Trials Research Paper

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1. Introduction

It is tempting to adopt the definition of trials offered by Lon Fuller, leading modern authority on adjudication, who defines a trial as a process of adjudication which permits disputants ‘an opportunity for the presentation of proofs and reasoned arguments’ in order to give ‘formal and institutional expression to the influence of reasoned argument in human affairs.’ As such, trials ‘assume a burden of rationality not borne by any other form of social ordering’ (Fuller 1981, pp. 93–4). Although this description probably captures cultural assumptions about the contemporary Western trial, it fails to encompass the idea of a trial more generally. It treats human rationality as a given rather than a variable, and it assumes that the primary focus of trials is to resolve disputes, rather than to proclaim truth or to assert authority.

I suggest an alternative: a trial is a process by which proof is authoritatively established. Rationality can be but is not necessarily involved in the process, parties affected may or may not have an opportunity to offer proofs or to make reasoned arguments, and there may or may not be a ‘dispute.’ This more general definition is useful in accounting for a greater variety of processes that are generally understood to be trials, although in widely different settings, including so-called simple or primitive societies, intensely religious societies, and modern Western societies. It also includes processes in which there are no ‘disputes,’ and where disputes are not ‘resolved’ so much as they are processed.

A good place to start in thinking about this more generic definition of trial is Max Weber’s analysis of rational and irrational forms of legal decision-making (Weber 1954, Trubek 1972). For Weber, forms of legal decision-making vary along two dimensions: the nature of their rationality and their degree of formality. By rationality Weber meant the presence or absence of ‘general rules’ that are to be invoked in decision-making. A rational legal system (and decision), according to Weber, involves use of abstract, calculable, and general principles that are invoked when deciding a particular case. In contrast, an ‘irrational’ system does not rely on the application of general rules to particular facts or cases, but is guided by a holistic process that may not be determinable in advance of the particular decision. Similarly, Weber pointed out, legal decision-making varies in its degree of formality. At one end of the continuum is a formal legal system that is autonomous; it has a distinct set of ‘legal’ norms and procedures to guide legal decision-making, and perhaps also a distinct set of offices and officials to make decisions. At the other end of the continuum are not casual, informal norms but rather an array of substantive norms, a mixture of legal, religious, moral, and practical precepts that are intermixed and undifferentiated, and so do not constitute a separate and distinct set of (formal) legal norms. In this way Weber distinguished formal justice from substantive justice. In proceedings dispensing substantive justice, religious, traditional, societal, ethnic, and family norms may blend with distinctively legal norms; here, strictly legal decision-making and decision-makers are not always distinguishable from other realms of social behavior and social actors (see Weber, Max (1864–1920)).

Legal decision-making can vary independently along both dimensions, so Weber developed a set of ideal types that has often been used to characterize distinct forms of legal decision-making across time and across cultures. They are presented in Table 1.

Trials Research Paper

Table 1 generates four identifiable types of ‘trials’: (I) informal irrational (substantive irrationality); (II) informal rational (substantive rationality); (III) formal irrational; and (IV) formal rational. The two extremes on the diagonal (cells I and IV) are familiar to many students of law and the social sciences. Readers of Weber are familiar with the example for cell I—the decision by a khadi (an Islamic clerical judge), who after hearing a case hands down a ruling without explicit reference to any general rules. Weber believed that the outcome is understood in Islamic culture as an expression of divine inspiration transmitted through the khadi, and that the ruling applies only to the particular case in hand. By contrast, cell IV represents the trial in the modern, rule-of-law state. Facts are introduced and testimony is taken according to a clear and precise set of procedures, and this evidence is judged in light of predetermined rules. It is this type of decision-making that Fuller had in mind in his discussion of the forms and limits of adjudication. Turning to Weber’s two other types of decision-making, cell II represents substantive rationality, a form of decision-making that does not entail a distinct and separate legal sphere but melds law with norms in other social realms (or, more precisely, separate realms are not differentiated). Examples include legal decisions based upon cost-benefit analysis or religious precepts. Such decisions are ‘substantive’ not ‘formal,’ since they do not derive legitimacy from a distinct and separate legal sphere. Yet they are ‘rational’ in that they specify clear norms, rules, and procedures. Cell III describes a process that is formal in that it depends upon specialized and distinct legal procedures. But because decisions flow from an ineffable process rather than from general rules, the process is irrational. A familiar example is the establishment of proof through appeals to divine intervention—ordeal by fire, ordeal by water, or other attempts to invoke supernatural signs. Whatever its defects, this last set of procedures for establishing proof had one virtue, if only for true believers: certainty of outcome.

