Here is a narrative. It is a hot day in the summer of 1892. Father and stepmother rise and have breakfast at 7:00. The elder daughter is away visiting; the younger arises just before 9:00 and has a light breakfast. Her father, an elderly man by now, almost seventy (the younger daughter is 31), goes off downtown on business. A banker, he is an important and wealthy man in this sleepy Massachusetts town. The younger daughter talks briefly with her stepmother, who tells her she has received a note asking her to go visit someone who is sick that morning. After telling the maid to wash the windows, the stepmother then goes upstairs. Later that morning, the father comes back. He is tired from his walking, and his daughter helps him to lie down on the couch in the parlor. She then sets up her ironing board to begin ironing a few handkerchiefs, but soon stops to go out to the barn in search of a piece of lead to fix a screen. Coming back twenty or thirty minutes later, she hears something – a scraping sound, or maybe a groan. She goes into the parlor and there she sees her father, lying half on and half off the couch, his head bloody and smashed almost beyond recognition. Numb with shock, she goes out into the hall, calls the maid, and has her go for the doctor. A neighbor, seeing her distress and seeing the maid rush off, comes over. When the maid returns, the daughter, vaguely remembering that her stepmother had returned, sends the maid and her neighbor upstairs to fetch her. There they find the body of the stepmother on the floor of the guestroom, her duster near her hand, her head also horribly smashed in. As it turns out, she has been dead for roughly an hour and a half, since shortly after she went upstairs that morning. Within fifteen minutes, the police arrive. There is considerable fear mixed with distress, since the assassin may still be hiding somewhere in the house, and it is only after a thorough search that fear begins to subside. At the same time, with no assassin apparent, no signs of forced entry, and no robbery, suspicion begins to fall on the younger daughter. This is a terrible mistake. She is a good woman, devoted to her father and on civilized terms with her stepmother. Her free time has been devoted largely to church activities and good works. There isn’t a blemish in her 31 years of life. Moreover, there is not a spot of blood on her, and her hair is perfectly in place. How could she kill these people with multiple blows of a hatchet or an axe and not have any blood on her or show any signs of exertion? And where is the weapon? Certainly it is not one of the old rusty, dusty hatchets in the basement that also show no signs of blood. Had they been used, when could she have cleaned and replaced them in the short space of time available to her? How could she have added the rust spots and the dust after cleaning them? No, this must have been the crime of an outsider, someone who had a personal antipathy to her father, and who, seizing the opportunity of an unlatched side door, had entered the house and hidden. Surprised by the stepmother, he killed her, then lay in wait till the father came home, killed him, and fled the way he came. Witnesses reported seeing at least two strange males near the house. Moreover, her father, if respected, was not a well-liked man. He was stingy, focusing most of his life’s energy on making a lot of money. Only two weeks before, he had had a heated argument with someone to whom he had refused to give a loan, brusquely ordering him to leave the house. In short, this is a horrifying story made even more horrifying by the ordeal of innocence falsely accused.
Here is another narrative. It tells the story of a woman, outwardly unremarkable, but inwardly full of bitterness and hatred almost to the point of madness. This is a woman who never forgave her father for remarrying when her mother died. She is the same woman who, seven years before, when her father had given his half interest in a house to her stepmother, had stopped calling her “mother,” addressing her from then on formally by her last name. The estrangement she feels is so strong that she rarely dines with her parents, as was the case on the fatal morning. Her stepmother, in her view, is “a mean good-for-nothing thing” , as she told a friend five months earlier. And so strong is her antipathy that on the same morning as her stepmother’s murder she corrects an officer investigating the crime: “She is not my mother. She is my stepmother. My mother is dead” . This is a woman internally aflame, full of murderous intent. Only two days before the murder, she confided to a friend that she feared that there were enemies of her father about and that something terrible was about to happen in their home. Was she setting up expectations? The day before the crime, she tried to buy one of the most lethal poisons known, prussic acid, claiming that she wanted to use it to clean the edge of a sealskin cape. The pharmacist quite properly refused to sell it to her as it is never sold except by a doctor’s prescription. Could this poison have been intended for anything else but murder? Lacking it, she was ready on the fatal morning of August 4th, 1892, to kill by other means. The note that was supposed to have summoned her stepmother to a “sick call” was a pure fabrication intended to throw the maid off the scent and to explain the absence of her stepmother during the interval between the two murders. No such note is ever found, nor does any party ever step forward to confirm that they had sent it. She kills her stepmother shortly after the latter goes upstairs to dust the guestroom at about 9:30. Then she hides the weapon. Her dress has been protected from blood by a wrapper or another dress that she also hides. When her father comes home an hour and fifteen minutes later, she sets up her ironing, waiting until he is nearly asleep on the couch. She does not go out to the barn, surely a hellish place to spend twenty or thirty minutes on one of the hottest days of the year. Instead, she fetches her hatchet from its hiding place and kills her father. The bloody protective wrapper or dress and the hatchet are now hidden in a place or places that only she knows of. Coolly, she summons the maid. There are no tears. Nor does she show any sign that she is afraid some assassin may be about. Later, knowing full well that her stepmother never went out, she says that she thought she heard her stepmother return earlier and asks the maid and her neighbor to please go upstairs and check on her. They find what she knew they would find, her stepmother’s body, where she left it. The case is clear. She is the only one who had both the motive and the opportunity to commit this double homicide. The whole idea of a different assassin is preposterous. He would have had to come in unnoticed, kill the stepmother, then hide in the house for an hour and a half for the father to come home, kill him, still unnoticed, not taking anything of value, nor leaving the weapon, but fleeing in broad daylight, his clothes bloody, a bloody hatchet in his hand. It could only have been the daughter. A final incriminating circumstance comes three days later, after she is informed that she is a suspect. She burns a dress in the stove. Is it the bloodstained dress? She says it had paint on it. But this sounds like yet another lie.
