I. [Re-]Constructing a Homicide
Tony Kreskin was driving down a country road one day when he spotted a figure staggering along the roadside. The person looked hurt, so Kreskin stopped his car to investigate. When he saw that the person was indeed injured, Kreskin helped him into the car. The other’s name, Kreskin soon learned, was Nicholas Faccio. Faccio told Kreskin he had been robbed and beaten by two unknown assailants.
After driving together for a while, Kreskin and Faccio struck up a friendship of sorts. Faccio said that he was on his way to play cards with an acquaintance of his, a wealthy man by the name of James Smite. When Faccio invited Kreskin to come along, Kreskin said okay.
While at Smite’s house, following several hours of high stakes poker, Smite and Faccio had an argument. Despite this, Faccio and Kreskin spent the night at Smite’s as planned. The next morning Kreskin awakened to find Faccio sprawled on the front lawn of the house. He’d been badly beaten and seemed close to death. Learning of the situation, Smite arranged to have Faccio taken to a local hospital. Kreskin was convinced that Smite had ordered one of his employees, a man by the name of Jake Crosby, to undertake the beating in order to teach Faccio a lesson. Kreskin subsequently arranged to have Crosby as a passenger in Kreskin’s car. Kreskin then smashed up the car and Crosby was killed.
The legal question that this incident immediately raised is this: What are we to make of Jake Crosby’s death? Was it simply an accident? Or is Kreskin a criminal, the perpetrator of a homicide?
Clearly, more facts are needed before a judgment can be made. Fortunately, more details are at hand.
Installment One
The incident described here is based on a real case, although the names have been changed. It was tried in state criminal court and Kreskin was ultimately convicted of manslaughter. Through witnesses and various exhibits at trial, the prosecutor established that around the time the incident took place, the defendant, Kreskin, was a middle-aged, unemployed drifter. After inheriting some money following his father’s death, he’d been aimlessly driving around from one place to another.
Nicholas Faccio, the man Kreskin spotted on the roadside, was a young professional card player. Apparently he had been playing a high stakes game at the time he claimed to have been robbed, beaten, and left on the roadside where Kreskin found him. It was never made clear exactly who had attacked Faccio, or why.
James Smite was shown to have been a wealthy businessman. He claimed to have started his business ventures with money that he won in a lottery. Smite, like Faccio, liked to play cards. The two had played together before in Atlantic City and it was there that they arranged to play again at Smite’s home.
On direct examination in court, Smite testified that in the course of their playing together, he had become convinced that Faccio and Kreskin were card sharks and that they had cheated him out of a significant amount of money. They argued over this at Smite’s house the day before Faccio was beaten. While he claimed no responsibility for those injuries and could not explain how or why the beating of Faccio had occurred, Smite conceded that he was angry at Faccio and “was not unduly put out” by the fate Faccio had suffered. In his trial testimony Smite said, “Hey look, this guy’s the type that makes enemies, know what I mean?”
While on the witness stand, Tony Kreskin, the defendant, expressed his belief that Smite had ordered Crosby to give Faccio a beating for revenge. Smite denied this. Concerning Crosby’s death, Kreskin testified, “It was one of those things. It was an accident. What else can I say?”
In her summation, the prosecutor argued to the jury in part as follows:
Look, we all know what these characters Kreskin and Faccio were up to. They’re sharks. They follow their noses, they live day-to-day. They play by their own rules. And the rules of the game are clear: “You get my guy, I get yours.” And, ladies and gentlemen, that’s precisely what Kreskin did. That’s how he played it. Crosby crossed him, so he evened the score.
Apparently, the jury believed her; they convicted Kreskin of manslaughter. As it turned out, however, the jury may not have had all the facts before them.
