Skip to main content
PRINT EDITION

Talking Back in Court

By June 1, 2021July 22nd, 2022No Comments

Abstract: People charged with crimes often speak directly to the judge presiding over their case. Yet, what can be seen in courtrooms across the U.S. is that defendants rarely “talk back” in court, meaning that they rarely challenge authority’s view of the law, the crime, the defendant, the court’s procedure, or the fairness of the proposed sentence.

With few exceptions, legal scholars have treated the occasions when defendants speak directly to the court as a problem to be solved by appointing more lawyers and better lawyers. While effective representation is crucial, this Article starts from the premise that defendants have important things to say that currently go unsaid in court. In individual cases, talking back could result in fairer outcomes. On a systemic level, talking back could bring much-needed realism to the criminal legal system’s assumptions about crime and punishment that produce injustice.

This Article analyzes three types of power that prevent defendants from talking back in court: sovereign, disciplinary, and social-emotional power. While sovereign power silences defendants through fear, disciplinary power silences defendants by imposing a system of order within which talking back seems disorderly. Finally, social-emotional power silences defendants by imposing an emotional regime in which self-advocacy is both a breach of decorum and an affront to the court’s perception of itself as a source of orderliness and justice. The dynamics of social-emotional power are particularly critical to evaluating court reform efforts focused on improving courtroom culture. Paradoxically, the more solicitous the judge, the less the defendant may feel comfortable raising concerns that challenge the court’s narrative of justice.

Download the Full Article

Other Articles from WLR Print Edition

June 1, 2023 in PRINT EDITION

In the Room Where It Happens: How Federal Appropriations Law Can Enforce Tribal Consultation Policies and Protect Native Subsistence Rights in Alaska

Abstract: Federal-tribal consultation is one of the only mechanisms available to American Indian and Alaska Native communities to provide input on federal management decisions impacting their subsistence lands and resources.…
Read More
June 1, 2023 in PRINT EDITION

Creating and Maintaining Consistent Standards Regarding the Role of Parental Substance Abuse at Shelter Care Hearings in Washington State

Abstract: When Child Protective Services (CPS) removes children from their home in Washington State, the State must hold a shelter care hearing within seventy-two hours to determine where the children…
Read More
June 1, 2023 in PRINT EDITION

Per Curiam Signals in the Supreme Court’s Shadow Docket

Abstract: Lower courts and litigants depend a great deal on the Supreme Court to articulate and communicate signals regarding how to interpret existing doctrine. Signals are at their strongest and…
Read More