This is the famous story of Lizzie Borden, who was tried in the summer of 1893 for the murder, a year earlier, of her father and her stepmother. As you can see, this story is not really one story but rather a contest of stories played out in a contest of narratives. In this, it is no different from any trial or legal dispute. They all start out like cousins of Kurosawa’s film Rashomon, complex narratives in which the agon is itself a conflict of narratives. Prosecution and defense are the antagonists and protagonists (depending on your point of view) who, in their turn, operate like authors, challenged to narrate their stories so effectively that they win credence from their audience, which is either a judge or a jury.
Unlike Rashomon, however, where each narrative is told in turn, a trial is structurally more complex, since prosecution and defense overlap in the composition of their narratives. Not only are they permitted to tell versions of their stories in both their opening and closing statements, as well as in the direct examination of their own witnesses, but they are also permitted to cross-examine witnesses called by the opposition. In this way, the whole larger narrative rendered in the transcript of the trial is the record of a continual switching back and forth from one narrative version of events to the other as the opposing sides seek either to support their own narratives or to undermine their opponents’ narrative. Thus, for example, the prosecution in the trial of Lizzie Borden calls Dr. Bowen, one of the first on the scene of the crime, as a witness to the color of dress Lizzie was wearing on the morning of the crime. This move is an effort to establish that the dress provided by the accused as the one she wore is of a different color from the one she was actually wearing that morning. In making this move, the prosecution works to support two segments of the action in its narrative: that the accused destroyed the dress she wore and that she later caused the wrong dress to be submitted in evidence. This would strengthen both their rendering of the events and their rendering of Lizzie’s character as that of a cunning and deceitful person. But the defense now capitalizes on the presence of this witness in its cross-examination to gain a description of Lizzie’s state shortly after the discovery of the bodies. Defense elicits the fact that Dr. Bowen, after observing the body of Mrs. Borden, came down to find Lizzie surrounded by four women:
Q. What were they doing?
A. They were working over her. I don’t – fanning her and working over her. I don’t know exactly what; rubbing her wrists and rubbing her head. . . .1 Thus, only minutes away from the prosecution’s work on its narrative and the diabolical character at its center, the defense introduces an important supplementary event into its own narrative. The effect of this is to say that we have here no cold-blooded murderer but a loving daughter, very naturally distressed by her discovery.
The transcript of any trial is full of micro-narratives of these sorts that sprout out everywhere you look, pulling credibility from one overarching narrative to the other in a rhythm that carries through the entire collective event. Here is an example of directly competing micro-narratives. In looking for the weapon, four hatchets were found in the basement along with a hatchet head with only the stub of a handle. As it turns out, the latter, though having no sign of blood on it, rusty and covered with ashes, is the only one that fits the cuts on the bodies. In their summation, the defense tells the tale of the handleless hatchet in this way:
It was carried off to the police station and left there on the floor, called of no account, and they went through the preliminary examination on the four [hatchets] that I have laid aside, and found in them sufficient evidence to convict this defendant until Professor Wood appeared upon the scene, and when he told them there was nothing on them, then they had got to look for something else. Then they went and got this handleless hatchet . . . . and as a last resort they come in here timidly and haltingly at the opening of this case, and say, “We bring you this handleless hatchet, but we do not tell you whether it is the hatchet or not” (315-316).
This is a story of pathetic folk, desperate to make their case. Now the prosecution must fire back with its own narrative rendering of the same sequence:
They took that hatchet to the police station. It lay there unnoticed, because they supposed – they had a right to suppose – Professor Wood had told them, Dr Dolen had told them, their own eyes had told them that there was in the hands of the expert in Boston a hatchet covered with blood and hairs [not human, as it turned out]. And so this remained there. But the first hatchet came down from Boston, and we produced the evidence that one hatchet was out of the case. Then Hilliard said, of course, as it was the business of an honest and impartial detective, “See what about this hatchet; take it down.” And Professor Wood took it down and examined it and has reported to you the results. (369)
This is the story of responsible folk, doing their work carefully and methodically.
