DHDI

Christoph Eberhard 30/04/97

“Le Mulla, qui venait d'être nommé magistrat, jugeait sa première affaire. Le plaignant exposa son problème de façon si convaincante que Nasrudin s'exclama:

“Je crois que tu as raison!”

Le greffier le pria de se contenir car le prévenu n'avait pas encore été entendu.

Nasrudin fut si transporté par l'éloquence du prévenu qu'il s'écria, dès que celui-ci eut fini de parler:

“Je crois que tu as raison!”

Le greffier n'en put supporter davantage:

“Votre Honneur, ils ne peuvent avoir raison tous les deux.

- Je crois que tu as raison!” dit Nasrudin.” (Shah, 1989: 67)

This little story provides us with a nice entry into our subject. A case has to be decided. Each claimant tells his own story and the Mulla overwhelmed by the eloquence of each of them approves both of the stories. But the clerk remarks that they cannot both be right - to which again the Mulla agrees. What does this little story tell us, especially about what semiotics can contribute in the establishment of facts in court?

First of all it highlights that trials are about story telling, that in fact their core is story telling, and that it seems that we expect the most convincing story to be “rewarded” with it's acceptance by the one(s) who judge(s). This seems to imply that not all the stories can be accepted but that there has to be, as the clerk notices, a right story and a wrong story. This further seems to tell us that the judge is supposed by listening to the different stories to find the truth of the case, enabling him thus to chose the right from the wrong story, and to decide accordingly. But the story also suggests through the attitude of the Mulla agreeing with both parties as well as with the clerk telling him that he cannot do so, that the truth to be found is not an evident fact but has to be infered by the judge who has to build up his own little story of what happened upon the stories presented to him and then has to decide upon it. There may not be one right and one wrong story but there may be a story giving coherently account of the stories told. Thus the judgement, the telling of the truth of the trial, the establishment of what “actually happened” depends on the construction of a new story based on the conflicting and more or less convincing stories told during the trial. And it may even be that there is no other truth in the whole trial than the “truth of the trial” itself, which shall we remind it, is an imposed and not a found “truth” ? While reading this story we have only been in touch with the story of the Mulla's trial and did not really hear about the story(ies) in the trial.We have thus got aware of the fact that the trial does not limit itself to the story(ies) in the trial but that it itself constitutes a story that makes sense.

We will in the following pages elaborate on the insights gained above applying them to modern trials by submitting the latter to a semiotic analysis which will make us aware of all the possible bias underlying the “truth” or “fact” construction in trials. We will start by a general introductory reflection upon the question of “truth” in the trial and its link to stories and narratives (A). We will then turn to the construction of the story in the trial by looking more closely at it's telling by the counsels and the witnesses (B). Finally we will consider the reaching of the “truth of the trial” through the interpretation of the story in the trial through the glasses of the story of the trial, the “truth finding” relying not only on what has been told during the trial but also on how it has been told and perceived and how it is processed in the “story of the jury room” (C).

(A) Stories, narrative and truth (fact) construction in the trial

In this part we will give a very general introductory account of the contribution of semiotics to the establishments of facts in court. We will start by reflecting upon the notion of “truth finding and/or construction” in the trial thus unveiling it's link to narrative (1) and will then rapidly expose the basics of Greimassian Semiotics in order to have a general frame of reference for the understanding of the rest of the paper (2).