The discussion above suggests that what Fuller had in mind as the essence of the trial is in fact only one of several forms of legal decision-making. However, he is not so far from the mark. Weber’s purpose in developing the typology outlined above was not only to emphasize structural variability in legal decision-making, but also to set the stage for his theory that modernization requires the adoption of formal legal rationality. He saw formal rational adjudication, like bureaucratization, as one of the essential features and defining characteristics of modernity. It is therefore important to understand what is lost by abandoning the other three forms of decision-making in his typology, and what is gained by adoption of the fourth form. According to Weber, modern law undermines competing forms of authority. To the extent that modern law triumphs—and law is notoriously good at triumphing—legal precedent, legal decision-making, and hence the modern trial overshadow tradition, custom, the family, and religion as sources of authority. In this sense it simplifies and rationalizes autonomous legal authority. The modern idea of the rule of law also aspires to precision; it identifies legal entities and separates them from other forms of control. Thus it offers both a sense of freedom and predictability at the same time. In a modern system the ruling at a trial trumps other commitments, other relationships, and other rule systems. That is, the modern trial privileges the state: as officials of the state, modern judges are part of the state-made legal system, and must apply only state-made law. Modern trials undermine other legal systems and challenge the idea of legal pluralism. However, there is a continuing debate about how autonomous modern law is or must be (Nonet and Selznick 1977).

2. The Multiple Functions Of The Trial

Privileging state law and trials, as formal rational forms of decision-making do, does not mean that there are no differences in the nature and function of trials in modern states. Forms and functions of trials vary widely in modern societies. Damaska (1986) argues that states with traditions of strong government rely on trials not only as means to handle disputes between the parties, but also as opportunities to reassert and to implement state policies. In contrast, weak states tend to view trials in conflict-resolution terms. European countries with traditions of strong central government and civil law systems are examples of the former, while Great Britain and the United States, less-centralized states and common law systems, are examples of the latter. Predictably, settlements in lieu of trial are formally discouraged in the former set of countries and encouraged in the latter. This doubtless helps to explain why in England and the United States a much higher proportion of cases commenced in courts are eventually settled short of trial, relative to most countries with civil law systems (Jacob et al. 1996). Political scientist Martin Shapiro, who has explored some of the same themes developed by Damaska (Shapiro 1981), maintains that always and everywhere, courts—including trial courts—in addition to being institutions for conflict resolution, are important agents of social control. He means that in all societies courts are used by the dominant political regime to help promote its agenda. Trials, therefore, always serve two simultaneous and symbiotic functions: they resolve conflicts among the immediate parties, and they provide an opportunity for a type of micromanagement, in the pursuit of regime interests. When trial courts strive to assert independence and do not or will not serve the latter function, Shapiro argues, their jurisdiction will be curtailed. For example in the mid-twentieth century, when English courts failed to rule in favor of labor unions frequently enough at trial, their jurisdiction was curtailed and special labor relations courts, more favorable to labor, were established.