These small segments are an example of how, throughout any trial, short narratives vie with other short narratives. As such, a trial can be described as a huge, unpolished narrative compendium featuring the contest of two sets of authors, each trying to make their central narrative of events prevail by spinning narrative segments for their rhetorical impact. They fight this out in a tug of war in which the many discrete parts of their two narratives are alternately constructed and deconstructed as they work toward their final summations. As such, a trial is an immensely complicated narrative structure.
But when you look at it closely enough, a trial has even more narrative complication than this.
A narrative lattice-work
At one point in the trial of Lizzie Borden, the prosecution calls Hannah Reagan as a witness. A matron at the Fall River police station, she reports overhearing the following conversation between Lizzie and her sister, Emma, while Lizzie was in the matron’s charge:
Lizzie: “Emma, you have gave me away, haven’t you?”
Emma: “No, Lizzie, I have not.”
Lizzie: “You have, and I will let you see I won’t give an inch. (234)
After this, according to Reagan, Lizzie gestured with her finger that they should be quiet. She then turned her back on her sister and did not speak to her for the rest of the morning. Here, then, is a short separate narrative that is not a part of the events immediately connected with the narrative of the two murders. But the prosecution introduces it, clearly, to suggest that Lizzie has indirectly admitted her guilt.
The defense, in its turn, could have chosen to focus on the ambiguity of this exchange between Lizzie and her sister, but they make another, stronger move. During cross-examination, they elicit the information that Reagan immediately went to the press with this story, and that later she retracted it in a signed statement declaring that it was false. By shifting the focus to a framing narrative that contains Reagan’s original narrative, a narrative in which Reagan is no longer narrator but active player, they seek to undercut her reliability. By converting her into an unreliable narrator, the defense hopes to bury her initial narrative under the immense problems of narrative credibility that we discussed in chapter six. In its turn, the prosecution, during “re-direct” (a return to “direct examination” of the witness), seeks to restore Reagan’s reliability as a narrator by adding its own supplementary details to this framing narrative. Prosecution brings out the fact that the document signed by Reagan was prepared in advance by a friend of the defense, who pressed it on her saying, “If you will sign this paper it will make everything right between Miss Lizzie Borden and her sister” (236). Here, in other words, prosecution gives evidence to imply defense’s unreliability in telling this framing narrative.
The narrative of Hannah Reagan is one of a great number of subsidiary, yet sometimes very important narratives, that were drawn on to supplement the central competing narratives in the trial of Lizzie Borden. In this way this trial, like any trial, necessarily generated a whole lattice-work of narrative extending outward from the core events. Some portions of this lattice-work are more important than others, and to the extent that their narrative reliability is either undermined or supported, the overall structure is rickety or sturdy. In the case of Hannah Reagan’s narrative, the defense, by adding more narrative lattice-work to frame its own rendering of her tale, created sufficient doubt to damage the utility of Reagan’s story for the prosecution, despite prosecution’s repair work on its version of the framing narrative. Still more damaging is the competing testimony introduced later of Lizzie’s sister, who claimed that no such incident took place.
Out beyond such narratives as Hannah Reagan’s there are still more narratives that never make it into the sphere of judicially acceptable evidence. These are narrative satellites like that of the French Canadian farmer who claimed to have seen a man in the woods twelve days after the crime with a hatchet in his hand and blood on his clothes, repeating the words “poor Mrs Borden.” Another is the story of Lizzie’s attempt to buy prussic acid the day before the murders. By order of the judge, for one legal reason or another, such narratives are not allowed to be part of the long narrative the jury hears. Yet despite their unacceptable status as evidence, they remain paratexts, part of that immense constellation of narrative business connected with the trial that the public at large may eventually read and wonder about.
