing together (not a courtroom event, actually, but a crime event; p.94) is further complicated by sometimes two or more versions of what happened. Here, Statham, with his linguistic approach, comes closest to what is commonly understood by law professionals as a distinction between an objective truth (how, for example, a crime was committed, as if caught on camera) and a procedural truth (how said crime event is most plausibly presented at trial). A verdict is based on the latter, with jury members, as Statham rightfully points out, filling gaps with their own world knowledge. Here, Statham sees the gateway for societal hegemonic discourse to enter the courtroom by propagated portrayals of crime in the media. Drawing on a study by Smith (1991), Statham compares legal and lay definitions of prototypes of crimes (e.g. what constitutes murder, robbery, etc). It is noticeable for the reader that lay constructs often fall within the realm of the legal definition and could thus be regarded as precedents of said crimes.

Chapter 3 begins with a discussion of tests made with mock jurors, because access to an actual jury’s decision-making process is denied by law. In this context, Statham discusses the relevance of (mock) jurors’ educational level and mentions that Crime-MOPs (Memory Organisation Packets) are not solely built from high-profile cases but average crime-news reports. He briefly outlines a changing presentation of crime in the media (p.114), which reads rather like an abbreviated history of criminology but without any cross-references. He then introduces Critical Discourse Analysis, Halliday’s Systemic-Functional Linguistics, his view of language as a social semiotic and, to a lesser extent, some basic corpus linguistics to pave the way for presentation of his own study. With it he proves a link between jurors’ crime schemata and press coverage of crime stories based on Smith’s work (p.92) and demonstrates how template MOPs of certain crimes are constructed and naturalised through newspaper discourse and how ideologies are transferred from the newsroom to the courtroom, which he terms ‘Enhanced Trial by Media’.

Chapter 4 sees Statham develop his third trajectory of ‘Trial by Media’, by which he explains how legal professionals take advantage of the linguistic vulnerability of lay participants. He begins by distinguishing between a narrative (lay) and a paradigmatic (legal professional) mode as complements in legal–lay discourse and as two ways of making sense of the world. The latter is the field of decontextualisation and logic-based scientific reasoning grounded in profound legal training, which often provides difficulties for lay jurors with regard to understanding. Utilising Lakoff’s Idealised Cognitive Model, Minsky’s Framework for Representing Knowledge and Schank’s MOPs, Statham illustrates how lawyers trigger folk-psychological scripts and thus activate mental representations of, for example, prostitution/pornography in the jurors’ minds. The thus-triggered frames in his example bring with them a notion of consensual sex which, in assault or rape cases, can conveniently construe the action in question as consensual. Statham stays focused on sex-related offences and confirms Clark’s (1992) earlier findings of ‘fiend naming’ strategies, depending on whether the victim is ‘respectable’ or victim-blaming – both in support of a patriarchal system. Highly problematic, however, is Statham’s attempt to connect his findings to the low conviction rate in sexual assault cases, which he regards as proof of ‘Trial by Media’ (p.205f). First, such a conclusion turns a blind eye to the particularly high number of wrong rape or sexual assault accusations compared to other forms of delinquency. Secondly, the required level of proof (beyond reasonable doubt) often provides problems, as these crimes happen in seclusion. Thirdly, an acquittal does not mean that there is sufficient proof to the contrary, but that reasonable doubt remains. In those cases, the legal principle ‘in dubio pro reo’ (when in doubt, for the accused) is mandatory.

In Chapter 5, Statham continues with the notion of ‘Reinforced Trial by Media’ and employs the Appraisal Framework to analyse both closing arguments from the Raelyn Balfour trial. He rightly claims that the legal system is the ‘idealised epitome of judgement’ (p.237), meaning that judgements are made throughout, from investigation to the actual verdict and sentence. Despite this fact, Statham argues that courtroom dialogue should proceed without judgement being passed upon a defendant up until the jury’s verdict (p.253). Here, a discussion of this apparent contradiction could have proven valuable, particularly in light of his findings that both closing arguments (including that from the defence) are highly judgemental, as they show more instances of disapproval (or social sanctions) than of approval (social esteem). It would have been interesting to see how Statham as a linguist might suggest reformulations that are less judgemental. However, the results of Statham’s analysis are hardly transferable, as Statham remarks himself, first because he chose this data precisely because he expected it to be particularly evaluative (p.256) and, second, because it is difficult to generalise from just one trial.

Chapter 6 provides Statham with a chance to round up his linguistically insightful and in parts innovative use of established linguistic frameworks, and to bring forward his more than justified ‘call for a greater consideration of the fundamental position of language within the legal system’ (p.294). Despite all his evidence-led criticism, Statham emerges as a strong supporter of the involvement of lay participants at trial. He, for example, sees a jury’s foremost task as providing a counterbalance in an institution dominated by powerful, perhaps politically motivated figures (p.291), although a jury is only involved in a marginal number of all criminal cases (p.289). As an academic, he regrets not having access to first-hand jury data for analysis, although in reality said analysis could provide additional ground for appeal. Statham is, however, to be supported in his conviction that academia ‘can suggest and affect change’ (p.110), the first aim being achieved by this book.