In a more generalized analysis, Durkheim’s ideas of social solidarity rest in part upon his understanding of the social functions served by the legal process, including trials (Durkheim 1964). Although his writings focus on punishment and the criminal process, his overall theory emphasizes the solidifying function of a variety of legal institutions, including the trial. Much of the dramaturgy associated with the process of punishment is also found in the rituals of the trial. Trials, and public reactions to them, represent an important and visible expression and reassertion of Durkheim’s ‘conscience collective.’ Labeling theorists in the social sciences have seized upon this symbolic function, and have explored its relevance for the criminal trial. In a classic article, Garfinkel described the criminal trial as possessing all the necessary ‘conditions of a successful degradation ceremony’ (Garfinkel 1956). Similarly, Stuart Scheingold (1977) and others have argued that trials, and particularly high-profile trials, function to foster a ‘myth of rights,’ which serves to undermine disruptive political struggles. Symbolic victories at trial give the appearance—but not necessarily the reality—of change, and as a consequence they foster political quiescence (Scheingold 1977). Others have explored the more overtly political functions of some trials. Otto Kirchheimer has identified a particular type of trial, the ‘political trial,’ which, he argues, serves the primary purpose of communicating political lessons rather than resolving conflicts or holding people accountable (Kirchheimer 1961). The Nuremberg trials for the war crimes of Nazi officials in the aftermath of World War II, and other more recent war crimes trials, are good examples. So too are Stalin’s ‘show trials’ of the 1930s, and those of some of the American protesters of the Vietnam War in the 1970s.

Clearly one of the basic functions of trials is to resolve conflicts. Yet, some social scientists question even this seemingly obvious notion. Unlike mediation, where the parties participate by mutual consent, a trial is a process in which at least one party is an unwilling participant. Consider, for example, the criminal defendant whose appearance must usually be coerced. Moreover, modern law does not necessarily express the deeply valued norms of any tightly-knit community or even widely held norms. As a consequence, both the institutional framework and the norms applied may be regarded with suspicion, if not hostility, by one or more of the participants at trial (Shapiro 1981). Various scholars of legal pluralism emphasize just how problematic these challenges are, and often criticize governments and other scholars for giving pride of place to the formal legal trial as the preferred institution for dealing with conflicts (Galanter 1974). In light of these and related concerns, it is conceivable that a verdict by a court may not always be an effective way to resolve conflicts, especially in the eyes of the losing party. Consequently, many people who lose at trial continue to press their claims in other forums (Abel 1982, 1983). Others do not even bother to seek redress in courts (Felstiner et al. 1980–1) or seek out formal alternatives to adjudication.

3. Trial Complexity And Its Consequences

One distinctive feature of modern trials is the replacement of reliance on divine intervention with modern empirically based decision-making. Factual evidence subjected to scrutiny has replaced the evidentiary value of supernatural signs. Eyewitness testimony has superseded oath-taking by the accused. And gathering, sifting, and pondering evidence has been transformed from an informal process into a disciplined arrangement governed by detailed procedures and formal rules. Consider that the earliest-known juries convened in criminal cases in Anglo-Saxon England consisted of men from the local community who had firsthand knowledge about the case and/or the character of the accused. By the nineteenth century, a jury was a group legally barred from any firsthand knowledge of the facts of the case before it, and could receive only evidence screened by highly complex rules and introduced according to complicated procedures. In most ordinary cases, the medieval trial was a relatively informal and brief affair handled by the parties involved in the dispute. But the modern trial is dominated by lawyers—highly-trained and highly-paid professional advocates for the parties to the dispute—who must contend with the proliferating subtleties of modern substantive law, and who must practice according to increasingly complex rules of evidence and procedure.

Differences in the structure of the trial process produce a number of important differences in effects. In systems with jury trials, proceedings are likely to rely heavily on oral evidence. But in European and other legal systems that do not have or do not rely so heavily on juries, the trial often proceeds by written submissions to the court. The court confronts a dossier containing statements of facts and conclusions and sworn testimony (depositions), not a series of witnesses telling their stories in open court. Additionally, in systems with juries, the trial once begun is likely to run continuously until each side has rested its case. By contrast, a trial by dossier is likely to be intermittent and extend over a much longer period of time. These differences also affect the pace of true closure to the litigation. Cases in courts with active juries are almost always concluded within a few days of commencement, and verdicts are typically handed down very shortly thereafter. But in systems without juries, with trials by dossier, evidence-gathering is far more protracted, and final judgments are not necessarily issued shortly after submission of the final bit of evidence. Thus, ironically, although the jury-trial system is often criticized as inefficient, it may actually foster expeditious trial proceedings.