In addition to all these evidential narratives, the trial itself as it proceeds becomes reflexively narrativized. That is, one side or the other will look back from time to time to relate their own or their opposition’s actions to gain a rhetorical advantage. “I heard what Miss Emma said Friday,” says the prosecuting attorney in his summation,
and I could but admire the loyalty and fidelity of that unfortunate girl [sic; she would have been 42] to her still more unfortunate sister. I could not find it in my heart to ask her many questions. She was in the most desperate strait that an innocent woman could be in, her next of kin, her only sister, stood in peril and she must come to the rescue. She faintly tells us the relations in the family were peaceful, but we sadly know they were not. (336)
Here one sister is dressed with the kind of generosity of spirit that damns the other sister. Emma’s generosity in this reflexive narrative rendering of the trial is matched only by the generosity of the prosecutor, who “can not find it in [his] heart” to press the case (even, one must presume, at the risk of letting a murderer go unpunished). This generosity is in turn extended out to the jury who “sadly know” the truth. In this and numerous other ways, both sides exploit the trial itself as a narrative resource. In his very last words, the prosecuting attorney tells a prophetic story about the jurors themselves and in the process extends his narrativization of the trial out into the future:
And, entering on your deliberations with no pride of opinion, with impartial and thoughtful minds, seeking only for the truth, you will lift the case above the range of passion and prejudice and excited feeling, into the clear atmosphere of reason and law. If you shall be able to do this, we can hope that, in some high sense, this trial may be adopted into the order of Providence, and may express in its results somewhat of that justice with which God governs the world. (392)
In the trial of Lizzie Borden, as in most trials for murder in the first degree under US law, the heavier narrative task is placed on the prosecution, who must not simply tell a story, but tell one that is complete. It must have a central figure, fully equipped “beyond a reasonable doubt” with the motivation, opportunity, means and capability to commit the crime – that is, to engage in a complete action with a beginning, a middle, and an end. The defense is not under the same obligation. Their central figure is not necessarily required to do anything significant. She has breakfast, she sets out her ironing, she looks for a piece of lead. If the discovery of her father’s body is significant, it is not a willed action on her part but rather an accident that happens to the unfortunate woman. She calls down the maid, she sends for the doctor, she waits. This is all narrative, of course, but it doesn’t tell much of a story. It is all supplemental events. The real story, the one we are itching to know, is a murder mystery. Who killed the Bordens? But all that the defense has to show with regard to this question is that it would have been possible for some one else to have committed these crimes. They don’t need to specify who it was or why they did it, only that some other party could have done it. From the defense point of view, then, the story of the murder is a shadow story. It is a story that is incomplete, missing key elements. “It is not your business to unravel the mystery,” defense tells the jury at the beginning of his summation. “You are not here to find out who committed the murders. . . . You are simply and solely here to say, Is this woman defendant guilty?” (287-288). In this narrative, the story of the murder is hidden in the shadows.
Trials are full of shadow stories. At the request of the prosecution, the judge introduces a shadow story in his instructions to the jury when he tells them that a person “may be convicted upon evidence which satisfies a jury beyond a reasonable doubt that the act was done personally by another party, and that her relation to it was that of being present, aiding, abetting, sustaining, encouraging” (388). At a stroke, the shadowy outlines of another story begin to glimmer. This is a story in which Lizzie acted in collusion with someone else to commit the murders. But who it was she colluded with (her sister? someone else? more than one?), and who actually did the killing, and why they did it (sympathy? a separate grudge? money?) are terminally missing. Most of the disputed tales in the narrative lattice-work of the trial are to a certain degree shadowy. The story of Hannah Reagan is never resolved. In connection with Lizzie’s account that she stayed up in the barn on one of the hottest days of the year, there is the ancillary story of the two boys, called by defense to testify that they went up into the barn on the day of the murder and found it cooler than it was outside. Were they lying? Were they consciously or unconsciously trying to help the defense? Or were they, well, boys – getting things wrong in the way boys do?
That a trial is full of shadow stories, narratives that are sometimes terribly incomplete as narratives, is not necessarily a detriment to either side. Shadow stories are used all the time, often subliminally and by indirection, as when prosecution describes (narrativizing reflexively) the jury’s visit to the barn in June:
Some kind friend – and I make no misconstruction of it, I do not for a moment suggest it was done with intent to mislead you – some kind friend had opened the front door and windows so that you should not be suffocated by the heat when you were there on that comparatively cool day of June, compared, I mean, with August. (351)
Note how, by denying, he suggests. Protesting his own lack of suspicion, he indicates by negation the shadowy possibility of some “friend,” more cunning than kind, who purposely adjusted the atmosphere in the barn to support the defense.
Motivationand personality A shadow story, it can be argued, is only an extreme example of the inevitable condition of any narrative. As discussed in chapter six, reading narrative is a matter of filling in gaps. Here I am using “shadow story” (necessarily a vague concept) to mean a story in which the gaps in the narrative are so great as to prevent the story from achieving some general reader satisfaction that it is complete. Yet it must never be forgotten that it is we, the readers, who do the completing of any story by filling its many inevitable gaps. I bring this up at the start of this section because arguably the most important gap that we are called upon to fill in a narrative of criminal law is motive. As I argued in chapter ten, character and motivation are often more difficult to make out than actions and events. You can establish with a certainty that specific events happened – that two people were killed by violence. You can often establish to a certainty what they were killed with – in this case, a weighted sharp instrument, most likely a hatchet. These are gaps for which we get a lot of assistance from the evidence. But in the narrative of a trial, motive is necessarily out of sight. It is inferred from evidence, but can never be produced. It is something that you can neither hold nor see. Of course sometimes motives can be obvious, just as sometimes people can appear to be so simple that their motives are transparent. But it is also true that people can be highly complex. Moreover, there is always the possibility that someone who appears simple is in reality complex.