Installment Two
Shortly after the trial, a young film-maker by the name of Earl Orris happened to read about the Kreskin case in the newspapers. It piqued his interest, so he decided to learn more about the matter. Through his own investigative efforts, Orris came up with some interesting facts, some of which had not come out at the trial. For instance, there was the nurse who cared for Crosby at the hospital before Crosby died. In the course of an interview that Orris conducted and filmed, the nurse said that Crosby kept saying the same thing, over and over, before he died: “If only I’d kept the music on, it’d be all right.”
When Orris went to visit Kreskin in prison he asked Kreskin about what the nurse had said. In his own filmed interview, Kreskin gave this response:
Oh yeah, right. Just before the accident see I had the car stereo on, you know? I always drive to music. And at one point, Crosby just reached out and snapped the thing off. I mean, I couldn’t believe it. So I turned to him, I was pissed, and I said, “Why’d you do that for?” I was staring at him, kinda hard like. Then all of a sudden I see, there was this truck . . . I spotted this truck real close by. And I guess . . . well, I didn’t see it soon enough, so, anyway, you know, I had to jerk the car away fast. And there wasn’t time, so, I just lost it, lost control. . . . So, yeah. Sure. If Crosby had just left the goddamn music on everything might’ve been all right.
When asked why he did not tell this to the prosecutor, Kreskin said:
Why didn’t I bring it up? I’ll tell you why. How could it’ve helped? By showing I was really pissed at Crosby in the car? Sure. Great. Don’t you see that’d only help the jury believe I wanted to get him? Nah, it couldn’t but’ve hurt me anyway. The DA would’ve seen to that, that’s for sure.
The release of Orris’s film, which included these and other interview fragments, created a stir. Faced with growing public pressure, and given the new evidence that the film interviews seemed to provide, officials eventually felt compelled to reopen Kreskin’s case. A new judge reviewed the matter and after finding serious prosecutorial errors decided to throw out Kreskin’s conviction. A second trial was then conducted. This time Kreskin wound up with an acquittal.
After the verdict everyone said that the film had been a key factor in getting Kreskin off. When the media reported how the defense had played Orris’s film for the second jury, the notoriety sparked even more interest in the film and the person who made it. A number of interviews with Earl Orris followed. And in the course of one of those interviews some information came to light that the second jury had not known.
Installment Three
According to the film-maker’s public account, he’d never intended to make a documentary film about the Kreskin case. Orris’s interest was more “metaphysical,” he said, than historical. The driving idea, as Orris put it in one interview, had to do with how “things seem to just happen in life, without reasons.” The film, he said, was meant to be about fate, about how people’s lives are manipulated by events beyond their control. It was meant to portray how people “deny their helplessness by making up stories about reality after the fact.” According to Orris, “stories provide rationales, explanations. Like the rationale the film gives. It’s a device to make sense of things. It gives people a sense of control. But it’s all self-deception. At any rate, that’s what I wanted the film to convey.”
As it turned out, the people Orris interviewed for the film had been told about his interest in fate and coincidence. And the interview fragments that the film used were in fact selected because they dealt with Orris’s theme. One film critic, who was particularly interested in the increasingly popular docudrama genre, personally approached some of the people who appeared in the film, including the nurse who cared for Crosby before he died. According to the critic, the nurse said that it was Earl Orris who had raised the possibility that Crosby might have done something to cause Kreskin to lose control of the car. The article that the film critic wrote includes this alleged quote by the nurse:
We were talking about chance, and like how someone could have his whole life changed by fate or something. I said, “Yeah, there are things you never know.” Maybe Kreskin was out to even the score. Or maybe it was just one of those things, fortuitous like. Crosby happens to get killed and there’s Kreskin a victim of circumstance, framed for something he had no control over. I can imagine that. Like if Kreskin was suddenly distracted. Crosby reaches out and snaps off the radio. Just enough time is lost to break Kreskin’s concentration, and Kreskin cracks the car up. Then in the hospital, there’s Crosby repeating the same thing, his dying words: “If only I’d kept the music on, it’d be all right.”
