Richard Burt Duly Noted or Off the Record?

Even Further Preliminaries: The DisAppearing Evidence of Notes, On and Off the Record

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Even Further Preliminaries: The DisAppearing Evidence of Notes, On and Off the Record

If the allegory or unreadability of the law produces an irreducible secrecy through a recursive looping back to an extra-discursive referent, a discourse turned into a thing that is stored in another thing, we may perhaps best unfold and fold up that secrecy if we examine one of the most fundamental way it arrives at “the truth” are most effectively concealed, hardest to read, namely, notes (Derrida 2002, 215-257).9 The most divisible of all documents and not part of any binary opposition, notes have a certain tendency to go missing, and not just in the law. Hans-Jörg Rheinberger observes that “an increasing amount of literature in the history of science, especially from historians of science and technology concerned with micro-historical reconstructions, has been devoted to laboratory notebooks and other forms of laboratory and research inscription” (624). 10 In what Rheinberger calls the “scrips and scribbles” of the laboratory, “scientific knowledge is made to emerge and can be grasped in its emergence” (628). What counts as scientific knowledge is gained, Rheinberger maintains, through a “double loss” (631) of inscribed and transcribed notes mistakenly regarded as inert, transparent, and extrinsic to the research process.11

Notes have a somewhat similarly extrinsic status in the law. Jurors are not allowed to see transcripts of the trial, but the compensatory practice of note taking by jurors during trials is not uniform in the United States (National Center for State Courts’ report, “State-of-the-States Survey of Jury Improvement Efforts” 2007, 33-34). Some judges and states allow jurors to take notes; some provide jurors with notebooks to do so; and some judges and states forbid jurors to take notes. The law also regulates the passing of notes between jurors during a trial. More states and judges have allowed jurors to take notes (but not to pass them) because they seem to help jurors remember and understand evidence during jury deliberations. Even if the jurors’ notes are accurate, they are not entirely transparent and their allowance hardly logical. If jurors need help remembering, logically they should get a copy of the transcript, since it is after all the official court record and taken by a court appointed stenographer. As it stands, notes occupy an odd place both inside and outside the law, used as evidence when questioning witnesses who took them and hence part of the record, on the one hand, and an extra-record supplement based on the trial transcript and never published after the trial by jurors when they are permitted to take them, on the other. Notes record only part of the record and, because they are divisible, therefore always remain partially off the record, the unarchivable ash of the archive: transcripts do not delineate, for example an “Ah ha” moment of discovery, and other such reactions.

“Jameson died 9/11.”

--The Manchurian Candidate (dir. Jonathan Demme, 2004)
In its broadest sense, technology resists being simply returned to the simpler level of pure objectivity, whatever its aspects of systematic and dynamic dimensions that appear to the senses on any given day—such that the designation “object” seems no longer to suffice for thinking it. . . . it is well known there is in technology a heterogeneous force that might be called techno-logical, a strange power (perhaps foreign) though completely human, even superhuman, increasingly difficult to control, whose dynamism puts into question opposition to a different mode of subjectivity than the opposition of the subject to its object. This feeling of foreignness generates fear. . . .

--Bernhard Stiegler, Technics and Time 3: Cinematic Time and the Question of Malaise (170).

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