"The Theatre of the Trial"

This paper is about the pervasiveness of a metaphor. Why is the trial so frequently compared to the theatre? On first impressions, this may be considered unremarkable. After all, many practices draw the comparison (sporting events, war, fashion). It is also easy for an audience to recognise certain ‘theatrical’ features in the trial; the costuming, staging and the ritualised behaviour required of those in the courtroom. However, what is remarkable is the consistency with which the epithet ‘theatrical’ has been attached to trial practice. References to the trial as ‘theatrical’ occur as far back as the 1580s. Not only is this almost 500 years ago but it is also nearly as long as the formal theatre—in other words, a building where dramas are staged—has existed in England.  

 Yet despite the popularity of the metaphor, or perhaps because of it (as what is self-evident hardly warrants further investigation), exactly why and how this metaphor has been used has never been analysed in detail. Closer examination shows that the more a trial is deemed ‘theatrical’, the more it has strayed from some implicit belief of what the trial is meant to be or meant to do. These largely unstated goals of the trial are positioned as irreconcilable with the goals of the theatre. The metaphor is therefore structured by a dichotomy. The trial is about truth-telling and high stakes,and the theatre is about artifice and entertainment. Theatricality consequently often has heavily pejorative connotations for legal professionals and is associated by them with falsehood This attitude is in keeping with Elizabeth Burns’ argument that a pejorative conception of ‘theatricality’ can only exist if there is an implicit dichotomy being made between natural and theatrical behaviour. In this paper I will explore the history of the usage of the term theatrical in relation to the trial, considering how ‘theatricality’ functions to police the boundaries of appropriate behaviour in the trial, and how this may work to the detriment of lay participants.

Kate is a Senior Lecturer at York Law School. She holds a PhD in Law from the LSE and a PhD in Theatre and Performance Studies from the University of Sydney. Her research interests span law and theatre, criminal justice and laypersons and the law. Her book, Litigants in Person in the Civil Justice System: In Their Own Words is forthcoming this year from Hart. More details of her publications (including those on theatre & trials) can be found here: https://pure.york.ac.uk/portal/en/persons/kate-leader