If what this interview suggests is right, perhaps those who viewed the film were misled. Perhaps the first jury had it right after all. But the difficulties do not stop there.
Installment Four
Here begins the explanatory meta-text. It is a parasitic text, taking its substance from the installments that precede it. In return, it converts them, through its own explanatory system, into discrete forms of understanding.
One part of the meta-text’s explanatory system consists of categories of narrative analysis. For example, consider the schema or script. These are the mental blueprints that we carry around in our head for quick assessments of what we may or should be seeing or feeling in a given situation. Such blueprints are simplified models of experiences we have had before. They represent a kind of shorthand that transcribes our stored knowledge of the world, describing kinds of situations, problems, and personalities. These models allow us to economize on mental energy: we need not interpret things afresh when there are pre-existing categories that cover the experience or condition in question.59
Consider, for example, the schema that applies to the following situation: John went to a party. The next morning he woke up with a headache. Now it is common knowledge that people drink too much at parties and wake up the next day feeling hungover. The situation described leaves out the explanation. But we have no trouble supplying it. There is a schema in our head that quickly comes to mind to provide that explanation.60 The point is that the explanation that we come up with goes beyond the information given. We fill in the gap. It is like solving a riddle. For example, what activity is being described in the following passage:
First you arrange things into different groups. Of course, one pile may be sufficient depending on how much there is to do. If you have to go somewhere else due to lack of facilities that is the next step, otherwise you are pretty well set. . . . After the procedure is completed, one arranges the materials into different groups again. Then they can be put into their appropriate places. Eventually they will be used once more and the whole cycle will then have to be repeated.61
Doing the laundry, of course. But it is the application of the appropriate schema that allows this otherwise gibberish-filled paragraph to make sense.
So far, the first part of this installment’s explanatory system has dealt with mental schemata and scripts. The second part addresses how solving the riddle of a situation’s or a text’s meaning requires that we go beyond the information that the situation or text offers. In the matter of narrative, one might say that there is a surface (“manifest”) story and an underlying (“latent”) story. The surface story may tell us about a particular person or event. Beneath that description, however, lies another tale. The underlying tale is the one that we fill in by bringing meaning schemata up to the surface. As a result, the surface tale turns into something more complex, perhaps a symbol of something else. That is why we can say something like, “He’s been drinking and dressing that way since she left him for his friend Carl,” and understand by it a recognizable emotional state: despondency, or something like it.
This talk about the latent story beneath the surface tale evokes talk about an old rhetorical device: the enthymeme. Aristotle spoke about the enthymeme as a bit of incomplete reasoning.62 The argument being offered makes sense only when the audience fills in what is missing from it. Having induced the audience to participate in this way, the arguer has brought them closer to his side. For they now find themselves actively supplying, out of their own world knowledge, the very thing that makes the argument make sense. And since the premise comes from them, not the arguer, shouldn’t they believe it to be so?63
Now let’s apply this installment’s explanatory system to the stories from which it takes its substance. Consider Installment One. How does one make sense of a situation involving professional card players who get into a fight over a high stakes poker game with a wealthy businessman who claims to have built up his wealth from the lottery? By filling in the gaps, of course. And the surface story readily complies by conjuring up a latent schema, such as: Everyone knows these are no ordinary card players. At which point a typical scenario unfurls: card sharks, the rackets, shady business deals, a life of scams and violence. It is a familiar story, which suggests that the prosecutor got it right. These are people who play by their own rules, and in their game it’s “you get my guy, I get yours.” Kreskin’s conviction makes sense.
By a similar process of filling in the gaps, Installment Two also makes sense. What happens when you put together the following surface story elements: a prosecutor who couldn’t care less about facts (when what she’s after is the conviction), a system of justice that is capable of going astray, and a victim of circumstances—someone who happens to be at the wrong place at the wrong time. Someone who also happens to be an outsider whom many people would be only too happy to condemn at the first opportunity. From this perspective what the film shows makes sense, for a suitable interpretive schema is now at hand: Kreskin became a scapegoat. He was convicted for who he was, not for something that he had done.