(1) What is supposed to happen in court during a trial ? Facts are sought to be established and legal consequences are then attached to those facts. For example one will try to find out if and under what circumstances somebody has killed somebody else, after what this fact will be legally termed (as for example a murder) and the responsible of the act will be found guilty and will be convicted. At first sight we thus have the impression that a trial is meant to establish what happened, the “truth”, and then to subsumate this “truth” under legal provisions by a legal syllogism. A first approach would be to consider that facts are just facts and that they speak for themselves and that they just have to be established. This approach is underlied by a truth correspondance theory for which things, “truth”, exist “out there” and can be established by observation or rational enquiry. In this view ”proof” is “based on “pure fact”, on the empirical self-evidence (évidence empirique) of the states of affairs which are to be proved.” (LANDOWSKI 1989 : 33-34). But even in this positivistic view facts have to be legally constructed, and cannot just be used raw. Thus the trial turns out less to be about finding some ultimate truth than to shape reality so as to make it “convenient and meaningful in the eyes of the law” (LANDOWSKI 1989 : 34-35). Furthermore for doing so the trial has to rely on proofs provided by witnesses as the actual facts are not accessible to the judge or the jury - there are thus, even in a positivistic view mediators between the facts and their establishment whose influence cannot completely be neglected. But legal semiotics as we will develop further in the next pages invites us to go even further and to make a more fundamental epistemological break with the positivistic tradition. As we noticed proof does not present itself but is presented by different witnesses and thus the truth of the trial consists in the english system in that “which a jury believes, after seeing a witness state matters orally on oath, and be subjected publicly to cross-examination on such statements” (JACKSON 1988 : 7). Therefore both perception and enunciation of perceptions in the form of narratives of the witnesses have to be taken into account. Furthermore the testimony of the witnesses is interpreted and evaluated by the jurors. This evaluation will be principally based on the plausibility of the different stories as perceived by the jurors during the trial. The “truth finding” in the trial thus becomes a common “truth construction” in the trial based on the narratives of the different actors of the trial (JACKSON 1988 : 9-13; 1995: 390-392). Thus we could rather see the verdict as the climax in a process of judicial evaluation than as a truth statement. In the criminal trial this process is, according to Boer, constituted along three levels which are the variation of interlocutors, the performance of speech acts and the intersection of a horizontal axis (chronology of the procedure) and a vertical axis (application of the law onto the criminal fact) and is characterized by “a move to harmonise different narrative interpretations and to transform these narratives into one coherent and acceptable narrative” (BOER 1993 : 293-295).

It seems that semiotics of law invite us to abandon the idea of “truth finding” in the trial by paying more attention to the role of narrative in the trial, and meaby even to shift our analysis of what is going on in the trial from the paradigm of “truth construction” to the one of “coherent narrative construction”. But even though our research point of view, which we shall always keep in mind, and which is a critical external point of view on law, as it is a semiotic point of view on law, suggests us to think in terms of “coherent narrative construction” rather than in terms of “truth construction”, we will nevertheless continue to speak of “truth construction”. The reason is that we will try to take a critical external but though informed point of view of law which Ost and van de Kerchove promote for interdisciplinary research in law (OST, van de KERCHOVE 1987 : 75ss). This point of view demands us not to lose out of sight the internal, legal point of view of the matter. Hence we shall not forget that even though to understand what happens in court the semiotic narrative “glasses” can be useful one should not forget the internal legal point of view where the purpouse of the trial is to reach a decision that has to be legitimated, and only can be (at least in our legal cultures) with reference to “truth” even though meaby (positivists would probably even only concede “meaby partly”) constructed. Before dealing more precisely with the construction of “truth” in the trial let us now quickly present the basics of greimassian semiotics which will give us a framework of understanding.