The nature and form of different trial systems have other consequences as well. The conventional understanding is that Anglo-American legal systems have developed elaborate rules of evidence and procedure in order to restrict the power of jurors, who are untrained lay decision-makers. Since civil law systems have had no such need, they have simpler rules. Although these claims have been vigorously disputed, there is no doubt that rules of evidence and procedure in civil law systems with no juries or weak juries are far simpler than those in common law systems with predominant juries. The ‘quest for perfect justice’ invoked to justify the complexity of common law trial proceedings may be counterproductive (Pizzi 1999). Trials are swifter, cheaper, and perhaps fairer in many civil law countries than they are in the United States and England. Feeley and Lester (1994) have traced increases in length and complexity of trials in England in the eighteenth and nineteenth centuries, and attribute the changes to the growing complexity of rules of evidence and procedure as well as the greater use of representation by lawyers. Examining the comparative effects of European and American trials in the late twentieth century, Kagan (2001) has shown that the expansion of ‘adversarial legalism’ in the United States dramatically increased the cost and length of trials without offering any corresponding increase in benefits.

This tendency to increase trial complexity and adversariness in the quest for judicial perfection led legal historian John Langbein to liken the modern adversarial criminal trial to Medieval European proceedings (Langbein 1976, 1978). Both systems, he argued, aspired to ‘perfect justice’ but in fact precipitated disastrous results. Impossibly high standards of proof in medieval law led jurists to transform torture into a legal expediency in order to fulfill their need for certainty (which confession could provide). Contemporary jurists have developed a functional equivalent, the coercive practice of plea-bargaining, to facilitate a similar objective. Certainty of outcome in both cases, Langbein argued, becomes a mere legal nicety, since both arrangements depend upon coercion. Both torture and plea bargaining are little more than loopholes to circumvent unrealistically high standards of proof. Simpler proceedings and more realistic expectations, Langbein and many others have maintained, would result in fairer and more workable trials.

Finally, in a very real sense the term ‘trial’ is misleading and is perhaps an outmoded concept. It implies a single coming together of the parties in a forum where facts are presented and issues resolved. Although a great many cases are handled in a single session, most cases involve a series of hearings and/or decisions that may extend over a significant period of time. Consider a putatively ‘simple’ criminal case; a suspect is arrested and taken to court for an arraignment, at which time she is asked to enter a plea and bail is set. If pretrial release is not effected, there may be subsequent bail hearings. There may be separate hearings on such issues as a request for representation by a legal aid attorney, probable cause, a motion to suppress evidence, a motion to dismiss, or separate trials for co-defendants; there may be a hearing to determine guilt, a sentencing hearing, and appeals on any of the issues just mentioned. Each one of these separate proceedings can be considered a trial in that it can result in an adjudicated determination of an issue. Contrast this simple criminal case with complex civil cases, which can involve dozens of such issues and hearings. Under such conditions, it does not make much sense to talk about either a ‘case’ or a ‘trial,’ since contested issues have been authoritatively resolved at any number of different hearings; issues may have moved from trial courts to appellate courts and back several times, and indeed the name of the ‘case’ may have changed (Feeley and Rubin 1998). European legal scholars are more likely to understand the term ‘trial’ in this greatly elaborated sense than are Anglo-Americans, who are more familiar with the idea of concentrated, continuous oral proceedings. Yet, the ambiguity of the word is likely to persist in the context of most modern, complex systems of litigation. In light of this, it may be more useful to use the term ‘dispute processing.’ This term better captures the dynamic, multi-step systematizing of most contemporary judicial proceedings, and it implicitly acknowledges that legal conflicts may at best only be ‘processed,’ rather than ‘resolved,’ at trial (Abel 1982, 1983).


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