There is a meaning-making schema for Installment Three as well: the docudrama. Everyone these days knows that TV and film people are willing to play fast and loose with the facts. Think of Oliver Stone’s interspersing of real and simulated “documentary” JFK,64 or NBC’s use of incendiary devices to rig a truck explosion on its “newsmagazine” show, Dateline NBC,65 or the profusion of television crime shows with their reenactments or live recordings (to the extent one can still tell the difference) of everyday police activities.66 Considering the mass media’s apparent willingness to blend reality and simulation, it comes as no surprise that Orris’s film manipulated people into believing something that probably was not true. Indeed, once we see that it is the docudrama schema that explains Orris’s film, a clear conclusion follows: Orris duped people with that nurse’s dying words scenario and his simulated nothing-but-fate tale. And here perhaps another schema may also come to mind: postmodernism. For isn’t this what postmodernists do? They play with the thin line that separates fiction and truth, fantasy and reality, myth and law.
So much then for Installment Three, but what about the meta-text itself, Installment Four. Is there a schema for this too? Would proposing a schema for a system of schemata be going too far? Yes, and no.
The answer may be no, if the schema to be applied tracks what I previously referred to as soft-core postmodernism. Most of us can accept being told that there are schemata or other categories of meaning making that we carry in our heads and commonly use in a variety of everyday contexts in order to make sense of events and people around us.67 True, this way of understanding human understanding suggests that meaning is being actively constructed, that it is not just out there waiting to be discovered. But this is an acceptable view in the sense that uncovering the various meaning schemata that typically assist us in our interpretation of events and texts is by no means synonymous with the erosion of belief. For example, to talk about the mythic subtext of films like Star Wars,68 or Red River,69 or of a text like Shakespeare’s The Tempest,70 or even of a defense attorney’s closing argument, need hardly impair our continued enjoyment of the effect that the story has upon us. We are still moved.
So in this respect, no: finding a schema for a system of meaning schemata, what I’ve called here soft-core postmodernism, probably would not be going too far. Knowledge about the different ways in which meaning can be and is being constructed is something we can live with. Specific beliefs may be affected by such knowledge, but belief itself is not at issue. At the same time, however, there is another schema that one might apply to Installment Four, and by extension to all the installments that I have been discussing, that would go too far. It is a schema that a number of contemporary scholars, including scholars of law, have found attractive.71 I call it the schema of hard- coreless postmodernism. Unlike the soft-core kind, this brand of postmodernism derides belief itself. According to this schema, it is schemata all the way down: there is no substance to feed on, only form.
Consider in this regard Jean Baudrillard’s vision of the current Western cultural scene: “Communication is too slow. . . . In the to-and-fro of communication, the instantaneity of looking, light and seduction is already lost.”72 In this view, our culture appears to be rapidly slipping from communication with content, into simulation, what Baudrillard calls “the ecstasy of the real.”73 According to Baudrillard, this state of ecstasy is a state of empty form.74 Here images are stripped of meaning. Their naked force is akin to the force of seduction, or pornography. This is hard-coreless postmodernism: a condition in which meanings flatten out, and impersonal forces, like coincidence and fate, displace human intentionality.75 It is a condition in which we may find millions of contemporary tele-viewers as they zap around the dial, prospecting for images, making shows out of chance associations76—or as they let MTV do the surface image-surfing for them amid a profusion of quick-cuts, multiple montage, slow dissolves, animation, computer graphics, magnified close-ups, wild angles, and product sell mixed indiscernibly with world events, rock stars, politicians, starving children, catastrophes of war, Nike, Adidas, Coke, Pepsi, Porsche.77
In short, according to the hard-coreless view, overcommunication, the massive influx and surplusage of images, has become the mass media’s hallmark. The result is a popular cultural reality in which there are “more signs than referrents, more images than meanings that can be attached to them.”78 In this hard-coreless reality, it grows increasingly difficult to tell what is real after all: the event, the ‘infotainment’ news of it, the full length feature, or the almost instant television docudrama or mini-series version?79