(2) Greimassian semiotics started from Greimass' attempt to develop Saussure's and Hjelmslev's ideas of semantic structure. The latters' approach was limited to the analysis of how we make sense of sentences. Greimass tried to understand what permits us to make sense out of whole texts. Therefore he looked for “basic structures of signification”, the basic grammar of sense construction which enables human beings to make sense about data about human behaviour presented to them. He distinguished two levels : a level consisting of an actantial model, in which discourse makes sense in terms of underlying patterns of intelligible action and an associative (“paradigmatic”) level of story elements which are used in the story sequence (“syntagm”) (JACKSON 1995 : 141-142). Greimass was committed to the idea that sense construction is a process of interaction between three different levels : the level of manifestation which consists of the actually presented sense data and the particular sense attributed to it, the thematic level which is the stock of social knowledge, organised itself in narrative terms, and which permits to make sense out of the data presented on the former level, and the deep level which are the “basic structures of signification “ and which are claimed to be universal. In the following pages we will primarily focus on the first two levels as they will permit us to concretely work out how ”truth” is constructed as the cristallization of a “coherent narrative in the trial” through the narratives in the trial. We will not dwell so extensively on the “deep level”, as it is to abstract for the framework of this paper and not necessary to demonstrate the pertinence of a semiotic approach to the establishment of facts in court. It is enough for us to know that on this level there are “actants” which are “archetypal” (my word) roles that can be concretely personnalized in stories or real life by one or more “acteurs” according to a narrative syntagm composed of a setting of goals, the achievement (or non-achievement) of those goals and the aknowledgement of the performance (or non-performance) of those goals (JACKSON 1991 : 164). One “acteur” is able to perform different actantial roles at different times. It is the identification of these basic narrative roles (ex: helper, opponent) in presented data and the possible narrative choices steming from them according to their missions and means that permit sense construction (JACKSON 1995 : 146ss). The “thematic level” is a level on which exist collective images which serve as a paradigm for interpreting narratives. One such collective image is for example the “image of the thief”, which is not just the neutral image of somebody who has taken something that does not belong to him, but is a value ladden image shaped by collective fears, fantasms and desires. The collectivity which shares such common images, such common paradigms to interpret reality is called a “semiotic group” (it can for example be a social, cultural or professional group). Jackson calls those paradigms “narrative typification of actions”. Those narrative typifications of actions do not generate ““demonstrable “ judgements as to what is “within” or “outwith” the image. But they are able of generating judgements of relative similarity (JACKSON 1995 : 152-153). Thus our concept of “truth” as something that can be objectively and univocally found is challenged as we are moving from the neutral realm of (positivistic) certainty to the value ladden realm of (narrative) plausibility and probability, where “truth” stems from a comparison between presented narratives and our personal narrative stereotype and not from the adequacy of objective facts with their mere description. The “level of manifestation” is the level on which things are actually presented to us (ex: a text). To understand these utterances it is not sufficient to understand their linguistic structure, but we also need to process the message as a narrative syntagm, which brings us back to the “deep level” with its universal grammar of actants, institutionalisation of the subject, his goals and means, and to the “thematic level” which permit us to make sense out of what is presented to us through our social preunderstanding by comparing (unconsciously) the presented situation to our expected stereotype (cf our example of a thief) (JACKSON 1995 : 154-157). But Jackson argues that even though the processing of the narrative structure of an utterance is necessary it is not sufficient - the meaning of the sentence cannot be reduced to its narrative structure but other elements which will contribute to the sense construction must be taken into account, like how, when, where, by whom are things said ? (JACKSON 1995: 157-158).

We now know enough about the role of narrative in sense construction to be able to analize from a semiotic point of view how the story of the trial is constructed by the telling of stories in the trial.

(B) The story in the trial : it's building up through the telling of stories in the trial

Maley and Fahey notice that a recurrent metaphor recurring in discussions of trial process and the discourse of the courtrom is the metaphor of the trial as a process of story telling (Maley, Fahey 1991 : 3). And Jackson even argues that “the plausibility of facts proved in courts is a function of their narrative coherence and of the narrativisation of the pragmatics of persuasion (through examination, cross-examination, courtroom tactics, etc.); and that the application of law to facts thus turned out to be not a logical process, but one consisting of the comparison of narratives.” (JACKSON 1994 : 97). We will in this part examine closer the first part of Jackson's statement by analysing the counsils' (1) and witnesses' (2) performance in a narrative perspective, before turning to the analysis of the comparison of narratives by the judge and the jury in order to establish the “truth” of the trial through the stories of the trial . Thus this part will deal with the story presented to the judge and jury (the story in the trial) whereas the next part will deal with the story that the judge and jury will make out of this story.

(1) The Counsil's narrative performance can be divided into four phases where he plays a different role : the opening and closing statements, the examination in chief and the cross examination.

