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, 2022 in PRINT EDITION

The Chorus Doctrine: Promoting Sub-National Diplomacy in Regional Growth Management

Abstract: Sub-national diplomacy, also known as paradiplomacy, occurs when sub-national actors (think cities or states) engage in international relations, either with other sub-national actors or nation-states. Though typically the province…
Read More
June 1, 2022 in PRINT EDITION

Copyright Protection for Works in the Language of Life

Abstract: In 2001, the DNA Copyright Institute sought to capitalize on the fear of human cloning by offering celebrities the opportunity to use copyright to secure exclusive rights in their…
Read More
June 1, 2022 in PRINT EDITION

Victims as Instruments

Abstract: Crime victims are often instrumentalized within the criminal legal process in furtherance of state prosecutorial interests. This is a particularly salient issue concerning victims of gender-based violence (GBV) because…
Read More