But what would such a hard-coreless postmodern schema look like in the context of a possible case of homicide, and how might one go about applying it here? There is a way. For example, assume that everything that I have said so far about Tony Kreskin and company is made up. Imagine, if you will, that the stories that have been told were actually based on a Paul Auster novel, The Music of Chance,80 and on the filmmaker Erroll Morris, whose so-called documentary film, The Thin Blue Line, triggered a review of a capital murder case that eventually led to a dismissal of charges against a man a jury convicted and sentenced to death.81
To indulge such an assumption here (which, by the way, is an accurate one) invites a number of reactions. For one thing, it seems to invite disbelief in my credibility.82 After all, wasn’t I supposed to be discussing a real homicide case? To learn otherwise is surely a disenchanting experience. Second, it seems to deliberately collide with the narrative expectations that readers generally bring along when they encounter a law review article. Surely the reader should not expect literary criticism when he or she is seeking an analysis of law.83
Perhaps then the schema of hard-coreless postmodernism is an apt candidate for capturing the meaning of what I have been up to. Indeed, if it turned out to be the case that meaning schemata were all I cared about, without regard to the substance of reality, if I thought there was no reality, only meaning schemata, would I not be inviting you to enter a hard-coreless postmodern world in which belief cannot be sustained?
Yet that is not my belief, nor does it reflect my intent here. To the contrary, my purpose in distinguishing hard-coreless from soft-core postmodernism is to preserve a place in legal studies for the latter but to dispel the notion that a place exists for the former. Put simply, I can think of no useful role for hard-coreless postmodernism in legal scholarship. I believe that the ineradicable need for judgment, the need to reach particular outcomes in particular cases, and the need for belief to sustain the meanings that legal stories and arguments call to mind for the sake of judgment, will ensure that hard-coreless postmodernism finds no fruitful foothold in the legal field. Baldly stated, the life of hard-coreless postmodernism is a life that cannot be lived. The same cannot be said, however, about soft-core postmodernism. Unlike its schizy, hyper-real, surface-gleaming, hard-coreless cousin, soft-core postmodernism either closes around a coherent meaning or at least points to one.84 Of course it makes use of images, but it does so not for their own (insular or self-referential) sake alone. Soft-core postmodern storytelling hooks its images into coherent forms that derive from known storytelling genres, familiar stereotypes, and deeply rooted cultural myths. Thus, unlike the hard-coreless postmodern montage with its endless shifting surfaces and highly disjunctive, impersonal contiguities and free associations, here human motivation and intentionality continue to operate. In the soft-core world, internal forces (like the drive for meaning in ritual, drama, and myth) rather than wholly external forces (like chance and fate) can still account for events in the social world.85 In sum, according to the view I am affirming here, capturing belief both in straightforward, causally-sequenced tales (of detection, for instance) and in acausal, non-linear stories (of isolated imagery or latent mythic archetypes) is an inescapable part of the workaday world in which we live and in which law and lawyers operate.
In the next part of this article, I conclude with a brief illustration of the immediately preceding observation as it applies to the appellate briefs that were submitted to the Supreme Court in the landmark case of Miranda v. Arizona.86 Here we will see two sharply contrasting narratives. In one, the brief-writer, after having supplied the specific meaning schemata by which to interpret the argument being presented, expressly invites the reader to participate in a familiar deductive-syllogistic method of legal analysis, applying applicable law to a discrete set of facts. By contrast, the second brief-writer tells a surface story that presents the reader with a riddle, or perhaps one could say that it creates an enthymeme.87 For rather than explicitly providing the means of solving the riddle, or of supplying the enthymeme’s missing premise thus converting it into a proper syllogism, this brief invites the reader to complete the surface story’s meaning by drawing upon his or her own implicit world knowledge and basic beliefs.
