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The discourse of Jury trial advocacy: The potential for distortion of meaning in the age of a new social consciousness

Fisher, Eric (2018) The discourse of Jury trial advocacy: The potential for distortion of meaning in the age of a new social consciousness. PhD thesis, Murdoch University.

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Abstract

This thesis argues that there is a need to reappraise the significance of a jury in the adversarial criminal trial. A jury can no longer meet a prime criterion of its worth, which is that it brings to its decision making the collective common sense of the community from which it is drawn. In a new culturally diverse society, it is not representative enough to do so. Today’s jury does not comprise individuals from a single culture. It represents diverse cultures and sub-cultures, people from each of which will extract their own social meaning from courtroom discourse. This means there is a need for law to embrace a cross-disciplinary approach to adapting the discourse of adversarial law to contemporary society. It should recognize the need for courtroom advocacy to move beyond appraising the formal language competence of contributors. Standard accounts of language are inadequate to reveal the potential for discursive distortion of meaning. In fact, the language of courtroom discourse only promotes an illusion of transparent portrayal of facts, blinding the search for substantive truth in justice with the pragmatic allure of legal truth. Jury trial advocacy has in common with literary invention the power to press language into use to serve the preferred ends of the author. Each applies meaning to words according to context. Each brings to the narrative their own pre-understanding, or prejudices. Each constructs its narrative in contemplation of the minds it seeks to persuade and convince. But, courtroom advocates should not consider witnesses as manipulable characters in the narrative of the case; rather, they are contributors to its development. In this new diverse society, courtroom advocates should draw on lessons from language and literature to interpret, and understand the meaning of the narrative of law that they build in adversarial trials before jury.

Publication Type: Thesis (PhD)
Murdoch Affiliation: School of Arts
UNSD Goals: Goal 16: Peace, Justice and Strong Institutions
Supervisor: Trees, Kathryn
URI: http://researchrepository.murdoch.edu.au/id/eprint/42917
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