A number of lawyers consider the opening statement as one of “the most important phases of the persuasion process and (as) the most significant aspect of any trial”. “While restrained to a role technically nonargumentative, the opening statement is the anticipation and promise of what is to come.” (SNEDAKER 1991 : 132 - italics added by me). It is the opening statement which will familiarize the jury with the general outline of the case and will provide it with a framework for understanding the stories told afterwards. It is a story presenting, systematizing, contrasting and interpreting information about what is to come which will direct the perception and interpretation of all the subsequently told stories by providing a structure to the jury which will enable it to establish consistency between characters, settings, motives and actions and thus to find a common ground of agreement concerning the “truth” of the case . It is thus a story whith a very specific weight as it will set the central action and will focus on the key narratives that will be unfolded further in the “story in the trial” (SNEDAKER 1991 : 134-135). This story can be seen in terms of content (ex : justifications presented to the jury to convince it to convict or acquit) and form (putting the content into meaningful relations and thus give a coherent, plausible and legally relevant (as we have seen above) narrative of the case). It is interesting to note that it is in the opening statement that the storytelling strategy of each trial becomes most evident. As Snedaker notices the opening statement has two main purpouses : persuading the audience and framing the chain of reasons that will be deployed after it in the trial. To achieve these purpouses, to be persuasive, the story cannot only present the facts but has to bring them close to the jury, which is done with the use of emotionnally ladden images and metaphors (ex : the murderer as a beast) and with the identification with the interests, needs and values of the jury (ex: presenting the victim or the accused as a family man, an active community member ...) and even more generally by a careful choice of words and style (ex : the use of “fetus” or “baby” even when referring to the same fact give rise to different sense construction - JACKSON 1995 : 397). Furthermore out of necessity the opening statement has to be kept short and thus must simplify the case by highlighting the issues and by “typifying” the following actors while introducing them (SNEDAKER 1991 : 136-138). These characteristics may help us to understand the huge impact of opening statements - not only do they open the trial but furthermore are they structurally, and in what concerns their content, very close to the deep level and the thematic level (see above) of the members of the jury. They will thus have a far greater “sense making power” on the jurors than all the following stories which will be much more complex and will only be parts of the whole story leaving it to the jury to construct a new story with a new sense out of them, a construction in which reference to the already all encompassing and meaningful story in the opening statement can be felt as very helpful and welcome. Furthermore Snedaker notices that once the audience becomes aligned with a particular view it is very difficult to change it again (SNEDAKER 1991 : 136) which can explain that for the defence it may prove more efficient not to try to challenge the view presented in the opening statement but to propose an alternative story (JACKSON 1995 : 398) - it becomes clear here that the trial is a “battle for credibility through the means of story telling” rather than “an investigation process to unveil some hidden truth”. But the opening statement is just the first of the stories told by the advocates, the last being the closing statement, which seems (contrary to the representation that lawyers have of it), not to have much infuence on the jury who has already made up his mind (JACKSON 1995 : 405). Between those two stories the lawyers will continue to tell stories, though through the mouth of the witnesses in examination and cross-examination. As Jackson says : “The jury is the “audience” in a very real sense. For the whole object of counsel is to present the lawyer-witness interaction in such a way as to create the desired form of sense construction in the minds of the jurors.” (JACKSON 1995 : 394). He will do so in a co-operative way in the examination in chief and in a conflictual way in the cross-examination. Indeed the way of constructing stories in the trial by lawyers and witnesses is heavily dependant on the frame in which this construction is taking place and which is here given by the adverserial character of the process. It is thus through four speech contexts, and thus through four different kinds of narratives, the examination in chief of the witnesses for the prosecution and for the defence and the cross-examination