If I am successful in this final part of the analysis, it will become apparent that to a significant extent effective lawyering requires sound narrative analysis. Examples include choice of imagery, and the associations that one’s images conjure; choice of genre, and the narrative expectations that the genre produces; choice of role for one’s audience, and the passive deference to externally posited meaning schemata or the active participation in the construction of meaning from interior sources that the role invites—these and other strategic narrative considerations are hardly self-evident. Indeed, in order to be effective they must be deliberately cultivated, consciously assessed, and reflexively practiced. Consider in this regard the stories that the Supreme Court heard in the case of Miranda v. Arizona.88
58 See generally JAMES W. STIGLER ET AL., CULTURAL PSYCHOLOGY: ESSAYS ON COMPARATIVE HUMAN DEVELOPMENT (1990).
59 See ACTUAL MINDS, supra note 32, at 48 (referring to these models as the constituents of folk wisdom); see also Ronald J. Allen, The Nature of Juridical Proof, 13 CARDOZO L. REV. 373, 403 (1991).
60 Consider, for example, how director Lawrence Kasdan, in his film Grand Canyon, makes use of the latent stereotypes that people absorb from the popular culture. In one of the opening scenes of his film we see a white male chatting on his car phone while driving a late model Lexus sedan through a poor neighborhood of Los Angeles. A BMW occupied by several young black males passes in the other direction. They exchange glances. Minutes later the white driver’s car begins to lose power. The BMW passes by again, its occupants staring at the Lexus and its driver. The Lexus driver nervously glances back at the BMW. Without having presented a single explicit image of violence in this scene, Kasdan successfully mobilizes a sense of foreboding. See GRAND CANYON (Twentieth Century Fox 1991).
61 See Allen, supra note 59, at 404–05.
62 See Witteveen, supra note 28, at 189.
63 See VICO, supra note 21. The skillful orator . . . omits things that are well known, and while impressing on his hearers secondary truth, he tacitly reminds them of the primal points he has left out and while he carries through his argument, his listeners are made to feel they are completing it themselves. This is the way in which the orator stirs their minds before he sets about arousing their emotions. Id. at 25.
64 JFK (Warner Brothers 1991).
65 Dateline NBC (NBC television broadcast, Nov. 17, 1993).
66 See, e.g., Stories of Highway Patrol (Fox television broadcast); Cops (Fox television broadcast); A Current Affair (ABC television broadcast); Rescue 911 (ABC television broadcast).
67 Of course not everyone is inclined to accept such postmodern, constructivist insights. See, e.g., Aaron Wildavsky, Jerome S. Bruner: Acts of Meaning, RESPONSIVE COMMUNITY, Summer 1991, at 78; cf. Richard K. Sherwin, In Bruner’s Defense, RESPONSIVE COMMUNITY, Winter 1991/92, at 93.