In addition to the problem of motive, the prosecution also faces the additional, and often more complex, challenge of narrativizing personality. Motive in itself is not sufficient. One may have the motive to commit murder and yet lack the kind of personality that would enable one to carry through with it. Indeed, one shadow story in the Lizzie Borden trial is that of a woman who passionately hated her stepmother and bitterly resented her father’s remarriage and his partiality to this hated stepmother – in other words, a woman who had a strong motive to see them dead – yet who did not have the kind of personality that would permit her to murder them. The prosecution, then, had to work hard to establish not only motive – Lizzie’s hatred for her stepmother and her resentment of her father – but also the capability of carrying through such a crime. To this end, they featured what seemed to be Lizzie’s “lack of affect” – the fact that she did not scream when she found her father’s body, that she sat and waited in the house after this discovery, that she could correct the investigating officer when he called Mrs. Borden her “mother,” in short, that “she was cool,” to quote Officer Fleet (173). It is hard work, because this lack of affect is a narrative gap that can be filled with other psychological accountings – as, for example, shock. And, as the defense doesn’t hesitate to point out, prosecution’s task is made all the more difficult by the fact that Lizzie’s record up until August 4, 1892, indicates a women who “led an honorable, spotless life; she was a member of the church; she was interested in church matters; she was connected with various organizations for charitable work; she was ever ready to help in any good thing, in any good deed” (253).
Civil trials: stories without motivation
In US criminal law, as in the criminal law of many countries, establishing criminal intent or motivation (what is referred to as mens rea) is essential to the prosecution’s case. But the same is not necessarily true in US civil cases. Civil cases concern themselves with events, actions, and conduct, and often do not need to go further. The questions asked in tort cases are: Did injury occur through this action and Is the defendant liable? If the event at the heart of the case is brought about through negligence – my poorly parked car drifting into my neighbor’s – it makes no difference if my character is unblemished and my intentions free of any malice toward my neighbor. I or my insurance company will still have to pay for my neighbor’s fender if the case goes against me.
If, however, my car rolls over my neighbor and my negligence is egregious, perhaps even part of a pattern of negligence, then we may have a criminal case here, with the charge of criminal negligence. Then my character, at least, will need looking into.
Masterplots & types
The problem in criminal law of establishing motivation and the requisite personality for the deed makes the deployment of masterplots especially important. As we noted in chapter three, masterplots come equipped with types – characters whose motivation and personality are an integral and often fixed element of the masterplot. As such, they can be powerful rhetorical tools when activated. They can absorb the complexity of a defendant’s human nature into the simplicity of type. In the trial of Lizzie Borden, the prosecution pulls out all the stops in the deployment of masterplots and types. Even the handleless hatchet is made to fit into a masterplot – no less a one than the story of Christ. This happens during prosecution’s attack on defense’s scornful belittlement of the hatchet: “What is the sum of it all? A hatchet head is found in that cellar, despised and rejected of men at first, because a false king was set up for them to worship, and it was only when he was deposed that they thought of trying what was there in this one” (370). Here prosecution invokes the prophecy of Christ that is commonly purported to be in Isaiah – “He is despised and rejected of men; a man of sorrows and acquainted with grief” (Isaiah, 53: 3) – which would have rung a responsive chord in the hearts of this nineteenth-century American jury. But as so often with this kind of rhetorical move, it depends for its effect on not thinking too closely about the implications (is the handleless hatchet an agent of redemption, sent by a merciful God? and are we to “worship” it?).
In constructing Lizzie from available masterplots, defense has an easier time of it, since so much of the visible record would indicate some conformity between Lizzie’s life and the masterplot of the virtuous daughter. She pursued her household chores, attended church, did good works, cared for her father (who met his death wearing her ring on his finger, given to him when she was twelve). Defending counsel underscores this in his summation: “The heart waits to learn what theories they will get up about this woman without evidence. First, create your monster, and then put into him the devil’s instincts and purposes, and you have created a character. But start with a woman, with woman’s impulses and a daughter’s love, and your imaginings are foreign and base” (313). Note how defense plays the gender card here, arguing that women by their nature are incapable of such base acts. Even in his grammar he makes evil incompatible with womanhood – “put into him the devil’s instincts.”
