Spillover: Studying the Trial

Response to Akhila Ananth’s Commentary

Susan Hirsch

What a treat to read the three Political and Legal Anthropology Review articles on trials–spectacular ones at that (the trials as well as the articles!)–and to digest these along with the detailed interdisciplinary commentaries also in that issue, and the continuing conversation, which is taking place in many venues, including public symposia and on the website. This lively reconsideration of scholarship on trials is evidence that trials engage us intensely. A staple across disciplines, the trial genre invites new approaches and yields remarkable new meanings. In her consideration of the multiple re-interpretations of the trial of Joan of Arc, Winnifred Sullivan reminds us that the conversation about trials among academics shifts over time in ways that reflect new tools of theory and analysis as well as new fashion in academic discourse itself.

In the insightful commentary on the University of California-Irvine symposium focused on the legal anthropology of trials (which included discussion of one of my books), Akhila Ananth highlights an evolution within legal anthropology in the way that scholars have engaged and interpreted trials. The author praises Justin Richland’s concern to direct attention to the metadiscursive aspects of interaction by trial participants in order to allow for multiple and un-fixed interpretations of the meaning of the trial and of other related phenomena, such as the language used in the trial. In his fine and sophisticated analysis of language in trials in Hopi courts, Richland does indeed move the anthropological study of trials into new areas. But I would disagree with the implication that Richland’s most innovative contribution as his move away from a legal anthropology that purported sought to establish the truth of the meaning of the language used in court toward a more open-ended analysis that highlights interpretations meaningful to Hopi people themselves and, as well, invites readers to make their own interpretations. The stated and implied dichotomies of “truth” / “multiple meanings” and “voice of the anthropologist” / “voice of the trial participants” seem strained and unfamiliar to me as a way of locating my own work–and that of others–in relation to Richland’s. Before elaborating on that concern, let me note that in my view a more significant contribution of Richland’s work–one that clearly puts him on the leading edge of an evolutionary trajectory in the legal anthropology of trials–is that he is able to show complex macro-political struggles emerging in and shaping micro-level discourse in the courtroom. Many have tried (myself included), and Richland’s effort constitutes a new model for how to mobilize an analysis of linguistic ideologies toward that end. He is correct in his assessment of the achievement he’s made with the respect to the politics of tradition, in particular: “What is revealed is the degree to which representations of tradition, like representations of law, are always political, all the way down” (p. 86). To demonstrate this down at the level of fine features of linguistic interaction is a tremendous achievement.

My slight quibble with the commentary from the Irvine roundtable did lead me to reflect on truth, authority, interpretation, and meaning in my own experience of analyzing trials, particularly in the research for Pronouncing and Persevering. At the time I was heavily influenced by conversation analysis and other forms of discourse analysis, which informed the development of the conventions of transcription that we still use as well as other conventions of methodology, such as the careful analysis of the transcripts of linguistic interaction. Because ethnomethodology was a crucial influence on some of the major early proponents of these approaches, the analysis of transcripts in which we engaged included considerable debate over what the speakers were up to, or thought they were up to, based on analysts’ understandings of how language works. The question of whose interpretation–the anthropologist’s or the speaker’s–was being offered as analysis was often quite blurred.

Many of the most prominent analysts positioned their findings as “best guess” interpretations. Max Atkinson, Paul Drew, Gail Jefferson, Mack O’Barr, and others routinely invited fellow academics to bring their best guesses to transcripts in the corpus they had amassed. Workshops that put parts of the transcript–sometimes translated, sometimes transliterated–in front of colleagues, students, and interlocutors led to intense discussion of topics ranging from what an utterance might mean in terms of the linguistic effect on the trial, the positioning and/or intent of the speaker, or the flow of interaction among many other options. The collaborative spirit and resulting rich discourse of such collective encounters with trial transcripts led me to share transcripts with Kiswahili speakers while I was conducting my research on Islamic courts in Kenya, and, when I was writing about the trial data, I involved Kiswahili and English speakers in analyzing through parts of the transcripts. The resulting interpretations were quite wide ranging and not surprisingly some showed rather limited understanding of the cultural or linguistic context. And yet this method was very stimulating for the ethnographer and those invited to look in on one else’s data in part as a reminder of the myriad meanings emergent in linguistic texts. Once, when asked to talk about my research with a group of ethnomusicologists, I brought along my handouts of trial transcriptions and, after leading them through my analysis, asked whether they had other interpretations–an approach I routinely took in presenting that material. They engaged actively in offering their views but afterwards expressed great disappointment that I had not brought the audio tapes of the trial itself. Several offered the following explanation: “We deal with sound and would have gotten something out of the sound of their voices, even if we can’t understand their words.”

Underpinning my interest in involving many others in the analysis of my data was an ethic of opening up trial transcripts to multiple interpretations and these influenced the analysis I ultimately offered in my book, although, in the style of the time, perhaps, I did invoke too much ethnographic authority. Relatedly, another ethic drove some of my methodological decisions. At the time conversation and discourse analysts and other sociolinguists routinely tried to provide as much data as possible in their texts, so that others could follow their analysis and enter into conversation about it, especially when reading published conclusions. This ethic made dissertations long and publishers cranky. Including transcripts of complete trials in my book–which I had argued for–was dismissed as an expensive and unrealistic option. Where do we stand on such issues and ethics at present? For those of us who study trials, the possibility now exists to link our readers to full transcripts of much of our data. Transcripts of many famous trials are on the web, which also includes large amounts of related information such as legal briefs and news accounts. Readers eager to put our heavily analyzed snippets back into their linguistic and legal context can do so much more easily than in the past. As our books get leaner and thus include less and less that is extraneous to our arguments about theories (and the brief examples needed to demonstrate them), the opportunity to make available more and more of any particular trial dossier has become possible through the internet, accompanying CDs, etc. But are we taking advantage of these options as legal anthropologists interested in language? In my recent book on the federal court trial of men accused of bombing two U.S. embassies in East Africa, I cited the website that includes the entire 7000 page transcript. But I did not write the book in a way that would make it easy for readers to explore my analysis through that data. The longstanding invitation to others to bring their analytic skills, whether lay or expert, to our linguistic trial data is evidence that we are willing to cede our authority over the analysis — and yet the limited ways in which we have taken advantage of new media to give others greater access suggests some ambivalence. I look forward to a trajectory in legal anthropology that makes fuller use of developments in media and technology, such as the one we are engaging through this stimulating electronic conversation.

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