of the witness for the prosecution and for the defence, that two opposite stories are meant to emerge between which the jury has to choose the “true” one (MALEY, FAHEY 1991 : 4-5). Even though the examination in chief may look like a “normal” speech situation where people on a same level address each other trying to exchange information it de facto is not. The questions of the lawyer are not intended to seek for new information as little as the answers of the witness are supposed to provide new informations to the lawyer or to convince him of the witness' point of view. The purpose of the whole interaction is rather to build up together the image of a plausible and coherent story which will convince the jury of it's “truth” (JACKSON 1995 : 412-413). This purpouse becomes even more apparent when one studies the strategies of the lawyers during cross-examination which tend mainly to discredit the witnesses by hindering them to develop coherent narratives. We must keep in mind here that the counsel is the “master of the game”. His relation with the witness is not a relation of equality but a power relation : it is the counsel who directs the verbal exchange by asking the answers to which the witness has to answer without asking any counterquestions and without being able to pause unduly or to close the exchange; it is the counsel too who can cut off answers, determine the form of acceptable answer by the form of the question, can bring together facts from prior testimony to juxtapose them to make a point and control the duration of the encounter (JACKSON 1995 : 413; DREW 1990 : 49). An interesting example to illustrate the importance of the narrative structure for creating an impresssion of truth, and thus showing that the form in which something is said is at least as important as the content of what is actually said for the creation of an impression of truth, is the example of the “three-part descriptions” developed by Drew (DREW 1990 - 51ss). Drew notices that one of the techniques counsel uses in attempting to contest a witness' version of events by portraying these events is the manipulation of “three-part lists” to describe some action, scene or any other element of a testimony (DREW 1990 : 51-52). Research in conversation analysis seems to show that “three-partedness is a “basic structural principle” to which speakers orient as a normative device, which is to say that lists with less than three items may be treated as incomplete” (DREW 1990 : 51-52). An important point that emerges from this finding is that listing three items is a way of expressing a generalization about a property that items in the list have in common (DREW 1990 : 54). This generalizing property of “three part descriptions” is used by counsel for rhetorical purposes when he presents facts monologically but also in his interaction with the witness. He will try to actively reconstruct singular into three-part descriptions or will try to hinder the witness to make his third point. “Thus the struggle over the “content” of the testimony is in part conducted through its form; that is, between a “generalizing”/”approximating” three-part description on the one hand, and a 'delimiting' less-than-three-part description on the other.” (DREW 1990 : 57). More generally it can be said that counsels will use their role of leader of the discussion to manipulate the witness in such a way as to make him for example feel comfortable or uncomfortable, and thus to create different effects on the audience by discrediting or at the contrary crediting the witness (JACKSON 1995 : 414-415). Counsels also deliberately use the role of social sense construction (cf “thematic level”) in the form of stereotypes, narrative typifications etc ... in order to influence the initial perception of the witness by the jury, thus providing already a priori a frame to the jury for evaluating the credibility of the witness before they are even confronted with the witness' speach behaviour (JACKSON 1995 : 416). Thus “expert evidence” may be presented as having a special quality of objectivity. It will often be the quality of “expert” evidence which will be used in order to create the wanted effect more than the actual content, which can be achieved by the counsel by “controlling the “range of information”, “changing meaning”, “overgeneralization” or more generally by constructing or deconstructing the witness as an expert, rather than by objectively evaluating the presented evidence (JACKSON 1995 : 417-421). Another example would be the utilization of prejudices about children and the drawing on “common cultural misinformation” about them as well as the use of specific combination of language devices and questioning styles in order to reenforce these prejudices and thus to destroy the children's credibility and discredit their testimony (ex : children are inclined to tell lies or cannot distinguish fantasy and reality) (BRENNAN 1994 : 51-54).