Counsel for the prosecution counters by taking up this gender assumption directly: “While we revere the sex,” he tells the all-male jury, “while we show our courtesies to them, they are human like unto us. They are no better than we; they are no worse than we.” So far so good, but by this state of equality in the scale of goodness, prosecution does not mean to imply that women’s characters are the equivalent of men’s. There is a whole range of less appealing female types and stereotypes ready to hand for him to draw on, and this he proceeds to do: “If they [women] lack in strength and coarseness and vigor, they make up for it in cunning, in dispatch, in celerity, in ferocity. If their loves are stronger and more enduring than those of men, am I saying too much that, on the other hand, their hates are more undying, more unyielding, more persistent?” (327). Establishing the type, he follows through by invoking a widely known narrative rendering of a chilling masterplot:
I read in my library of history and fiction that many of the most famous criminals have been women. I am told by the great master of human nature, the poet who was almost superhumanly wise, that when the courage of a man failed, it was the determination, the vigor, the relentless fury of a woman, that struck the king down, that her husband might succeed to the throne. (327)
Calling up the masterplot of Macbeth and the type of Lady Macbeth, prosecution not only invests his argument with the aura of Shakespeare’s “superhuman” wisdom, but holds up to these men in the jury the model of a woman who can both kill men and dominate her husband. How effective it was, we can only guess. The prosecuting attorney draws on male masterplots and types as well in constructing Lizzie – Cain (340, 342), Judas (346) – but he throws most of his effort behind the elaboration of a specifically female type, stressing its otherness from types that the all-male jury might be capable of identifying with. In this way, he meets the challenge of the strangeness of the murders, their improbability. Projecting this type of women permits the construction of an antagonist whose psychology is as mysterious as the crime. “You are neither murderers nor women,” he says to the jury, “You have neither the craft of the assassin nor the cunning and deftness of the sex” (357). Here he not only links murderers and women, but also places both categories outside normal male experience. He thus renders invalid any effort by “normal” men to draw on their experience or empathetic understanding in dealing with these radical others. Women can do things far beyond the capabilities of ordinary men. How was it, for example, that Lizzie was not covered in blood? “I cannot answer it. Women’s deftness, the assassin’s cunning, is beyond us” (363). Where is the handle to the handleless hatchet? “There are plenty of ways in which a woman can conceal that sort of thing” (364).
In non-fiction narrative, as a trial purports to be, the ultimate form of inexplicable motivation is madness. It follows that mad people can bring about the weirdest “true” stories, stories that defy our common understanding of how people (even women) are motivated. Defense knows this, and in its opening comments tries to neutralize the power of this type by emphasizing its improbability:
Fact and fiction have furnished many extraordinary examples of crime that have shocked the feelings and staggered the reason of men, but I think no one of them has ever surpassed in its mystery the case that you are now considering. The brutal character of the wounds is only equaled by the audacity, by the time and the place chosen, and, Mr Foreman and gentlemen, it needed but the accusation of the youngest daughter of one of the victims to make this the act, as it would seem to most men, of an insane person or a fiend. (253)
Prosecution, undeterred, seizes on this possibility as well. Lizzie was not simply a woman, which was bad enough considering a woman’s characteristic cunning and ferocity, she was also crazy: “We find her then set in her purpose, turned into a maniac, . . .. and so the devil came into her, as God grant it may never come to you or me, gentlemen” (374). And this is how Lizzie Borden has gone down in history: the crazy lady who killed her parents for no reason at all. Before the trial, she was already immortalized in a rhyme that has survived to the present day:
Lizzie Borden took an axe,
And gave her mother forty whacks.
When she saw what she had done,
She gave her father forty-one.
This, too, is a narrative. It tells the story of someone so ferocious and so bizarre in her motivations that all it took to kill her father was her satisfaction with the job she had done on her mother. The jurors, however, thought differently. They acquitted Lizzie, and she went on to live comfortably in her father’s house for another thirty-four years.
Revising cultural masterplots
Suppose that Lizzie Borden was truly (not just legally) innocent of the murder of her father and stepmother. And suppose further that she was nonetheless convicted of these crimes and eventually hung. And suppose still further that it subsequently became clear from interviews and other evidence that the jury had been in part swayed by prosecution’s characterization of women as by their nature more ferocious than men, more cunning, and more inclined to nurse a grudge. Here would be a situation in which the power of the culture itself, residing in the deeply inculcated beliefs of a dominant element of that culture (from which were drawn the male members of the jury), would have prevailed without at all violating the letter of the law. We have made a number of suppositions in this instance, but there are many who would argue that fidelity to the law is no guarantee that those on the margins of cultural power – those marked by race, ethnicity, sex, sexual inclination, religion, or some other sign – will achieve justice in a way that comports not just with the letter of the law but also with democratic ideals of fairness.