68 STAR WARS (Twentieth Century Fox 1977).
69 RED RIVER (Metro-Goldwyn-Mayer/United Artists 1948).
70 WILLIAM SHAKESPEARE, THE TEMPEST (Stephen Orgel ed., Oxford Univ. Press 1987) (n.d.)
71 See, e.g., Stanley Fish, Dennis Martinez and the Uses of Theory, 96 YALE L.J. 1773 (1987). Fish contends: (1) that in whatever form it appears the argument for theory fails, (2) that theory is not and could not be used to do what Moore, Dworkin, and the Critical Legal Studies movement want it to do, generate and/or guide practice, (3) that when theory is in fact ‘used’ it is in the way Unger so dislikes, in order ‘retrospectively’ to justify a decision reached on other grounds, (4) that theory is essentially a rhetorical and political phenomenon whose effects are purely contingent. Id. at 1781. In short, according to Fish, since we are already constituted by a particular practice or interpretive community (be it “judging” or “theorizing about judging”) there is nothing we can say, or that another can say to us, that is not already predetermined by who we and the utterer already are and what it is that we or s/he already do. See STANLEY FISH, IS THERE A TEXT IN THIS CLASS? THE AUTHORITY OF INTERPRETIVE COMMUNITIES 171–73 (1980) (suggesting that it is “interpretive communities,” rather than either the text or the reader, that produce meanings); Stanley Fish, Fish v. Fiss, 36 STAN. L. REV. 1325 (1984) [hereinafter Fish, Fish v. Fiss]. The person who looks about and sees, without reflection, a field already organized by problems, impending decisions, possible courses of action, goals, consequences, desiderata, etc. is not free to choose or originate his own meanings, because a set of meanings has, in a sense, already chosen him and is working itself out in the actions of perception, interpretation, judgment, etc. he is even now performing. Fish, Fish v. Fiss, supra, at 1333. Or as Pierre Schlag puts it (aptly noting the ultimate irresponsibility of Fish’s position): “You can’t choose your interpretive construct because you are always already within them.” Pierre Schlag, Fish v. Zapp: The Case of the Relatively Autonomous Self, 76 GEO. L.J. 37, 55 (1987). Schlag takes Fish’s deconstructive efforts a step further by deconstructing, in turn, Fish’s notion of “interpretive communities” and of the “autonomous self” who supposedly belongs to such a community. Id. at 51 (“There is no reason to believe in interpretive communities or in the relatively autonomous self.”). Perhaps Duncan Kennedy caught the drift of what’s left after such thorough deconstruction when he declared: “I want paradox and unconsciousness. Paradox and unconsciousness allow one experientially, existentially, to exist outside of the contradictionspace of separateness and unity.” Peter Gabel & Duncan Kennedy, Roll Over Beethoven, 36 STAN. L. REV. 1, 23 (1984).
72 BAUDRILLARD, supra note 56, at 8.
73 Id. at 9.
74 Id. at 14.
75 For a fuller discussion of this cultural development, see Law Frames, supra note 35.
76 See ODO MARQUARD, IN DEFENSE OF THE ACCIDENTAL 80 (Robert M. Wallace trans., 1991). A central fact about the present seems to me to be that . . . the perception of reality, and fiction [ ] increasingly take on a semifictive character, and thus tend to converge with each other. That is why it is so easy, nowadays, to ignore really terrible things and to be convinced by imagined positive things, and almost easier, even, to believe in imagined terrible things and to be blind to really positive ones—in other words, to accept what suits one and to suppress what does not. Id.
77 See Law Frames, supra note 35, at 47 n. 68.
78 TWITCHELL, supra note 56, at 51; see also BAUDRILLARD, supra note 56, at 52 (“Illusion is not false, for it doesn’t use false signs; it uses senseless signs, signs that point nowhere. This is why it deceives and disappoints our demand for meaning, but it does so enchantingly.”). What fascinates everyone is the debauchery of signs, that reality, everywhere and always, is debauched by signs. This is the interesting game, and this is what happens in the media, in fashion, in publicity and more generally, in the spectacle of politics, technology, science . . . because perversion of reality, the spectacular distortion of facts and representations, the triumph of simulation is as fascinating as catastrophe— and it is one, in effect. . . . BAUDRILLARD, supra note 56, at 74.