We have now seen to what a large extent counsels shape the narratives that are told in court and how much influence they have on a truth construction which seems as much if not even more linked to the “narrativisation abilities” of the advocates than to “what actually happened”. But let us not forget the witnesses who are the ones who are supposed to be the ones who “know what actually happened”.

(2) Usually it is taken for granted that the meaning of a word is that to which it refers in the outside world, that there is a correspondance between what is expressed by language and the “objective” outside world. But things seem not to be so simple. Even our perception of the outside world, before even being put into words, is not a merely passive process but an active construction. The light impulses that our eyes receive do not contain any inherent sense - the sense is constructed through the preconditioning of our brain concerning general patterns as for example our expectations as to normal spatial relationship (how things appear in space) or more specific ones which will condition what of the visually present data we will select to make sense out of it. These perceptions will then in a court have to be translated into linguistic utterances. Thus a semiotic analysis may prove useful to understand this process by breaking out of the mere discussion about the accuracy of the testimony compared to the “real facts”. Three factors seem relevant to judge the reliability of a testimony : features of the stimulus situation, characteristics of the eyewitness, and factors at the time of retrieval. Concerning the perception of the stimulus situation the most important thing for us is to keep in mind that “perception does not produce a record but an interpretation” which is affected by “cultural expectations or stereotypes, expectations from past experience, personal prejudices, and temporary expectations.”, social expectations or stereotypes (thematic level) being particularly likely to have an adverse effect upon perception and memory when the event observed is complex and of short duration (JACKSON 1995 : 362). The resulting bias in perception can either consist in the “wrongful” encoding of what has been perceived or even in the construction of a perception that actually did not exist (see something that is not there) (JACKSON 1995 : 363) for example to fill in gaps of perception authorizing to construct sense (ex : I hear a crash and then see to cars which appearently collided and construct to have actually seen the collision). An example that should make us very critical towards the “truth of what actually happened” and showing the importance of social prejudice in truth construction is Duncan's experiment in which he showed white American college students a videotaped interaction of an increasingly violent argument in which, finally, one of the participants pushed the other. In different versions the race of the protagonist and of the victim were varied. The students were asked to describe what they had seen in categories like “playing around” or “violent behaviour”. When the protagonist was black and irrespectively of the race of the victim over 70 % of the students termed the incident as “violent behaviour” whereas only 13% did so when the protagonist was white. The explanation of the situation too was different according to the race of the actors (JACKSON 1995 : 364). We see here how much sensory data is interpreted through the “thematic level”. But for a situation there may be different narrative schemes to be used for interpretation. The choice of one of them may be conditioned by the actual affective state of the perceiver, by the characteristics of the eyewitness at the time of the perception. As we have already mentioned perception is selective. Witnesses may notice things that are meaningful and interesting for them at the time that they happen but may not be aware of other things. Witnesses may also interpret sensory data according to their mood which influences the choice of “tacit social evaluation” which is used in making sense of the situation. The salience of things to the the perceiver and the mood in which he perceives them are not only relevant at the time of perception but will also be shaping the memory of the event (JACKSON 1995 : 365-366, 368). We come thus to the factors at the time of retrieval which are linked to memory and its recovery. Things are not just stored in the brain like pictures are stored in a film and which could just fade out with time . Thus there is not only the problem of the failure of retention, recall and enunciation of what had been originally encoded that has to be taken into account (JACKSON 1995: 367-368). Original perceptions can later be altered or reinterpreted which stresses the role post-event information can play in reconstructing the memory and makes clear the role lawyers play in the reconstruction of memory by the way in which they ask their questions (JACKSON 1995 : 370).

We have now a little overlook of the factors that influence the story telling in the trial. This story telling makes up a new story, the story of the trial to which there is another audience, other witnesses, the judge and the jury who will have to make sense out of it and construct the “truth of the trial” out of it.

(C) The truth of the trial : its building up through the story(ies) of the trial

In this last part we will deal with two other actors of the trial, who are in fact witnesses of the trial : the judge (1) and the jury (2).

(1) The judge although engaging in a variety of speech behaviours during the trial and thus not being a “pure” witness of the trial nevertheless is a witness, even though a special one, in the sense that he is the representation of an “objective, neutral adjudicatory body” (JACKSON 1995 : 424). His principal speech act in an English criminal trial is the summig up which is done after the conclusions of the case presented by the prosecution and the defence and before the jury deliberates. In his summing up he has to remind the legally relevent elements of the case, and tell the jury what the law to be applied is (JACKSON 1995 : 426-428). As we have seen above, the story that the judge will tell will be dependant on the way he perceived the story of the trial. Even though he is supposed to make a neutral statement and only “communicate” some facts, he may signify other things to the member of the jury (like his personal view of the case), which will be able to influence them quite a lot in their decision as they see him as a competent authority figure who over the top is presented as being neutral and objective, qualities inherently linked to his status (JACKSON 1995 : 427 ss ). It is only after this last story that the jury deliberates to find the “truth” of the trial.