How would you change such a state of affairs? One way, of course, would be to change the legal system so that women and others on the margins of power are included in juries. Change the audience for these narrative contests, in other words, by enlarging the pool from which it is drawn. And this has happened, though it is not so much a revolution as a greater fidelity to the original US constitutional right to be tried by a jury of one’s peers. But another way to lessen the power of cultural assumptions in these legal contests would be to change the audience by changing the way it thinks. And since the prejudicial types that play a role in judicial unfairness are embedded in cultural masterplots, it has been argued that the way to make a deep cultural transformation is through the dissemination of counter-narratives, narratives that undermine or counterbalance the dominant masterplots of a culture and thus weaken the power of prejudicial types. Given how thoroughly narrative forms saturate our thinking about the world, it would seem logical that stories of the disempowered would be excellent instruments of cultural transformation. In the last couple of decades, two movements, Critical Legal Studies and Critical Race Theory, have both stressed the power of narrative to mitigate the kinds of injustice to which the legal system is, or has been, blind – kinds of injustice like that of my suppositional Lizzie Borden. Broadly, “the storytelling movement” in legal study is founded on the belief that
[n]arrative has the unique ability to embody the concrete experience of individuals and communities, to make other voices heard, to contest the very assumptions of legal judgment. Narrative is thus a form of countermajoritarian argument, a genre for oppositionists intent on showing up the exclusions that occur in legal business-as-usual – a way of saying, you cannot understand until you have listened to our story.2 A trial, then, for all the narrative contestation that goes on within it, may still exclude important counter-narratives simply by cultural inertia. What is advocated by the storytelling movement is the dissemination of narratives that would enlarge the ways in which a culture thinks about the people within it, opening up possibilities of justice that a mere following of the rules would not allow.
The argument that has raged over the story-telling movement has focused on several interrelated issues. One is the extent to which the legal system should broaden the range of stories allowed into legal decision-making. Should, for example, the lawyer defending my suppositional Lizzie Borden be allowed to call up witnesses to give first-person narrative accounts of how they have been victimized by gender stereotyping? If so how many? Are there any limits to what they may include and how they narrate? Must they typify? How is the typical determined? Another issue is whether or not stories should, or for that matter could, be used as a basis for law. As Martha Minow has argued, “commitments to narrative revel in particularity, difference, and resistance to generalization.” As such, they are a risky foundation for law, which is a structure of propositions and therefore necessarily abstract: “Stories alone do not articulate principles likely to provide consistency in generalizations to guide future action; stories do not generate guides for what to heed or what additional stories to elicit. Stories on their own offer little guidance for evaluating competing stories.”3 In reply, it is argued that precisely because of the hard abstractness of the law we need the human leavening that narrative allows. This is implicitly acknowledged already in the sentencing phase of capital cases. Because the life of the accused is at stake in such cases, there is considerable latitude in allowing the introduction of narrative material that might mitigate the argument for capital punishment. A third issue turns on just how completely we are the prisoners of the masterplots we grow up with. In the extreme position, our reason is helpless when it comes to changing the predispositions that have been loaded into our minds through stories. It is therefore only through stories that these predispositions can be changed. On the other side, it is argued that, powerful as stories can be, we are also amenable to reason. Indeed, because stories can be so powerful, working as they do directly on our emotions, it is essential that we give final authority to rational argument.
As of this writing, both sides in this argument are still quite far from agreement. And it may well be that there can be no final consensus about where lines can or should be drawn in these issues. This is yet another field with many gray areas. Of course, just because there are gray areas and there may be no hope in gaining some final exactitude is no argument against taking the issues seriously and trying to sort out answers.
Battling narratives are everywhere
The legal trial is by no means the only arena in which stories are made to do battle. One finds these contests almost everywhere. What distinguishes legal contests is the intensity of concentration both of and on narrative and the degree to which the contest is regulated. A trial has an umpire, the judge, who interprets an array of rules that govern the narrative contest over which he or she presides. The judge rules on what can or cannot be included, on who can speak, when they can speak, how they can speak, on how parts of the narrative may or may not be elicited from subsidiary narrators or the witnesses, and so on. But in less regulated forms, narratives are in combat in most compartments of life, public and private. Academic debate is frequently a narrative contest with, depending on the field, varying degrees of refereeing. Most obviously in the field of history, researchers spend their professional lives coming up with new narrative renderings of old stories, often with newly discovered supplementary or even constituent events. Less obviously, much of the theoretical work in fields ranging from physics to economics is a contest in the rendering of deep structural stories (as, for example, that every action has an equal and opposite reaction or that bad money drives out good). These are stories that undergird a multitude of the longer and more particularized narratives of everyday experience. Establishing these universal stories involves an extended agon of narratives (results of experiments, accounts of business failure) set against each other.