79 See John J. O’Connor, On TV, Truth is More Instant than Fiction, N.Y. TIMES, June 3, 1993, at C17. (“[T]he time lapse between factual event and television dramatization gets shorter and shorter. In recent weeks, NBC broadcast three ‘instant docudramas’ within four days: ‘Ambush in Waco,’ ’Hurricane Andrew: Triumph over Disaster,’ and ‘Without Warning: Terror in the Towers.’ ”); John J. O’Connor, Critic’s Notebook: The Line Between Drama and Lies, N.Y. TIMES, Dec. 31, 1992, at C11 (“Television’s current Amy Fisher Film Festival can be evaluated on several levels, not least the one that raises questions about liars and lies. The three slapdash docudramas, one each for ABC, CBS and NBC, are indeed instantly disposable programs.”). According to Judd Parkin, ABC’s senior vice-president for movies and mini-series, “We’re in the era of ‘Hard Copy.’ There are so many reality-based shows that it’s difficult for us not to pay attention to them. . . . Once a story has made the rounds, it has a presold awareness that’s impossible to create even with a best-selling book.” Jeff Silverman, Murder, Mayhem Stalk TV, N.Y. TIMES, Nov. 22, 1992, § 2, at 1, 28; see also Stark, supra note 38, at 232 (“A recent poll revealed that seventy-three percent of those children surveyed could not cite any differences between judges depicted on television shows and those in real life.”).
80 PAUL AUSTER, THE MUSIC OF CHANCE (1990).
81 See Law Frames, supra note 35. In the film, Morris exposed the Dallas DA’s frame-up of Randall Dale Adams who was sentenced to life in prison for a murder he (apparently) did not commit. See THE THIN BLUE LINE (Third Floor Productions 1988). As a result of the questions about the Adams case that Morris helped raise, the authorities re-opened the case and ultimately threw out the conviction. Motion for New Trial Hearing, Judge’s Rulings, Texas v. Randall Dale Adams, No. w-77-1286-I (Dallas Co., Texas, Nov. 30, 1988).
82 This is a cardinal sin in just about any rhetorical handbook. See ARISTOTLE, RHETORIC 24 (W. Rhys Roberts trans., Modern Library, 1954) (n.d.) (“Of the modes of persuasion furnished by the spoken word there are three kinds. The first kind depends on the personal character of the speaker. . . .”); MICHAEL E. TIGAR, EXAMINING WITNESSES (1993). When you think about stereotypes, you are dealing with a form of prejudice. You must be brutally candid. If you are a woman, does your manner play into conservative ideas about ‘shrill, hag-like’ conduct or ‘tearful whining’? Defending a corporation, do you play to type by harrumphing your way through the case in a superior manner? TIGAR, supra, at 293–94.
83 See, e.g., Mark Tushnet, The Degradation of Constitutional Discourse, 81 GEO. L.J. 251 (1992) (regarding the best manner of evaluating the use of stories in legal scholarship). Readers connect particular invented stories to the world’s reality differently from the way they connect particular factual reports to that reality. . . . An author must somehow either signal that she is using the genre of reportage or that of imaginative literature, or make it clear that she wishes to force her readers to confront the implications of blurring the genres. Id. at 273; but see Gary Peller, The Discourse of Constitutional Degradation, 81 GEO. L.J. 313 (1992). Within the evaluative frame employed by Tushnet, texts can be parsed according to the dichotomous boxes of fact and fiction, which themselves correspond to objectivity and subjectivity, the objective fact contrasted to the subjective story . . . . The formalism of Tushnet’s approach consists in believing that simply the form of presentation—a labeling as a novel—would change its meaning. The objectivism consists in believing that there is a distinction between an accurate description and a filtered re-presentation. Id. at 329.
84 See Law Frames, supra note 35.
85 See, e.g., FRANK MCCONNELL, STORYTELLING AND MYTHMAKING: IMAGES FROM FILM AND LITERATURE (1979); VICTOR TURNER, DRAMAS, FIELDS AND METAPHORS: SYMBOLIC ACTION IN HUMAN SOCIETY (1974); MAN AND HIS SYMBOLS (Carl G. Jung ed., Doubleday & Co., Inc. 1968).
86 Miranda v. Arizona, 384 U.S. 436 (1966).
87 See supra notes 62–63 and accompanying text.
88 Miranda, 384 U.S. at 436.