(2) As we have already noted the jurors are witnesses of the whole trial which makes everything we have said about witnesses above relevant for them, for example concerning the memory of all the evidence and of the legal instructions given by the judge, although the situation is a little different here as in the jury we have to do with a group memory (recalling and reconstructing) and not with individual memory (JACKSON 1995 : 442-445). But furthermore the jurors are not only “passive” witnesses. The “truth” of the case is unraveled not only through the “story in the trial” as they have perceived it through the “story of the trial” but also through the treatment of these stories through the “story of the jury room” (JACKSON 1995 : 442). Before having a closer look to what actually happens in the jury room let us remind that the jurors do not wait until the moment of deliberation to make up their mind. “Rather, there are mechanisms of selective attention, forgetting, influential embellishment and reorganisation as the data is presented” along the trial, the narrative coherence of the telling of their story by the different witnesses being a significat factor of their comprehensibility and thus relevance for the jurors (JACKSON 1995 : 446). Let us also note out of interest that concerning the “story of the trial”, the defendant is not perceived as a participant to it - he is much more treated like an object than as a subject, confined to the dock and only speaking through others (JACKSON 1995 : 448). Could that be seen as a sign that the “mise en scène” in court trying to create the feeling of undertaking an objective neutral search for truth to which abstract legal consequences are linked rather than morally judging a subject and taking a decision that will heavily affect his life and that of those close to him has been achieved ?

Concerning what happens in the jury room research done on small group decision-making may here be relevant. It is interesting to note that in small groups discussions leaders tend to emerge who will direct the discussion. It also has to be taken into consideration that isolated individuals tend to conform to the opinion of the majority. More generally it can be said that discussion is not a neutral exchange of information but a play in which everyone will try to play the role that has cristallized out of his own personality and of his relationship with the group. Thus for example the fact for one juror to commit himself very quickly to one view on the guilt of the accused will result in his tendency to defend this point of view in order to maintain his personal prestige and credibility. Such findings can be relevant to help organizing the deliberation style in such a way to permit the reaching of a decision, and of a decision that is more based on a cooperative discussion of the presented evidence than on an adverserial fight over it, which seems to be able to be more objective. It may thus be useful to organize the deliberation in an “evidence-driven” rather than in a “verdict-driven” way (JACKSON 1995 : 452ss).

(D) Conclusion

We have seen in the pages above all which a semiotic analysis can contribute in understanding the process of “truth establishment/finding/construction” in court. It has made us especially aware of the fact that we should be very cautious when speaking of “truth to be found” during the trial, by highlightening the complex processes of sense construction which lead through the narrativisation of pragmatics to the construction of the “truth of the trial”. Legal semiotics thus invite us to take a critical stand towards positivistic truth correspondance theories of meaning. They invite us to dig a little further below the surface of “truth finding/construction” thus permitting us to unveil a little more comprehensively the underlying mechanisms of (narrative) sense construction. Nevertheless we should not forget our choice to take an informed critical external point of view on the issue of the establishment of “facts” in the court. This will prevent us to fall into an extremist view of semiotics which would lead us to consider that “everything is constructed, that there actually is nothing like “facts” that could be established through a trial in court”. Something actually happened (or did not happen) and the attempt to try to establish this leads to the “construction of a truth”, which will influence a legal decision, which on its turn bears heavy consequences for its addressee. This should not be forgotten and should lead us to try to use legal semiotics in order to improve the “truth construction process” in the trial in such a way that the constructed truth may have a maximum of probability to correspond to the “actual truth”. Legal semiotics can thus play a role in reshaping court procedures to make them more efficacious in their aim to “establish the truth”. It could do so alone, or even better in collaboration with other disciplines trying to lead legal systems to “better solutions” through their critical questioning of them, like for instance sociology of law or comparative law. Legal semiotics could for example, in the anglosaxon perspective, contribute to the debate about the complementation of the traditional adversiaral procedure by a more inquisitorial one, as is used on the continent (MARKESINIS 1994 : 12-13). Legal Semiotics may thus provide a fruitful dialogue partner for Law and other critical disciplines on Law in order to improve the actual legal systems, and in order to improve more specifically in our case, the procedures aiming at the establishment of facts in court.