Political contests, though they ostensibly focus on issues, are often a chaos of narrative contestation. There is some regulation of these contests on the floor of congress or parliament, but on the campaign trail, the contest of narratives can be unreined. Much of the energy of a campaign is devoted to the manufacture of narrative discourse within which opponents situate the excellence of their own character and, more often than not, the sad insufficiencies of their rival’s character. Commercial advertising is a constant warfare of micro-narratives showing sad tales of folks deceived into paying hidden charges to their long distance carriers or happy tales of folks empowered by their automobiles. Finally, what is writ large on grand legal, intellectual, political, or commercial stages, is also a common occurrence of everyday life. When neighbors quarrel, or friends fall out, or family members recall their grudges, or lovers recriminate, it is almost invariably a matter of people trying somehow to certify their narrative version of events against competing versions.
“You said such cruel things to me. And then you flounced out of the
“I was only trying to help you. And I didn’t flounce. My hip is bad.”
“Bad hip, my eye. You flounced. And you were smirking.”
“I wasn’t smirking, I was in pain. I bit my tongue at lunch. You saw how
swollen it was.”
Some of us get into these contests more than others. But one way or another, professionally or in our personal lives, we find ourselves in contests of narrative. Some of these make us wiser. Some don’t.
Selected secondary reading
Major works in the field of “Law and Literature,” which includes both proponents and critics of critical legal studies and critical race theory, are Ronald M. Dworkin, Law’s Empire (Cambridge, MA: Harvard University Press, 1986); Sanford Levinson and Steven Mailloux, eds., Interpreting Law and Literature: A Hermeneutic Reader (Evanston, IL: Northwestern University Press, 1988); Stanley Fish, ed., Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Durham, NC: Duke University Press, 1989); Peter Brooks and Paul Gewirtz, eds., Law’s Stories: Narrative and Rhetoric in the Law (New Haven: Yale University Press, 1996); and Richard A. Posner, Law and Literature, revised edition (Cambridge, MA: Harvard University Press, 1998).
Additional primary texts
About Lizzie Borden, the text I drew on for examples in this chapter is Trial of Lizzie Borden, edited by Edmund Pearson. This book has long been out of print and contains an introduction that is quite partial to the prosecution. But it has an ample selection from the trial, including stretches of direct and cross examination, opening and closing remarks by both the prosecution and defense, the judge’s instructions to the jury, and Lizzie’s testimony at the inquest. There have been many theories about these murders. One not entirely implausible argument contends that neither Lizzie nor her sister, Emma (another perennial candidate), nor Dr Bowen, nor Bridget, nor a stranger killed the Bordens, but rather Andrew Borden’s illegitimate son. This is Arnold R. Brown’s Lizzie Borden: The Legend, the Truth, the Final Chapter (Nashville: Rutledge Hill Press, 1991).
One good text on another famous trial that is currently on the market and that includes both trial transcript excerpts and related material is Commonwealth vs. Sacco and Vanzetti, edited by Robert P. Weeks (Englewood Cliffs, NJ: Prentice-Hall, 1958). Of course, the law section of any good library abounds in case studies and trial transcripts. There are also a fair number of novels, plays, and films that are largely structured as trials in which different narrative constructions of the same evidence carry the agon. One of the most famous, and successful, of these is the film version of Judge Robert Traver’s 1958 novel, Anatomy of a Murder, which was nominated in 1959 for numerous Academy Awards. Another is the screen adaptation of Twelve Angry Men (1957). Originally a television play, the narrative is largely confined to the deliberations of twelve jurors in the jury room. Two other notable film adaptations in which narrative reconstruction during a trial scene predominates are Agatha Christie’s short story and 1953 play, Witness for the Prosecution, filmed in 1957, and Harper Lee’s To Kill a Mockingbird (1960), which was made into a movie in 1962.
One problem with stressing the narrative use of the trial scene is that it obscures a main point in this chapter, which is that narrative contestation can be found throughout the field of life-representative texts, fictional and non-fictional (just as it can be found throughout the texture of our lives). Any well-written narrative holds us because there are a plurality of possible stories lying ahead of us as we read. In our minds, these stories jostle with each other. This is a good working definition of suspense. If the perennial problematic narrative, Rashomon (and its 1964 American adaptation, The Outrage), is a kind of high-water mark of unresolved narrative contestation, any complex narrative can be read, viewed, or taught as a process of narrative contestation. In this chapter, and these recommendations, I have focussed on trial literature because it so vividly anatomizes this condition of narrative.
Notes to chapter eleven
1 Edmund Pearson (ed.), The Trial of Lizzie Borden (London: Heinemann, 1937), p. 151.
2 Peter Brooks, “The Law as Narrative and Rhetoric,” in Peter Brooks and Paul Gewirtz (eds.), Law’s Stories: Narrative and Rhetoric in the Law (New Haven: Yale University Press, 1996), p. 16.
3 Martha Minow, “Stories in Law,” in Brooks and Gewirtz (ed.), Law’s Stories, p. 35.