For most of human history, the idea of being able to conjure up theatrical entertainment at will might have seemed bizarre or even sinister. But since its invention barely a century ago, television — which is, essentially, “instant theater” — has become so much a part of the culture that it affects our thinking in ways we don’t notice. 

One way it does this is by supercharging the theater’s reach and power to such an extent that the distinction between entertainment and less frivolous pursuits, and between TV and real life, becomes blurred. This, in turn, allows elements of entertainment — not to mention fantasy and emotional stimulation — to seep unnoticed into areas where they don’t belong, resulting in what, in days gone by, might have seemed to be a travesty or farce.

Theatrical justice

A glaring example can be seen in the field of politics, where, nowadays, playacting, posturing and façade often trump substance, and where candidates who are already media stars have a huge advantage over those who aren’t. But a less conspicuous example can be found in our criminal courts, where sentencing is influenced by telegenic tongue-lashing rituals known as “victim-impact statements,” and where juries can be swayed more by the theatrical abilities of the attorneys than by the merits of the cases.

The idea behind victim-impact statements — which have been around since the 1970s and bear a striking resemblance to the emotional outbursts that spice up tabloid TV talk shows — is to give victims and their families a chance to express how they’ve been affected by the crime. This, according to the US Department of Justice, is “important for the Court to know” and assists the judge in determining the proper sentence.

That might seem reasonable at first glance, but underlying it is a subliminal assumption that the severity of the punishment should be proportionate to the pain and suffering caused by the offender. By that logic, murdering someone who had no family or friends would merit a lighter sentence than murdering someone who was widely and clamorously mourned — a proposition as heartless as it is unjust.

What’s more, victim-impact statements are seen as “bonus” punishment for the guilty, who, presumably, will be racked by shame and remorse when confronted with tearful testimony about the anguish they’ve caused. But, as most schoolteachers learn early in their careers, that kind of attention can instead have the opposite effect — especially on culprits of the worst kind, who may get a perverse thrill from witnessing dramatic confirmation of their own power and their victims’ distress.

Rethinking fairness in the judicial system

As for the jury being unduly influenced by the histrionics of the lawyers, why not go a step further and abandon all pretense of fairness by having the lawyers run a footrace to determine which side prevails? That would at least remove any possible subjectivity from the equation, since histrionic appeal, like beauty, lies in the eye of the beholder — although the wealthiest defendants would still have an advantage in being able to afford the swiftest advocates. 

Clearly, some adjustments to our judicial system are needed if criminal justice in the US is to be more than a lofty fantasy. Of course, making those adjustments is easier said than done. But a step in the right direction, aside from doing away with victim-impact statements, might be to require that at each criminal trial, key discourses — say, all opening statements, summations and closing arguments — be funneled through the same court official. This individual would serve as a neutral mouthpiece for both the defense and the prosecution, reading their statements aloud in order to remove the biasing factors of charisma and theatrics from the picture. That way, the cases for both sides would be presented with equal force at critical junctures in the proceedings, minimizing any advantage that might result from one attorney being a better showman than the other. 

A criminal trial should be neither spectacle nor psychodrama; it should serve only as an instrument of justice. But, as her portraits and statues silently remind us, Lady Justice is blind to all biasing influences; so, if that blindness is anything short of total in both range and degree, we’re not getting justice — no matter how much we might enjoy the show. 

[Patrick Bodovitz edited this piece]

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

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