The Trial in American Life (review)

In this highly readable study, Robert Ferguson offers critical analysis of the rhetoric of criminal trials in American culture from the earliest days of the republic, starting with the trial of Aaron Burr, through the late 20th century, including the 1990s trials of O. J. Simpson, Louise Woodward, and Joel Steinberg. Ferguson traces the roots of the arguments made in court to the historical moment in which the trials are held, and also observes the impact of the trials on contemporary American popular and literary culture. His aim is to draw attention to three dimensions of criminal trials that attract widespread attention through journalism and political debate: (1) a spread of conflict, (2) surprise or a turn of events, and (3) iconography.

Ferguson's analysis is focused on six landmark trials, each of which illustrates his three dimensions vividly. For example, he first discusses the 1926 "Scopes Monkey Trial," in which all three dimensions seemed to be at work simultaneously. The conflict over teaching evolution, which continues to this day, is seen to have spread widely enough across the United States that a trial in Dayton, Tennessee, became the object of national attention. Prominent journalists such as H. L. Mencken attended and offered commentary on the trial, which transcended the plain matter of whether John Scopes violated state law by teaching evolution in his elementary school classroom, which he clearly did. Instead, the trial came to represent the conflicts between modernity and tradition, religion and science, and the regional cultures of the southeast and northeast. The element of surprise occurs in several arenas, including the cross-examination of the prosecuting attorney, William Jennings Bryan (brought in by the state of Tennessee to argue most effectively its case against evolution), by Scopes's defense attorney Clarence Darrow. This clash has become iconic; it became, for instance, the key moment in the play Inherit the Wind, which offered 1950s America a retelling of the trial sympathetic to Scopes.

Ferguson reminds readers (or, for this reader, informs them) that shortly after the Scopes verdict was rendered, the judge ordered the confrontation between Bryan and Darrow strickened from the official trial transcript. It thus ceased to exist as a legal matter and lingers only as an artifact of popular culture (having been published in the contemporary press and then adapted in Inherit the Wind). Ferguson frequently provides this sort of detail, in which the legal record and public memory are at odds, to emphasize the way that Americans find their memories of these trials influenced by factors that are irrelevant or of little relevance in the legal system. As a result, Ferguson argues that Americans' everyday understanding of their own legal system is often confused. He notes that in this situation the public might be tempted to leave the legal system in the hands of officers of the court, but that this is perilous in a democracy.

Ferguson is somewhat persuasive in his defense of his focus on the most famous trials of their day, since it is these trials that are most likely to affect "American life" in broad terms. But he also recognizes that one way that attention to high-profile trials distorts our understanding of the criminal justice system is by distracting us from the most common outcome of criminal proceedings, the plea bargain. High-profile cases can also mislead the public about the amount of attention criminal trials in general receive in the media; most receive none at all. The reader is thus left wondering what Ferguson means by the term "American life" in his title. If the actual commonplaces of criminal justice in America are unexamined in favor of exceptional trials, we may come away from Ferguson's book with as narrow a conception of "American life" as his conception of "the trial" offers regarding criminal justice. To some extent, studying the trial in American life by studying extraordinary cases is like studying food in American life by focusing on gourmet meals.

In fact, it appears...