BOER Monica Den, 1993, “Do Trials Have Real Winners? On the harmonisation of interpretations and the construction of pseudo-consensus in legal discourse”, International Journal for the Semiotics of Law, Vol. VI, n° 18, p 293-304

BRENNAN Mark, 1994, “The Battle for Credibility - Themes in the Cross Examination of Child Victim Witnesses”, International Journal for the Semiotics of Law, Vol. VII, n° 19, p 51-73

DREW Paul,1990, “Strategies in the Contest Between Lawyer and Witness in Cross-Examination”, LEVI Judith N., WALKER Anne Graffam (eds.), Language in the Judicial Process, New York - London, Plenum Press, Law, Society, and Policy Series, 373 p (39-64)

JACKSON Bernard S., 1988, Law, Fact and Narrative Coherence, Deborah Charles Publications, Legal Semiotics Monographs Series, 214 p

JACKSON Bernard S., 1991, “Narrative Models in Legal Proof”, PAPKE David Ray (ed.), Narrative and the Legal Discourse - A Reader in Storytelling and the Law, U.K., Deborah Charles Publications, Legal Semiotics Monographs Series, 373 p (158-178)

JACKSON Bernard S., 1994, “Towards an Interdisciplinary Model of Legal Communication”, JACKSON Bernard S. (ed.), Legal Semiotics and the Sociology of Law, Oñati, IISL, Oñati Proceedings Series, (97-110)

JACKSON Bernard S., 1995, Making Sense in Law, U.K., Deborah Charles Publications, Legal Semiotics Monographs Series, 516 p

LANDOWSKI Eric, 1989, “Truth and Veridiction in Law”, International Journal for the Semiotics of Law, Vol.II, n° 4, p 29-47

MALEY Yon, FAHEY Rhonda, 1991, “Presenting the Evidence: Constructions of Reality in Court”, International Journal for the Semiotics of Law, Vol. IV, n° 10, p 3-17

MARKESINIS B.S., “Learning from Europe and Learning in Europe”, MARKESINIS B.S. (ed.), The Gradual Convergence - Foreign Ideas, Foreign Influences, and English Law on the Eve of the 21st Century, Oxford, Clarendon Press, p 1-32

NELKEN David, 1994, “Rules and Stories: Comment on Jackson”, JACKSON Bernard S. (ed.), Legal Semiotics and the Sociology of Law, Oñati, IISL, Oñati Proceedings Series, (111-118)

O'BARR William M., CONLEY John M., 1991, “Litigant Satisfaction Versus Legal Adequacy in Small Claims Court Narratives”, PAPKE David Ray (ed.), Narrative and the Legal Discourse - A Reader in Storytelling and the Law, U.K., Deborah Charles Publications, Legal Semiotics Monographs Series, 373 p (65-89)

OST François, van de KERCHOVE Michel, 1987, Jalons pour une théorie critique du droit, Bruxelles, Publications des Facultés universitaires Saint-Louis, Col. Travaux et Recherches, 602 p

SHAH Idries, 1989, Les plaisanteries de l'incroyable Mulla Nasrudin, Alençon (Orne), Le Courrier du Livre, 2^e éd., 220 p

SHAFFER Thomas L., ELKINS James R., 1991, “Solving Problems and Telling Stories”, PAPKE David Ray (ed.), Narrative and the Legal Discourse - A Reader in Storytelling and the Law, U.K., Deborah Charles Publications, Legal Semiotics Monographs Series, 373 p (90-101)

SNEDAKER Kathryn Holmes, 1991, “ Storytelling in Opening Statements: Framing the Argumentation of the Trial”, PAPKE David Ray (ed.), Narrative and the Legal Discourse - A Reader in Storytelling and the Law, U.K., Deborah Charles Publications, Legal Semiotics Monographs Series, 373 p (132-157)